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REGISTRAR, ENVIRONMENT, RESOURCES & DEVELOPMENT COURT v FLEURIEU PENINSULA OLIVE PRESS P_L & ANOR [2019] SAERDC 11 (21 September 2018).txt

registrar environment resource development court v fleurieu peninsula olive press p l anor 2019 saerdc 11 21 september 2018 last updated 18 march 2019environment resource development court south australiadisclaimer every effort made comply suppression order statutory provision prohibiting publication may apply judgment onus remains person using material judgment ensure intended use material breach order provision enquiry may directed registry court generated registrar environment resource development court v fleurieu peninsula olive press p l anor 2019 saerdc 11judgment honour judge costello ex tempore 21 september 2018environment planning environmental planningcourts judge contempt punishment enforcement enforcing order court order payment moneyfleurieu peninsula olive press pty ltd george konidis sole director charged contempt failed comply order court order order consent required alleged contemnors pay cost city onkaparinga relation proceeding instituted council pursuant tos 85of thedevelopment act 1993 alleged contemnors pleaded guilty held failure comply court order pay cost amount contempt alleged contemnors guilty contempt development act 1993s 85 referred city onkaparinga v fleurieu peninsula olive press pty ltd anor 2017 saerdc 37 mahaffy v mahaffy 2013 nswsc 245 considered registrar environment resource development court v fleurieu peninsula olive press p l anor 2019 saerdc 11introductionfleurieu peninsula olive press pty ltd fleurieu george konidis konidis alleged contemnors charged contempt failed comply breached order court order made pursuant tos 85of thedevelopment act 1993 act erdc action number 14 145 konidis sole director fleurieu behalf konidis personal capacity pleaded guilty charge order referred made court 5 october 2017 record follows respondent shall pay applicant cost amount 24 200 cost paid accordance following payment schedule 2 000 31 december 2017 2 000 31 march 2018 2 000 30 june 2018 2 000 30 september 2018 2 000 31 december 2018 2 000 31 march 2019 2 000 30 june 2019 2 000 30 september 2019 2 000 31 december 2019 2 000 31 march 2020 2 000 30 june 2020 2 200 30 september 2020 total 24 200 matter initially listed hearing 12 september 2018 date informed affidavit upon city onkaparinga council proposed rely seen mr konidis therefore adjourned hearing week enable alleged contemnors consider content affidavit advised respond affidavit filing affidavit hearing continued 19 september 2018 council casein course hearing council tendered affidavit renee susan mitchell 1 manager development service council deposed history leading making order request council made mr konidis thereafter respect paying cost amount time specified order m mitchell deposed fact none payment fallen due today date received accept evidence therefore satisfied contrary term order none payment required period ending december 2017 march 2018 june 2018 made m mitchell required cross examination mr konidis oral evidence generally maintained position deposed affidavit respondent casemr konidis indicated earlier given opportunity file affidavit response accordance permission given filed affidavit 17 september 2018 affidavit said seen affidavit m mitchell 12 september 2018 result proper adjournment period equivalent period 30 may m mitchell affidavit sworn 12 september 2018 filed period 102 day order respond assertion affidavit view content affidavit call let alone require adjournment length time sought m mitchell affidavit contained uncontroversial material capable digested made subject response within matter day view effectively confirmed mr konidis filed affidavit accordance time specified 12 september namely 17 september therefore refused application adjournment hearing balance mr konidis affidavit recorded reason theoriginal order court also made consent term alleged contemnors effectively conceded undertaken development breach act made first place therefore set aside even power revisit order nothing affidavit view lead court revisit original consent order cost order subject proceeding mr konidis affidavit first appeared suggest council unreasonable pursuing proceeding acceptable workable waste processing system eventually installed secondly event complained order entered duress already dealt first proposition court earlier decision incity onkaparinga v fleurieu peninsula olive press pty ltd anor 2 concluded even though acceptable solution eventually reached alleged contemnors originally chose undertake development contrary development approval council little option institute maintain 85 proceeding went conclude proceeding compromised council would succeeded trial merit accordingly view council entitled cost order basis complaint mr konidis second proposition advanced mr konidis order agreed reason duress properly understood mr konidis asserting improper unlawful duress particularly part council rather seems something order economic duress namely duress arising reason potential council pursue bankruptcy winding proceeding alleged contemnors compromise reached said accept anything improper council action led making cost order reached conclusion part mr konidis legally represented time order made would appear made commercial decision agree payment agreed figure cost instalment circumstance hard see duress even mr konidis truly pressure unhappy agree order option open consent namely either appeal decision cost made favour council apply cost taxed presumably legal advice neither thing elected enter consent order cost background question arises alleged contemnors contempt discussionit may accepted bar finding contempt order court allegedly disobeyed order payment money 3 course mere failure contemnor pay cost automatically mean person guilty contempt example evidence disclosed failure pay due impecuniosity meant contemnorwas unableto meet cost order arguably would contempt reason advanced alleged contemnors failure comply cost order hearing particularly final submission mr konidis sought justify alleged contemnors failure pay cost order two base first original order proceeding alleging breach act made first place hence said order could set aside new order put place even order relating cost would pay cost secondly wanted meeting council ceo discus turned range matter included cost order afforded opportunity meeting 11 month neither matter revealany incapacityon part alleged contemnors meet cost order rather indicate obstinance part mr konidis steadfast refusal pay cost unless term unilaterally imposed met conclusionin circumstance therefore satisfied beyond reasonable doubt alleged contemnors guilty contempt failing comply consent order proceeding made 5 october 2017 hear party penalty imposed relation contempt 1 exhibit a1 2 2017 saerdc 37 3 mahaffy v mahaffy 2013 nswsc 245at 65 66

Beasley & Beasley [2017] FCCA 246 (17 February 2017).txt

beasley beasley 2017 fcca 246 17 february 2017 last updated 8 march 2017federal circuit court australiabeasley beasley 2017 fcca 246catchwords family law interim parenting time father spend child whether time supervised best interest child legislation family law act 1975 s 60b 60ca 60cc 61da 3 65d 65daa 3 case cited goode goode 2006 famcafc 1346 2006 flc 93 286marvel marvel 2010 famcafc 101 2010 43 fam lr 348ss ah 2010 famcafc 13eaby speelman 2015 flc 93 654banks bank 2015 famcafc 36applicant m beasleyrespondent mr beasleyfile number pac 3250 2015judgment judge newbrunhearing date 19 december 2016date last submission 19 december 2016delivered parramattadelivered 17 february 2017representationsolicitors applicant thurlows family lawyerssolicitors respondent self representedsolicitors independent child lawyer legal aid nsw bankstown family laworders pending final order 1 mother sole parental responsibility major decision relating care welfare development child x born omitted 2006 born omitted 2008 child 2 child spend time father omitted child contact centre following basis one occasion per month two hour time set staff omitted contact centre b party comply rule request direction staff omitted contact centre including relation time delivering collecting child c father responsible cost involved spending time child centre 3 mother contact omitted child contact centre 24 february 2017 register service party attend intake interview arranged service 4 party restrained denigrating parent member parent family presence hearing child 5 father undertake hair follicle testing following basis father cut hair head period 6 week date order b week commencing 3 april 2017 father present drug detection agency omitted another accredited pathology service able conduct hair follicle testing purpose providing chain custody hair sample purpose testing illicit drug use sign document required ensure result test provided independent child lawyer mother solicitor c father responsible cost involved obtaining hair follicle test 6 mother may take child counselling omitted belief necessary purpose providing support child notify father independent child lawyer child commence counselling authorise counsellor speak independent child lawyer child progress 7 father submit chain custody urine drug screening per month within 24 hour receiving request email independent child lawyer provide result testing independent child lawyer mother solicitor soon available 8 independent child lawyer liberty apply relist matter 7 day notice difficulty relation implementation order noted publication judgment pseudonymbeasley beasleyis approved pursuant tos 121 9 g thefamily law act 1975 cth federal circuit courtof australiaat parramattapac 3250 2015ms beasleyapplicantandmr beasleyrespondentreasons judgmentintroductionthis interim hearing relates child x born omitted 2006 born omitted 2008 chronologythe court respectfully adopts chronology party noting chronology refer disputed allegation issue dispute interim hearingthe essential issue dispute interim hearing whether child spend time father supervised contact centre spend time father several issue including parental responsibility telephone contact hair follicle testing material relied partiesthe mother relies upon initiating application filed 2 july 2015 affidavit filed 14 september 2016 affidavit m c filed 14 september 2016 notice risk father relies upon response filed 14 december 2015 affidavit filed 14 december 2015 5 december 2016 affidavit m filed 23 september 2015 affidavit mr filed 13 september 2016 party also relied upon various exhibit including subpoenaed document document agreed undisputed relevant factsthe party relationship commenced 2005 separated final basis april 2012 according father initially according mother april 2013 according mother father relocated brisbane sydney october 2012 2013 july 2014 often monthly basis mother took child queensland visit father late november 2014 june 2015 6 occasion child seen father supervised basis school presence mother father spent time child since june 2015 mother commenced proceeding court 2 july 2015 relevant legal principlesthe relevant principle relation parenting proceeding including interim proceeding well settled seegoode goode 2006 famcafc 1346 2006 flc 93 286 inmarvel marvel 2010 famcafc 101 2010 43 fam lr 348 full court family court australia discussed problem associated making finding disputed evidence follows 120 frequently emphasised interim parenting proceeding order made consequence necessary temporary measure evidence tested evaluated weighed final hearing making final parenting order decision judicial officer make interim proceeding difficult often good reason conservative approach one likely avoid harm child adopted often understandable distress party may achieve outcome desire think best interest child child interim parenting order frequently modified changed final hearing allocation parental responsibility made interim hearing disregarded final hearing 61db 122 s ah 2010 famcafc 13the majority boland thackray jj discussed paragraph 88 reason care necessary exercised making finding interim parenting proceeding honour said view finding made interim hearing couched great circumspection matter firmly judge intuition may suggest finding borne full testing evidence 123 later paragraph 100 honour amplified comment said intuition involved decision making concerning child arguably even greater importance judge obliged make interim decision following hearing time constraint prevent evidence tested apart relying upon uncontroversial agreed fact judge sometimes little alternative weigh probability competing claim likely impact child event controversial assertion acted upon rejected always feasible dealing immediate welfare child simply ignore assertion accuracy put issue full court ineaby speelman 2015 flc 93 654said 80 332 80 would immediately apparent approach enables court appropriately carefully deal contentious issue relevant welfare child issue ignored court also refers recent decision full court family court australia inbanks bank 2015 famcafc 36 especially paragraph 46 52 section 60bof thefamily law act 1975 cth act set object ofpart viiof act relating child inform making parenting order deciding whether make particular parenting order relation child court must regard best interest child paramount consideration section 60caof act section 60ccof act provides determining child best interest court must consider matter set subsection 2 3 making parenting order relation child court must apply presumption best interest child child parent equal shared parental responsibility child section 61daof act court making interim order presumption applies unless court considers would appropriate circumstance presumption applied making order section 61da 3 presumption equal shared parental responsibility relation child applies rebutted court must firstly consider whether child spending equal time parent would best interest child reasonably practicable equal time found child best interest impracticable result consideration one matter insection 60cc court must consider making order child spends substantial significant time defined insection 65daa 3 parent unless contrary child best interest result consideration one matter insection 60cc impracticable neither equal time substantial significant time considered best interest child impracticable court may make order discretion court think proper order best interest child result consideration one matter insection 60cc section 60ca 60ccand65d best interest childrensection 60 cc consideration 2 benefit child meaningful relationship child parent primary considerationthe child meaningful relationship mother primary carer since birth date would benefit continuance relationship child relationship father would appear child enjoy meaningful relationship father stage following party separation mother affidavit filed 14 september 2016 paragraph 46 refers child distressed late 2012 father would leave family home would cry suggests significant attachment child father time paragraph 74 mother refers period july 2013 considering taking child queensland spend time father still wanted child relationship father albeit concerned child exposed family violence mother refers paragraph 78 end october 2013 father taken child trick treating father dressed spiderman noted mother often monthly basis took child visit father queensland 2013 july 2014 albeit alleges threat father mother refers father come see child elder child birthday omitted 2014 father part affidavit refers time queensland child post separation positive always observed child happy relaxed spending time father spent short time child school 6 occasion november 2014 june 2015 court refers child statement psychologist anxiety treatment 2014 eldest child inform family consultant child inclusive conference previous time spent time father fun playing football park referred father new child explained hoped father mother would live together longer thought possible younger child also referred previous fun thing done father including going park playing football although totally clear would appear child meaningful relationship father may well adversely affected prior time commenced psychological treatment july 2014 present relationship father spent time since june 2015 particular reference statement family consultant child inclusive conference march 2016 statement psychologist treatment second half 2014 probably meaningful perhaps tenuous best child spend supervised time father contact centre proposed independent child lawyer father significant risk prospect establishing former meaningful relationship detrimentally affected context court note present waiting time parramatta registry court family report 9 month reasonably expected therefore assuming supervised time occur time family report interview child would spent time father well 2 year representing impediment prospect child establishing former meaningful relationship father child spend time father proposed independent child lawyer supervised contact centre proposed supervised visit one occasion per month 2 hour may well assist child least forming foundation stone possible establishment former meaningful relationship father court give significant weight meaningful relationship primary consideration 2b need protect child physical psychological harm subjected exposed abuse neglect family violence mother make serious allegation family violence perpetrated father presence child relationship following separation child made supportive statement child inclusive conference family consultant psychologist treated anxiety 2014 witnessed father assaulting mother fearful father father denies allegation suggests mother brainwashed child without proceeding making finding fact court view interim stage based upon evidence presently strong suggestion mother allegation family violence perpetrated father presence child may well merit support mother detailed family violence allegation statement child family consultant psychologist treated 2014 father admission past illicit drug use relationship example see father history taken psychiatrist saw father 10 november 2016 referring methamphetamine use paragraph 20 father affidavit filed 14 december 2015 referring recreational drug ice use occasion past decision leave new south wale queensland october 2012 clean father refers seeking health professional treatment anxiety mood disorder september 2014 supportive material mother allegation family violence perpetrated father presence child affidavit evidence friend m c particular relating alleged incident 17 may 2013 alleged father prevented mother child friend child leaving family home certain period witness also alleges father admitted using illicit drug including ice cannabis observed father smoke ice pipe subpoenaed record evidence reveal inter alia commenced anger management treatment psychologist early december 2016 subpoenaed record exhibit contain admission father february 2015 aware anger issue short temper receiving treatment psychologist psychiatrist court also note subpoenaed record omitted indicating inter alia february 2014 father reported bikie gang always anxious refers gunfight hypervigilance almost died three occasion nsw police record evidence police report certain incident relating father whilst obviously conclusive matter stated therein provide supportive material indicating father involvement illicit drug use including incident relating minor drug supply 23 january 2011 relating police allegedly observing father supplying ecstasy tablet 150 subpoenaed material arguably supportive mother family violence allegation particular allegation mother violence perpetrated father year 2010 2011 father submits mother allegation family violence allegedly perpetrated significantly weakened fact failure report family violence police mother turn point detailed allegation least significant period relationship post separation fearful father causing harm refers threat made father competing parenting proposal party interim hearing context need protect primary consideration father inter alia seek order child spend time omitted child contact centre one occasion per month two hour time set centre icl also proposes order child spend time father contact centre one occasion per month two hour time set centre contrary mother seek interim order time spent child father mother submits father failed complete treatment relevant mental health issue hair follicle drug testing carried reason father bald scalp court infer father hiding use illicit drug evidence court father arguably taken step rehabilitate certain respect december 2016 sought commence anger management course affidavit annex gp report 8 november 2015 referring regular consultation assistance counselling anxiety mood disorder father seen psychiatrist dr 10 november 2016 prepared report dated 21 november 2016 court note court order 15 september 2016 father obtain filed court report psychiatrist relation inter alia mental health substance use stated inter alia risk father previous depression substance use relapsing significantly le likely dr report refers discussed father condition regular gp dr known several year gp confirmed psychiatrist father good health showed sign mental health problem alcohol drug abuse recent year psychiatrist requested father undertake urine drug screen 11 november 2016 negative illicit drug context court note father affidavit filed 5 december 2016 state inter alia undertaken mental health treatment since april 2015 treatment april 2015 clearly indicated evidence referred psychiatrist report father affidavit refers cognitive behavioural therapy father anxiety involving father attending 6 session engaging well prior november 2015 contrary father evidence alleged rehabilitation mother submits material court suggests father mental health issue remain untreated court unable make finding fact context interim stage although court note example father reference mental health treatment april 2015 clearly disclosed evidence including report psychiatrist suggestion subpoenaed material father may received treatment mental health professional fully apparent father evidence accordingly court express caution reliability father evidence relating alleged mental health rehabilitation mother submits interim order made supervised time even contact centre inter alia unacceptable risk child traumatised spending time father contact centre context child submitted expressed fear spending time father child inclusive conference family consultant psychologist omitted treated anxiety relating alleged experience witnessing family violence perpetrated father mother 2014 icl submits suite proposed order exhibit c ameliorate risk child experiencing significant emotional harm spending time father contact centre proposed protective order include following order father undertake hair follicle testing chain custody urine drug screening mother permitted take child counselling omitted belief necessary purpose providing support child notify father icl child commence counselling authorise counsellor speak icl child progressthe icl liberty apply relist matter 7 day notice difficulty relation implementation icl order icl also submits likely supervision afforded staff contact centre remove risk physical harm child also reduce risk child experiencing emotional harm icl submits evidence child currently suffering emotional disturbance icl submits child treatment anxiety successful force submission father protective proposal largely mirror icl proposed order except hair follicle drug use testing consent context court considering mother submission significant risk child traumatised spending time father important consider following matter subpoenaed record omitted indicate child received psychological treatment 2014 anxiety allegedly arising witnessing family violence perpetrated father mother treatment commenced 29 july 2014 concluded early december 2014 six consultation end september 2014 least consultation consultation concluded initial psychological consultation elder child 22 july 2014 clinical note record inter alia child scared witnessed father violent aggressive seen mother hurt father stated father never physically hurt mother queensland although seemed like would refers father locking mother room psychologist clinical note 2 september 2014 record inter alia elder child reporting telephone conversation father fine however still worry event queensland think father call go state lot fear father taking brother never returned mother concern elder child repeated psychologist final consultation 9 december 2014 child stating even could sure dad take child still want see child stated 9 december 2014 cried lot father came visit school bothered anymore last consultation elder child told psychologist thought ok need come younger child 14 october 2014 also reported concern father would take brother away sydney mother last consultation 9 december 2014 younger child asked felt seeing father child referred meeting child father school stated father brought shoe still felt scared little bit father refers affidavit visited child school 6 occasion late november 2014 june 2015 specifically refers seen child school 27 november 2014 29 november 2014 27 january 2015 4 february 2015 28 march 2015 30 march 2015 june 2015 time supervised school officer presence mother mother refers child seen father school 2015 mother state one visit february 2015 elder child anxious frightened contact father bit nail mother alleges occasion child told father come want see without relevance mother seek restraining order father court seeking prevent approaching child home school commencing proceeding 2 july 2015 mother alleges 23 june 2015 father child school sister law sent message stating father proposing take child alleges child told later father told child going win court slowly alleged statement father denied also without relevance child psychological treatment concluded december 2014 mother aware father visitation child school alleged negative reaction elder child following visit february 2015 mother seek return child psychological treatment stage following father visit child school concluding june 2015 child spoke child inclusive conference family consultant 17 march 2016 elder child stated inter alia felt bit happy seeing father every time speak feel scared child referred feeling scared following father hitting mother seen occur one occasion elder child stated one thing like school keep safe stated like father used come school see younger child told family consultant also felt happy seeing father dad always hit u shout u court interpolates express evidence mother father used physical chastisement child mother told family consultant elder child anxiety symptom severe younger child symptom family consultant concluded memorandum stating inter alia child indicated fear concern safety father may reflect exposure family violence instigated father exclude possibility child statement reflected undue pressure mother child account reflected combined experience issue court note expert psychological psychiatric evidence court indicating significant risk child experiencing emotional harm spending time father supervised contact centre extent proposed icl noting icl proposed protective order child dispute conference family consultant report dated 2 february 2016 child inclusive conference family consultant report dated 17 march 2016 pas comment relation child spending time father although latter family consultant suggests indication referral family therapy post separation parenting intervention would assist time noted appropriateness referral future may ultimately depend finding fact relating family violence allegedly occurred party extent child may exposed violence child psychological treatment anxiety concluded december 2014 resumed instance mother following father visit child school significant theme child fear expressed psychologist see father might take away return mother perhaps lesser extent fear father would hurt mother clearly prospect father context supervised time contact centre would minimal reasonably anticipated supervising staff contact centre would ensure stage child supervised time father observed adversely affected emotionally visit would curtailed relevant report made could also recently anticipated supervising staff would take reasonable step ensure inappropriate comment made father child supervised time considered relevant evidence court interim hearing discussed court view need protect child risk psychological harm spending supervised time father contact centre accordance icl proposal provided referred proposed protective order icl made unacceptable risk child experiencing psychological harm spending time father circumstance section 60cc 3 additional considerations3 view expressed child factor child maturity level understanding court think relevant weight give child viewsthe court refers discussion need protect primary consideration relating statement made child psychologist 2014 child inclusive conference family consultant march 2016 child x aged 8 year 2014 child aged 6 year time march 2016 child x aged 10 year child aged almost 8 year court attache significant weight view x weight view child 3 b nature relationship child child parent person including grandparent relative child court refers discussion meaningful relationship primary consideration 3 c extent child parent taken failed take opportunity participate making decision major long term issue relation child spend time child communicate childthe child primary care mother since birth date father relocated brisbane sydney 2012 resulted spending le time previously child mother 2013 july 2014 would occasion travel monthly brisbane permit child spend time father mother contends thereafter would facilitate time child father safety reason noting family violence allegation father father contending sought spend time child latter period beyond actually occurred father travelled brisbane sydney occasion post separation spend time child 3 ca extent child parent fulfilled failed fulfil parent obligation maintain childthe mother contends father failed financially maintain child post separation whilst father appears financially supported child extent visited brisbane post separation clear father evidence regularly financially maintained child living mother sydney post separation 3 likely effect change child circumstance including likely effect child separation either parent ii child person including grandparent relative child livingshould child spend supervised time father contact centre accordance icl proposal noting protective order sought icl proposed order context court view child meaningful relationship mother detrimentally affected 3 f capacity child parent person including grandparent relative child provide need child including emotional intellectual needsthe mother would appear capacity father capacity regard view father apparent previous meaningful relationship child would appear father may well posse capacity although father may well need demonstrate insight sensitivity relating child previously expressed concern relation spending time 3 g maturity sex lifestyle background including lifestyle culture tradition child either child parent characteristic child court think relevantthe court refers need protect primary consideration 3 attitude child responsibility parenthood demonstrated child parentsthe mother appears demonstrated appropriate attitude child responsibility parenthood whilst noting allegation report family violence police reason fear father father admits prior illicit drug use relocating brisbane purpose cleaning latter context significant suggestion certain evidence court father lifestyle including possible criminal behaviour insignificant period conducive relationship family including child 3 j family violence involving child member child familythe court refers need protect primary consideration 3 l whether would preferable make order would least likely lead institution proceeding relation childthese interim proceeding 3 fact circumstance court think relevantthe court state carefully considered mother submission example mother point numerous alleged inconsistency assertion father affidavit subpoenaed record evidence suggesting father affidavit certain respect untruthful example father assertion remains new relationship m assertion certain residential address statement queensland child authority legally able travel new south wale queensland take child face restraining order court made august 2015 father present order made court feel able make finding fact respect submitted mother interim stage although cause court view reliability father allegation fact particular unsupported objective evidence caution court note mother refers complaint received queensland department community child safety disability service relating father child new relationship m queensland court unable make finding fact context interim stage note annexure father affidavit filed 5 december 2016 letter dated 18 december 2015 addressed father department stating inter alia outcome department investigation unsubstantiated child need protection relation said child icl seek urinary chain custody drug screening order father also hair follicle testing order context seek order father required grow hair 6 week noting 3 october 2016 hair follicle drug screen test could conducted father bald scalp light material court relating father past illicit drug use including methamphetamine use icl proposed urinary chain custody hair follicle drug test best interest child spend time supervised contact centre icl proposes father responsible cost spending supervised time contact centre father seek order party share cost reference court discussion need protect primary consideration order made supervised time considered reasonable father bear cost father proposed order liberal telephone contact child video contact 3 time week including video contact child christmas day view court interim stage would best interest child noting fear concern expressed psychologist 2014 family consultant child inclusive conference fact anxiety treatment psychologist equal shared parental responsibility section 61da 1 2 mother seek sole parental responsibility interim order whilst icl father seek order context mother primary carer child since birth date father spent time child since june 2015 seek order spend supervised time child one occasion month two hour time set staff omitted contact centre since 26 august 2015 restraining order court place preventing father telephoning mother child court also refers discussion need protect primary consideration family consultant child inclusive conference memorandum dated 2 february 2016 note inter alia heading co parenting relationship appears remain acrimonious relationship communication regarding child party circumstance court proposes make interim order child spend time father supervised contact centre accordance icl proposal court view best interest child make interim order mother sole parental responsibility major decision relating child care welfare development summaryevaluating primary additional consideration undersection 60ccof act court view interim stage best interest child make interim order follows 1 mother sole parental responsibility major decision relating care welfare development child x born omitted 2006 born omitted 2008 child 2 child spend time father omitted child contact centre following basis one occasion per month two hour time set staff omitted contact centre party comply rule request direction staff omitted contact centre including relation time delivering collecting child father responsible cost involved spending time child centre 3 mother contact omitted child contact centre 24 february 2017 register service party attend intake interview arranged service 4 party restrained denigrating parent member parent family presence hearing child 5 father undertake hair follicle testing following basis father cut hair head period 6 week date order week commencing 3 april 2017 father present drug detection agency omitted another accredited pathology service able conduct hair follicle testing purpose providing chain custody hair sample purpose testing illicit drug use sign document required ensure result test provided independent child lawyer mother solicitor father responsible cost involved obtaining hair follicle test 6 mother may take child counselling omitted belief necessary purpose providing support child notify father independent child lawyer child commence counselling authorise counsellor speak independent child lawyer child progress 7 father submit chain custody urine drug screening per month within 24 hour receiving request email independent child lawyer provide result testing independent child lawyer mother solicitor soon available 8 independent child lawyer liberty apply relist matter 7 day notice difficulty relation implementation order certify preceding eighty five 85 paragraph true copy reason judgment judge newbrundate 17 february 2017

Marwaha (Migration) [2020] AATA 2979 (15 May 2020).txt

marwaha migration 2020 aata 2979 15 may 2020 last updated 18 august 2020marwaha migration 2020 aata 2979 15 may 2020 decision recorddivision migration refugee divisionapplicant mr ishan marwahacase number 1935163home affair reference bcc2019 4672785member edgoosedate 15 may 2020place decision melbournedecision tribunal remit application reconsideration direction applicant meet following criterion subclass 500 visa cl 500 215 schedule 2 regulationsstatement made 15 may 2020 11 05amcatchwordsmigration student temporary class tu visa subclass 500 student health insurance australia overseas student health cover insurance detail provided upon review decision review remittedlegislationmigration act 1958 s 65 360migration regulation 1994 schedule 2 cl 500 215statement decision reasonsapplication reviewthis application review decision made delegate minister home affair refuse grant applicant student temporary class tu visa unders 65of themigration act 1958 act applicant applied visa 18 september 2019 delegate refused grant visa 27 november 2019 delegate made decision basis evidence adequate health insurance provided required satisfy criterion grant visa themigration regulation 1994 regulation 20 january 2020 tribunal received documentation evidencing applicant adequate oshc health insurance 8 january 2022 light new evidence received tribunal satisfied criterion met concluded matter remitted reconsideration reaching decision tribunal consider hearing necessary able find favour applicant basis material pursuant 360 2 act decisionthe tribunal remit application reconsideration direction applicant meet following criterion subclass 500 visa cl 500 215 schedule 2 regulationsm edgoosemember

Socobell O.E.M Pty Ltd Enterprise Agreement 2004 - 2007 - AG833418-PR950808 [2004] AIRC 805; (16 August 2004).txt

socobell e pty ltd enterprise agreement 2004 2007 ag833418 pr950808 2004 airc 805 16 august 2004 ag833418pr950808australian industrial relation commissionworkplace relation act 1996s 170lkcertification agreementsocobell oem pty ltd ag2004 2421 socobell e pty ltd enterprise agreement 2004 2007 ag833418pr945516 rubber plastic cable making industrycommissioner hingleymelbourne 16 august 2004application organisation bound 170lkagreement evidence decision 1 matter flow application automotive food metal engineering printing kindred industry union union pursuant 170m 3 theworkplace relation act 1996 act seeking bound thes 170lksocobell e pty ltd enterprise agreement 2004 2007 agreement 2 commission presently constituted granted application decision ag833418pr949545 quashed order 3 appeal union filed statutory declaration three employee seeking unders 45 6 act admitted evidence full bench regard appeal conclusion rule application 4 full bench also ruled follows circumstance given error identified satisfied appropriate grant leave appeal also consider matter importance public interest leave appeal granted quash commissioner order 7 april 2004 commissioner first instance deal union request admit evidence remit matter back direct consider application might made order determine matter regard finding para 41 42 submission union 5 mr cole behalf union submitted commission power act specificallys 111 1 admit evidence considered first instance full bench submitted para 42 full bench decision directs commission belief evidence would clarify decision first instance commission presently constituted determine accordingly admit evidence union belief real meaning statutory declaration flow submission behalf company 6 mr ogilvie appeared leave company submitted three statutory declaration filed 2 june 2004 attached union submission appeal proceeding considered full bench remitted back commission presently constituted determination application might made 7 submitted first statutory declaration statutory declaration mr hoang nguyen shop steward gave evidence first proceeding 6 april proceeding gave oral evidence cross examined opportunity give evidence taken place statutory declaration inconsistent mr nguyen oral evidence transcript pns 303 304 306 8 mr ogilvie submitted second statutory declaration mr tuan nguyen shop steward also present initial proceeding called give evidence inappropriate prejudicial company opportunity given fix deficient evidence statutory declaration filed meet requirement 170m 3 iii undated important relevant request purpose 170m 3 iii need made prior certification agreement 9 third statutory declaration m christina sepe least evidence request shop steward represent 2004 enterprise bargaining agreement fall short requirement 170m 3 iii 10 statutory declaration put together full understanding company objection application 11 statutory declaration mr jones full time union official dealt full bench assistance 12 application union bound dismissed conclusion 13 initial proceeding 6 april 2004 mr cole put commission commissioner quite clearly mean evidence satisfy commission irrespective mr dalton might say would say would need produce statutory declaration membership pending statutory declaration drawn membership discussion request made servicing organised respect lk agreement respect union taking action respect would ask certification take place pending outcome transcript pn 255 14 full bench point found commissioner rule request pr949545at para 33 rule request satisfied time request made full bench determined evidence support conclusion satisfaction directed consider application might made 15 followed guidance much mr ogilvie submitted respect allowing evidence prima facie force reached view union entitled present full case allow company test challenge weight veracity evidence 16 accordingly term ofs 110 2 111 html target section 111

R v Lesi [2005] NSWCCA 63 (1 March 2005).txt

r v lesi 2005 nswcca 63 1 march 2005 citation regina v lesi 2005 nswcca 63file number 2004 2561hearing date 15 february 2005judgment date 01 03 2005parties regina v billy lesijudgment grove j bell j buddin jlower court jurisdiction district courtlower court file number 03 21 0316 03 21 0138lower court judicial officer sorby dcjcounsel w dawe qc crown p boulten sc applicant solicitor kavanagh dpp galloway applicant catchword criminal law proceduresentenceparity co offender involved one two major criminal action additional offence relative itguideline r v henry appropriately used offence robbery companyseparate charge concerning particular victimoffender doubly sentencedtest exceptional circumstance appropriate departure guidelinein overall circumstance lesser sentence warrantedlegislation cited crime sentencing procedure act 1999s6 3 criminal appeal act 1912decision appeal dismissedjudgment court ofcriminal appeal2004 2561grove jbell jbuddin j1 march 2005regina v billy lesijudgment1grove j application leave appeal severity sentence imposed district court sorby dcj 2 applicant pleaded guilty number charge presented local court committed sentence due technical irregularity matter subject presentment indictment applicant effectively admitted guilt earliest opportunity 3 first set charge dealt committal sentence arose participation robbery victoria hotel annandale shortly 1 24 february 2002 substantive charge robbery company victim mr colin hindmarch assault victim mr alan mcilveen taken account form 1 four charge namely robbery company mr mcilveen assault intent rob leslie brock assault intent rob kate brock assault leslie brock 4 applicant unidentified co offender entered hotel closed present staff member friend offender claimed armed gun appear gun produced nevertheless constraint representation mr hindmarch forced hand cash holding hotel amounting 40 000 5 assault mr mcilveen followed compliance direction empty pocket produced set car key applicant repeatedly asked car mr mcilveen responded occasion randwick response met applicant punching head face closed fist 6 form 1 matter charge robbery company mr mcilveen involved taking watch 100 cash assault intent rob leslie kate brock involved corporal violence demand victim give everything would appear taking anything offender became distracted larger loot available cash holding hotel included poker machine receipt content automatic teller machine 7 assault leslie brock scheduled form 1 occurred applicant punched slapped kicked stomach extracting response would say nothing police mr brock barman employed hotel 8 second set charge arose event shortly 10 pm 3 june 2002 smithfield tavern smithfield first count charged armed robbery nadene heaphy assistant manager tavern weapon involved replica pistol amount taken 4 250 charge alleging applicant allowed carried stolen car related escape scene pursuant form 1 procedure charge armed robbery place date asked applicant taken account victim case mr sommer lewis amount involved 129 70 mr lewis employed tavern gaming attendant performed bar service cash payment poker machine winning patron 9 applicant one ricardo fisher unidentified third male entered tavern applicant armed replica firearm fisher 30 cm bladed knife 10 unsurprisingly event thereafter became somewhat confused one customer able make exit tavern waved passing police officer senior constable abernathy whose ordinary duty police dog handler commendably entered tavern response request help applicant fisher removed quantity cash appearance senior constable abernathy caused fisher flee car park time third male also armed knife waiting stolen motor vehicle applicant rode 11 constable seeking deal fisher third offender applicant armed pistol forced two employee rear office obtained money safe proceeded area doubt left car purpose enabling escape struggle police officer offender static one stage unidentified male threw knife senior constable abernathy evaded moving path weapon meantime police summoned fisher taken custody applicant unidentified offender escaped stolen motor vehicle 12 course time police received information member public identifying applicant one offender scientific investigation getaway car abandoned located fingerprint applicant 13 applicant arrested 20 november 2002 execution search warrant home located number item could connected robbery tavern upon interview applicant made full admission regarding fisher involvement offence applicant remained custody since 20 november 2002 14 learned sentencing judge structured imposition follows first charge robbery company annandale taking account offence form 1 imprisonment seven year six month commencing 20 november 2003 non parole period five year commencing date expiring 19 november 2008 b charge assaulting mr mcilveen fixed term imprisonment commencing 20 november 2002 date applicant taken custody expiring 19 november 2003 thus sentence first charge commenced conclusion sentence imposed charge c count 1 robbery smithfield tavern fixed term imprisonment five year commencing 20 november 2003 expiring 19 november 2008 term therefore concurrent non parole period set relation first charge abovementioned second count indictment carried stolen conveyance fixed term imprisonment six month commencing 20 november 2002 expiring 19 may 2003 term hence concurrent first six month sentence imposed assault mr mcilveen 15 effective sentence matter became total eight year six month imprisonment non parole period six year dating 20 november 2002 argument support application presented four ground ground 1 expressed honour erred failing set non parole period relation charge armed robbery upon smithfield tavern 16 senior counsel applicant pointed honour record reason declining set non parole period respect count armed robbery smithfield tavern required 45 2 thecrimes sentencing procedure act 1999 omission invalidate sentence see 45 4 17 fixed term exactly served concurrently non parole period set respect sentence robbery hotel annandale difficult perceive sought achieved suggestion written submission non parole period essential appearance sake practical benefit applicant unless non parole period varied 18 touched upon written submission specific thrust oral submission argument based parity sentence received fisher fisher involved applicant offence smithfield sentenced armitage dcj plea guilty three offence one offence taken account form 1 common applicant charged armed robbery mr sommer lewis form 1 matter applicant dealt form 1 charge armed robbery mr heaphy principal charge applicant two charge fisher armed robbery john mangarelli mobile telephone taken incursion tavern threatening injury senior constable abernathy intent avoid lawful apprehension 19 remark sentence armitage dcj provided recorded sentence two year imprisonment offence using offensive weapon prevent lawful apprehension suggested refer something different charge first described remark threatening injury intent prevent lawful apprehension sentence specified commence 3 june 2002 expire 2 june 2004 offence armed robbery imprisonment five year cumulatively upon sentence two year concurrent commencing 2 june 2004 imposed honour stated set overall non parole period four year subject provision thecrimes sentencing procedure act 1999fisher would released parole 2 june 2006 added imposing sentence taken matter form 1 account 20 thus argument behalf applicant proceeded basis fisher received effective sentence might regarded imprisonment seven year non parole period four year 21 contended however applicant faced charge relation avoiding apprehension senior constable abernathy term two year received fisher notionally excised purpose contrast comparison made sentence five year balance non parole period two year thus received fisher fixed term five year received applicant 22 approach tainted artificiality ignores sentencing judge required ass appropriate sentence offence upon conviction entered regard overall criminality determine whether sentence served concurrently wholly partly cumulatively pearce v queen1998 194 clr 610 proposition fisher received sentence five year imprisonment two year non parole period two offence armed robbery ignores structure overall sentence determined armitage dcj 23 applicant respective current construction sentence kept custody two year longer fisher becoming eligible parole viewed perspective two year span represents lenient term reflect criminality offence annandale fisher alleged involved perspective altered circumstance applicant involved crime arising intent prevent lawful detention senior constable abernathy 24 sorby dcj aware sentence imposed upon fisher specifically concluded parity relevant conclusion demonstrated error 25 ground 2 3 2 honour erred regard guideline laid inr v henry 1999 nswcca 111 1999 46 nswlr 346when sentencing applicant relation robbery upon victoria hotel annandale 3 honour erred accumulating sentence relation annandale robbery upon sentence assault upon employee hotel 26 submission revealed ground 3 focussed upon assault mr mcilveen described employee hotel present company girlfriend edith employee nothing turn upon mr mcilveen precise status 27 remark sentence sorby dcj said robbery offence fit factor within guideline judgment ofhenryand intend apply guideline robbery offence starting point determining sentencing 28 essence complaint honour formally fixed guideline inhenrywhen making comparison fact case submitted guideline case apply robbery company even though maximum penalty armed robbery identical submission said supported byr v smith 2004 nswcca 95 2004 144 crim r 577 judgment howie j sperling hidden jj agreeing appears guideline laid court criminal appeal inr v henryare extended outside range case circumstance directed however said unnecessary unhelpful honour refer guideline judgment respect one specific offence relation dealing offender completely different offence 29smithwas case offender pleaded guilty demanding money menace whilst specific offence dealt inhenrywas armed robbery howie j remark understood context perceive honour suggesting departure observation sully j spigelman cj hidden j agreeing inr v stanley 2003 nswcca 233 opinion reason either principle logic consideration enumerated chief justice paragraph 162 honour judgment inhenryshould apply mutatis mutandis thes 97offence assault company another intent rob 30 similar view expressed two judge bench simpson j smart aj inr v murchie 1999 nswcca 424 1999 108 crim r 482 31 error committed honour reference guideline articulated inhenry 32 next argument asserted honour determined sentence robbery company annandale aggravated amongst reason fact applicant assaulted several witness specifically referred fact one assault subject separate charge seems plain enough applicant sentenced twice least part assault upon mr mcilveen 33 passage honour remark upon submission founded fact appears recitation submission crown concerning level applicant culpability event reference honour specific charge form 1 matter show alert discriminate situation nominated victim distinguished witness case people present hotel nominated various charge material court included statement leslie brock mention sitting table anna edith cindy adam lastmentioned identified mr mcilveen statement show present reacted put fear offender even though suffer physical interference 34 basis concluding appellant doubly sentenced reason separate charge 35 third asserted error submitted discernible honour dealing submission head sentence set specified thehenryguideline said opinion although subjective feature reveal considerable hardship family dysfunction constitute exceptional circumstance sufficient take course submitted 36 erroneous seek identify exceptional circumstance submitted purpose exceptional indicates application high test argument made good 37 remains however court determine whether intervention reduce sentence occur although lastmentioned point determined favour applicant power court intervene exercised le severe sentence warranted law 6 3 criminal appeal act 1912 38 le severe sentence opinion warranted circumstance effective imposition lie well within bound sound exercise discretion follows would sustain fourth ground asserts sentence manifestly excessive 39 would grant leave appeal sentence dismiss appeal 40bell j agree grove j 41buddin j agree grove j last updated 01 03 2005

071844969 [2007] RRTA 331 (20 December 2007).txt

071844969 2007 rrta 331 20 december 2007 last updated 28 february 2008071844969 2007 rrta 331 20 december 2007 decision recordrrt case number 071844969diac reference clf2007 122170country reference lebanontribunal member kira raifdate decision signed 20 december 2007place decision sydneydecision tribunal affirms decision grant applicant protection class xa visa statement decision reasonsapplication reviewthis application review decision made delegate minister immigration citizenship refuse grant applicant protection class xa visa unders 65of themigration act 1958 act applicant claim citizen lebanon arrived australia applied department immigration citizenship protection class xa visa delegate decided refuse grant visa notified applicant decision review right letter day delegate refused visa application basis applicant person australia protection obligation refugee convention applicant applied tribunal review delegate decision tribunal find delegate decision rrt reviewable decision unders 411 1 c act tribunal find applicant made valid application review unders 412of act relevant lawunders 65 1 visa may granted decision maker satisfied prescribed criterion visa satisfied general relevant criterion grant protection visa force visa application lodged although statutory qualification enacted since may also relevant section 36 2 act provides criterion protection visa applicant visa non citizen australia minister satisfied australia protection obligation 1951 convention relating status refugee amended 1967 protocol relating status refugee together refugee convention convention criterion grant protection class xa visa set inparts 785and866of schedule 2 themigration regulation 1994 definition refugee australia party refugee convention generally speaking protection obligation people refugee defined article 1 convention article 1a 2 relevantly defines refugee person well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return high court considered definition number case notablychan yee kin v miea 1989 hca 62 1989 169 clr 379 applicant v miea 1997 190 clr 225 miea v guo 1997 191 clr 559 chen shi hai v mima 2000 hca 19 2000 201 clr 293 mima v haji ibrahim 2000 hca 55 2000 204 clr 1 mima v khawar 2002 210 clr 1 mima v respondent s152 2003 2004 222clr1 html class autolink_findacts 222 clr 1

Secretary to the Department of Justice & Regulation v McIntyre [2019] VSC 105 (28 February 2019).txt

secretary department justice regulation v mcintyre 2019 vsc 105 28 february 2019 last updated 19 january 2022in supreme court victorianot restrictedat melbournecommon law divisionjudicial review appeal list eci 2018 00648secretary department justice regulationplaintiffvadam mcintyrefirst defendantvictorian civil administrative tribunalsecond defendant judge garde jwhere held melbournedate hearing 8 november 5 december 2018date judgment 28 february 2019case may cited secretary department justice regulation v mcintyremedium neutral citation 2019 vsc 105 secondrevision 2 july 2019 judicial review working child check category application whether unjustifiable risk safety child likelihood future threat child paramount consideration whether paramount consideration determinative overriding consideration protection child sexual physical harm working child act 2005 vic s 1a 26a victorian civil administrative tribunal act 1998 vic 148 appearance counselsolicitorsfor plaintiffms k evans mr p panayi mr j stollerdepartment justiceworking child check unitfor defendantms isobelmst lawyershis honour introduction1 secretary department justice regulation secretary seek leave appeal leave granted appeal decision proceeding z77 2018 victorian civil administrative tribunal tribunal direct secretary give working child assessment notice assessment notice adam mcintyre first respondent leave appeal sought unders 148 1 b thevictorian civil administrative tribunal act 1998 vic vcat act 2 2005 mr mcintyre given full custody five child became full time carer child adult teenager mr mcintyre wish join workforce become landscape gardener tourist railway employer requires assessment notice theworking child act 2005 vic wwc act able mr mcintyre application category application wwc act 28 year ago aged 19 found guilty sexual penetration child 10 16 two charge 3 secretary required law refuse give assessment notice category application mr mcintyre applied tribunal assessment notice following hearing tribunal made order directing secretary give assessment notice mr mcintyre 1 4 subsequently secretary applied stay tribunal order stay application dismissed 12 september 2018 statutory framework5 section 1a wwc act provides protection child paramount consideration secretary vcat make decision take action act protection child sexual physical harm must paramount consideration 6 section 26a wwc act set requirement must satisfied tribunal order giving assessment notice category application 1 person given negative notice category application may apply vcat assessment notice given 3 vcat must make order giving assessment notice unless satisfied giving notice would pose unjustifiable risk safety child regard nature gravity offence relevance child related work b period time since applicant committed offence c whether finding guilt conviction recorded offence charge offence still pending sentence imposed offence e age applicant victim time applicant committed offence f whether conduct constituted offence decriminalised since applicant engaged g applicant behaviour since committed offence h likelihood future threat child caused applicant information given applicant relation application j matter vcat considers relevant application 4 purpose subsection 3 satisfying giving assessment notice would pose unjustifiable risk safety child vcat must satisfied reasonable person would allow child direct contact applicant applicant engaged type child related work b applicant engagement type child related work would pose unjustifiable risk safety child 5 accordance section vcat satisfied giving assessment notice would pose unjustifiable risk safety child vcat may order direct secretary give assessment notice applicant satisfied circumstance public interest tribunal decision7 setting preliminary matter tribunal observed tribunal could make order giving assessment notice category application unless satisfied giving assessment notice would pose unjustifiable risk safety child regard factor set 26a 3 5 wwc act 2 relevant considerations8 tribunal successively regard consideration listed 26a 3 para tribunal noted aged 18 mr mcintyre sex 13 year old girl considered girlfriend setting sentencing judge remark length 3 tribunal described offending serious offence obviously related child related work b para b tribunal noted 28 year since mr mcintyre committed offence offending like manner mr mcintyre committed number additional relevant offence 4 c para c tribunal observed mr mcintyre made full immediate admission police pleaded guilty charge placed 3 year 300 good behaviour bond without conviction tribunal observed lenient sentence maximum penalty time offence 10 year imprisonment 5 para e requires age applicant victim time offence taken account tribunal noted mr mcintyre 18 victim 13 year sentencing court found relationship genuine non coercive pair considered boyfriend girlfriend 6 e para f conduct decriminalised 7 f para g tribunal reviewed mr mcintyre behaviour since committed offence criminal history extending 2004 stopped since 2004 conduct exemplary reoffended sole custody raised five child largely issue concern department health human service dhhs 8 criminal history9 prior 2004 tribunal found mr mcintyre conduct behaviour far exemplary criminal history disclosed offence violence including violence child 9 10 tribunal set offence mr mcintyre committed dating back 1990 reviewed nature circumstance offence penalty imposed offence committed mr mcintyre ranged recklessly causing injury daughter september 2004 sentenced six month imprisonment served way intensive correction order cultivating cannabis unlawful assault assaulting police wilful damage theft 10 11 tribunal described incident involving mr mcintyre daughter serious offending mr mcintyre picked daughter thrown onto mattress steel framed bed daughter suffered fracture right femur resulting hospitalisation surgery 11 12 evidence tribunal mr mcintyre described happened four child plastered make bedroom flung two child onto bed daughter falling short bed breaking leg 12 dhhs note time described mr mcintyre remorseful occurred genuine concern action 13 13 case manager correction victoria reported mr mcintyre problem anger control expected commence anger management course soon 14 mr mcintyre completed anger management course case manager observed nothing gained ongoing supervision 15 14 dhhs placed child mr mcintyre care 12 month supervision order regular contact mother remained care ever since expiry supervision order dhhs closed case mr mcintyre caring child support maternal grandfather providing secure stable environment child regular contact mother occurring however involvement extended family well school physical abuse occurring child happy content protective concern 16 15 mr mcintyre gave evidence former wife argument child small described chaotic household working shift work several child age five wife suffering post natal depression family coping tribunal noted 22 year ago relation 1996 offence unlawful assault mr mcintyre agreed probably related incident threw wife bed argument one child 17 16 tribunal referred offence committed mr mcintyre far back 1991 1994 caused damage property assaulted police intoxicated acted breach intervention order committed theft tribunal discussed took account individual circumstance offence reason 18 17 mr mcintyre gave evidence much criminal history occurred younger period dealing unwell abusive mother context troubled home life period homelessness 19 mr mcintyre mother suffered huntington chorea disease affecting balance memory ability cope parent split mr mcintyre provided support condition deteriorated would hysterical mood swing abusive one minute loving next throwing child allowing visit father 20 18 tribunal described mr mcintyre present situation term mr mcintyre supportive loving relationship read reference heard evidence current partner described nothing respectful caring someone put everyone else first spoke evidence pride way brought child knew detail prior criminal history dhhs intervention gave evidence support said process negative aspect entire life examined emphasised many good positive feature personality dedicated role bringing child accepted evidence 21 likelihood future threat child19 considering likelihood future threat child 26a 3 h wwc act tribunal considered mr mcintyre past offending criminal history b lack expert opinion psychological assessment c absence offending many year nature mr mcintyre sexual offending e conclusion reached documented dhhs report material f whether evidence likelihood future threat posed mr mcintyre towards child 22 20 tribunal found mr mcintyre offending took place many year ago sexual penetration charge 22 year ago recent offence recklessly causing injury daughter 14 year ago 23 21 secretary submitted tribunal mr mcintyre offending occurred 15 year period b evidence tribunal alleviate concern likelihood repetition offence c expert opinion future threat child caused mr mcintyre provided 24 22 responding submission tribunal said agreed mr mcintyre criminal history unenviable one great concern b nevertheless lengthy period offending almost single handedly raised five child c demonstrated year could control temper mortified harmed daughter learned salutary lesson e lack psychological assessment fatal mr mcintyre application tribunal must make assessment f tribunal accepted mr mcintyre evidence unable afford cost report g individual history offending child great caution must exercised tribunal h offending description many year tribunal satisfied mr mcintyre pose future threat 25 23 whether mr mcintyre posed threat child result offending tribunal held mr mcintyre sexual offending context relationship albeit impermissible one predatory repeated b serious offence recklessly causing injury seven year old child reckless rather deliberate act mr mcintyre immediately regretted c mr mcintyre took positive action co operating police anger management counselling engagement dhhs even time offending dhhs confident would repeat supportive mr mcintyre child placed care e mr mcintyre positively actively involved child child partner child sister active parent child school f mr mcintyre conduct last 14 year blameless 26 24 weighing material tribunal satisfied evidence upon could find likelihood future threat posed mr mcintyre towards child 27 references25 tribunal considered number reference provided mr mcintyre given child painted picture dedicated active caring father reference best friend godfather child also supportive 28 conclusion unjustifiable risk26 tribunal stated conclusion whether unjustifiable risk safety child 26a 3 satisfied mr mcintyre pose unjustifiable risk safety child referring positive evidence behaviour recent year passage time since last offended 29 reasonable person test27 addition satisfied mr mcintyre would pose unjustifiable risk safety child 26a 3 tribunal must also satisfied reasonable person would allow child direct contact applicant applicant engaged type child related work b applicant engagement type child related work would pose unjustifiable risk safety child 30 28 reasonable person test tribunal held reasonable person would concerned reading mr mcintyre criminal history reasonable person would impressed prolonged demonstrable change mr mcintyre reasonable person would consider role model father would hesitate allow child direct contact mr mcintyre engaged type child related work reasonable person would impressed character witness 31 29 tribunal also satisfied mr mcintyre engagement type child related work would pose unjustifiable risk safety child praised dhhs school effort child family member close friend turned life around dysfunctional beginning individual warranting admiration within community 32 public interest test30 mr mcintyre required satisfy tribunal public interest given assessment notice 33 31 requirement tribunal held mr mcintyre put career hold 2004 onward sole parent five child child nearly grown appropriate able work outside home public interest engage meaningful work enjoyed contribute community 34 statutory scheme working children32 parliament enacted wwc act protect child sexual physical harm ensuring people work care subject screening process main purpose 35 protection child sexual physical harm paramount consideration secretary tribunal make decision take action wwc act 36 33 category offence serious offence include offence child child pornography rape whether without aggravating mitigating circumstance 37 application assessment notice person charged found guilty sch 1 offence must refused secretary 38 tribunal grant assessment notice category applicant 34 addition paramount consideration tribunal must take consideration 10 different matter satisfied 26a 3 wwc act giving notice would pose unjustifiable risk safety child however favourable consideration 10 listed matter 26a 3 satisfaction giving notice would pose unjustifiable risk safety child enough 35 tribunal must satisfied two test must satisfied reasonable person would allow child direct contact applicant applicant engaged type child related work applicant engagement type child related work would pose unjustifiable risk safety child 39 36 inzz v secretary department justice zz bell j described test unjustifiable risk requiring specified consideration addressed 40 required rational objective evidence based assessment nature degree risk notice would pose 41 decision must balanced arbitrary refusing give notice must proportionate response 42 37 meaning expression unjustifiable risk honour described risk hazard danger exposure mischance peril may great small depending probability event occurring nature hazard danger concerned 43 38 inmaleckas lkq v secretary department justice kyrou j described chance future threat relevant consideration 13 2 h wwc act 44 chance minimal consideration may favour applicant 45 greater chance le favourable consideration applicant perspective 46 protection children39 section 1a make protection child sexual physical harm paramount consideration existence paramount consideration raise question weight given paramount consideration consideration 40 limited jurisprudence 1a applied determining meaning statutory provision context general purpose policy fairness statutory provision guide meaning 47 context includes existing state law mischief legislation addressed 48 legislative history 49 structure legislation 50 judicial decision antecedent legislation 51 extrinsic material 52 context used interpret depart text statute 53 united nation convention right child41 theunited nation convention right child 54 convention ratified commonwealth executive 1991 convention provides contemporary statement legal standard existing international law right child 42 article 3 convention provides 1 action concerning child whether undertaken public private social welfare institution court law administrative authority legislative body best interest child shall primary consideration 2 state party undertake ensure child protection care necessary well taking account right duty parent legal guardian individual legally responsible end shall take appropriate legislative administrative measure 3 state party shall ensure institution service facility responsible care protection child shall conform standard established competent authority particularly area safety health number suitability staff well competent supervision 43 well established provision international treaty australia party form part australian law unless provision validly incorporated domestic law statute 55 also accepted australia international obligation although incorporated domestic law may inform interpretation statutory provision 56 44 maxwell p summarised leading high court authority expressed general common law principle inroyal woman hospital v medical practitioner board provision international treaty relevant statutory interpretation absence clear statement intention contrary statute commonwealth state interpreted applied far language permit conforms australia obligation relevant treaty 57 charter human right responsibility act45 thecharter human right responsibility act 2006 vic charter act set basic right freedom responsibility people victoria charter act operates require public authority victorian state local government agency people delivering service behalf government act consistently human right set charter act 46 section 32 charter act provides interpretation 1 far possible consistently purpose statutory provision must interpreted way compatible human right 2 international law judgement domestic foreign international court tribunal relevant human right may considered interpreting statutory provision 3 section affect validity act provision act incompatible human right b subordinate instrument provision subordinate instrument compatible human right empowered act made 47 section 17 2 charter act relevantly provides every child right without discrimination protection interest needed reason child 48 comparable right work specifically provided charter act common law still recognises right work certain purpose considered bell j inzz 58 bell j stated suggesting right work independent cause action barwick cj held inforbes v new south wale training club ltd right work legally enforceable butbuckleyand case like demonstrate certain circumstance court take account protect right work recognisable legal category right work engages public interest barwick cj said inforbes public interest exercise knowledge skill use may conduce public benefit public interest man able exercise capacity work 59 49 zzwas however decided 2013 prior introduction paramount consideration doctrine parens patriae50 protective nature wwc act paramount consideration result protective jurisdiction created wwc act 60 area legislative development extends common law doctrine parens patriae state assumes protective responsibility vulnerable child 51 doctrine parens patriae evolved common law stem ancient jurisdiction wardship court appeal decision ofre z minor freedom publication ward lj said inre l lord denning mr referred jurisdiction court chancery derives right duty crown parens patriae take care able take care child usually made ward court therefore important step child life could taken court consent machinery even property child ward court nevertheless court chancery power interfere protection infant making whatever order might appropriate 61 52 inre beth case dealing question disability child osborn ja noted parens patriae jurisdiction court directed protection child legally competent look 62 citing brennan j inmarion case honour said nature jurisdiction stated lord esher inreg v gyngall court placed position reason prerogative crown act supreme parent child must exercise jurisdiction manner wise affectionate careful parent would act welfare child already explained parens patriae jurisdiction spring direct responsibility crown cannot look includes infant well unsound mind court exercise jurisdiction case parent power consent operation well case power 63 53 inre tilly v minister family community service brereton j set decision working child clearance informed parens patriae jurisdiction court protection child harm risk harm forefront exercise protective jurisdiction 64 jurisdiction tribunal protective punitive nature 65 54 doctrine parens patriae foundational relevant question statutory interpretation paramount consideration incorporated legislation family law guardianship child welfare child protection jurisdiction across australia 66 55 lord justice ward observed inre z law stand still evolutionary process concept developed codified statutory principle test consideration protective jurisdiction concerned overarching objective protect welfare best interest child 67 mr mcintyre submission construction56 mr mcintyre submitted expression paramount consideration meant important given priority rather determinative overriding consequence statutory provision context wwc act enough look statute case law find phrase defined word necessarily consistent harmonious definition across different area law 57 support submission said wwc act required balancing protection child physical sexual harm right work freedom choice work balancing competing interest important question work great significance individual family community serious thing deny someone access chosen field employment 68 58 also submitted wwc act accepted degree risk child permissible long unjustifiable risk 69 reliance placed decision inre pjr department justice morris j said infinite gradation circumstance absolutely safe absolutely unsafe judgment required identify safe unsafe using adjective unjustifiable parliament recognised gradation risk rightly put focus whether risk unjustifiable regard specified matter 70 59 decision preceded introduction 1a parliament mr mcintyre argued protection child physical sexual harm construed require refusal assessment notice risk child small unjustifiable risk child public interest favour grant assessment notice construction paramount consideration second reading speech60 second reading speech working child amendment minister religion matter bill 2014 attorney general said 1a high court made clear legislation intended prioritise one right another must explicit legislation bill introduces overarching principle specifies protection child paramount consideration decision maker act namely secretary vcat assessing application reassessing individual introduction principle put beyond doubt protection child important consideration consideration individual right work bring act line legislation protects child thechildren youth family act 2005 vic state atsection 10that purpose act best interest child must always paramount 71 61 relevant passage paramount consideration found second reading speech paramount consideration provision compatible human right pursuant 28 charter act 72 b effect working child provision punish person criminal offence protect child 73 c introduction arching principle ensure protection child paramount consideration making decision acting pursuant wwc act also consistent promotes protective right child set 17 charter act 74 purpose objective protection child paramount consideration 75 62 review second reading speech lead number conclusion paramount consideration expressly operates prevail consideration specifically including individual right work b paramount consideration genus protective legislation protects child thechildren youth family act 2005 vic cyf act c protective nature purpose language wwc act together paramount consideration resulted protective jurisdiction created wwc act protection child context person wish work legislative development reflects historic evolution english common law doctrine parens patriae state assumes protective responsibility vulnerable child child youth family act63 term second reading speech make plain paramount consideration analogous found cyf act provides 10 purpose act best interest child must always paramount 76 64 section 10 cyf act fall within division 2 part 1 2 thereof entitled best interest principle 1 purpose act best interest child must always paramount 2 determining whether decision action best interest child need protect child harm protect right promote development taking account age stage development must always considered 65 relationship doctrine parens patriae subsumption effect paramount consideration cyf act considered bell j insecretary department human service v sanding 77 referring paramount consideration welfare child extensive line authority bell j said best interest child long standing principle parens patriae jurisdiction court history jurisdiction examined extensively lord guest inj v c concerned 1925 guardianship legislation lordship said dominant consideration always welfare child cited approval statement danckwerts lj case ofre adoption application 41 16 one first paramount consideration consideration must subordinate 78 family law act66 federal family law jurisdiction 60caof thefamily law act 1975 cth thefamily law act provides child best interest paramount consideration making parenting orderin deciding whether make particular parenting order relation child court must regard best interest child paramount consideration 67 provision reiterated in 65aaof thefamily law act relation making parenting order 68 high court held inmw v director general department community service question custody paramount consideration others yield welfare child 79 69 inu v u high court considered 65e thefamily law actwhich provides context parenting order court must regard best interest child paramount 80 plurality high court said whatever weight accorded right freedom mobility parent must defer expressed paramount consideration welfare child adversely affected movement parent 81 70 hayne j gleeson cj mchugh j agreed added circumstance would quite wrong treat decision made confined choice whatever may particular proposal parent may make residence contact child confine inquiry would case required family court ignore admittedly relevant evidence led mother would decided child live australia rather india fundamentally would confine court inquiry theparentssuggested would best interest child regardless whether suggestion informed even wholly dictated selfish interest one parent confine inquiry way would therefore disobey fundamental requirement act court regard best interest child paramount interest may may coincide one parent put forward family court appropriate arrangement residence contact 82 71 family court assessing correct approach thefamily law acthas said view essential inquiry clear best interest particular child particular circumstance case remain paramount consideration court determining issue underpart viiof type referred start essential premise remains final determinant 83 72 insmythe also considered thefamily law act gee j said p aramount equivalent sole agree respect honour use word paramount phrase paramount consideration implies may consideration although course must subordinated interest child 84 73 inpriest v priest herring cj said provision thematrimonial cause act 1959 cth court shall regard interest child paramount consideration 85 honour said fact interest child paramount consideration mean welfare consideration use word paramount show consideration excluded subordinated 86 decisions74 inpatient review panel v aby abz court appeal considered provision theassisted reproductive treatment act 2008 vic welfare interest person born born result treatment procedure paramount 87 submission panel confined considering whether initial obstruction barrier treatment court said approach would seem prioritise right mother best interest child despite fact child interest paramount consideration 88 75 later court said situation best interest child may run counter therapeutic goal however act even allow balancing act regard best interest child paramount one clear example considered vlrc best interest child may run counter woman therapeutic goal case saviour sibling limited test would mean panel would limited examining policy reason giving rise barrier applicant treatment fertility given therapeutic goal need assistance fulfil factor demonstrated would presumably remove barrier treatment however approach neglect paramount consideration welfare interest child born whether best interest child born much depend particular circumstance born circumstance vary case case necessarily involve close examination applicant partner 89 76 western australian court appeal decision ofchief executive officer department child protection v grindrod 2 concerning equivalent working child registration state wheeler bus jja said although ceo must give separate consideration criterion par f 12 8 criterion equal significance evaluative exercise ceo required perform section 3 state relevantly performing function act ceo tribunal regard best interest child paramount consideration follows 3 ceo performing function conferred 12 4 8 must regard criterion par 12 8 namely best interest child paramount consideration extent case criterion par b f conflict criterion par relevant criterion par b f must yield criterion par 12 8 always relevant paramount criterion par b f must always taken account weight accorded vary depending fact circumstance particular case case example criterion par b f may little practical significance compared paramount consideration best interest child 90 77 later western australian court appeal decision ofchief executive officer department child protection v scott 2 mclure ja said provision best interest child 12 8 one number mandatory relevant consideration taken account making discretionary judgment best interest child virtue 3 paramount view following consequence relation discretionary judgment 12 4 5 appellant must issue negative notice satisfied issue assessment notice would best interest child deliberately phrased negative rather positive discern legislative intention assessment notice issued unless appellant satisfied best interest child suggests advancing interest moreover persuaded risk harm child balanced civil right applicant ultimate issue making judgment 12 4 5 6 whether issue assessment notice would best interest child respectful opinion prejudice applicant relevant consideration 91 meaning paramount 78 foundational authority examining meaning paramount decision lord macdermott inj v c house lord called determine requirement theguardianship infant act 1925 eng regard welfare child first paramount consideration decision made act 92 79 lord macdermott said reading word ordinary significance relating various class proceeding section already mentioned seems must mean child welfare treated top item list item relevant matter question think connote process whereby relevant fact relationship claim wish parent risk choice circumstance taken account weighed course followed interest child welfare term understood first consideration first importance paramount consideration rule determines course followed 93 80 australia considered hallen j indirector generaldepartment human service course unsurprisingly definition either term best interest paramount consideration act however judicial statement meaning latter term abound thrust australian authority paramount mean overriding word indicate exclusivity 94 81 inin marriage b full court family court considered operation principle family law proceeding 95 court set step taken applicable legislative scheme court started essential premise best interest child paramount consideration 96 wording provision make clear court mustconsider various matter set subsection court required consider extent relevant particular case 97 ultimately question applying commonsense way individual section achieve best interest child 98 applying paramount consideration public interest test82 notable unjustifiable risk test applies category application wwc act 99 total 12 relevant consideration apply unjustifiable risk test category 83 paramount consideration always highest importance considering applying public interest test notion public interest broad appropriate seek define boundary public interest paramount consideration protection child sexual physical harm core public interest test 100 summary84 protection child harm paramount consideration essentially mean considering relevant matter risk child posed applicant assessed tribunal secretary must found negligible nil higher assessment level risk child offend paramount consideration unjustifiable need applicant obtain employment overridden legislative direction protect child unjustifiable risk harm arising applicant leave appeal85 148 2a vcat act leave appeal decision tribunal granted court satisfied appeal real prospect success 101 ground appeal86 amended notice appeal secretary relies two ground appeal substance considering whether satisfied giving assessment notice would pose unjustifiable risk safety child 26a 3 wwc act tribunal asked wrong question ass likelihood future threat child analysing chance nature future threat b tribunal misconstrued paramount consideration applying secretary failed substance give paramount consideration protection child regard mandatory relevant consideration review process87 reviewing tribunal decision court adopt practical well principled restraint court appeal said recent decision wwc act 148 vcat act court jurisdiction mentioned limited resolution question law dissimilar legislative context limitation said impose significant constraint upon role court reviewing tribunal decision practical well principled restraint mean court concerned looseness language tribunal unhappy phrasing tribunal thought hence reason tribunal decision review construed minutely finely eye keenly attuned perception error reality reason administrative decision maker meant inform scrutinised upon zealous judicial review seeking discern whether inadequacy may gleaned way reason expressed endeavoured take broad practical approach interpretation tribunal reason bearing foregoing principle steadily mind 102 ground 1 likelihood future threat childsecretary submissions88 secretary submitted tribunal misconstrued misapplied 26a 3 h wwc act summary following reason tribunal failed ass likelihood term chance future threat child b tribunal unable weigh potential harm child probability harm occurring c tribunal failed ass chance future threat caused mr mcintyre seriousness potential harm tribunal incorrectly framed question whether mr mcintyre posed future threat child binary way e tribunal misconstrued test addressing whether tribunal considered likelihood future threat rather likelihood future threat child f tribunal properly ass whether risk posed mr mcintyre unjustifiable one within meaning 26a 3 application public interest test 26a 5 wwc act g tribunal could matter logic assessed level future threat child zero 103 mr mcintyre submissions89 mr mcintyre submitted substance tribunal apply wrong test 26a 3 h wwc act b tribunal engaged careful comprehensive assessment evidence determine likelihood chance future harm child including seriousness potential harm c tribunal required ass threat level low medium high tribunal make assessment likelihood balance probability e even error material outcome analysis90 tribunal path reasoning show tribunal actively address turn mind whether mr mcintyre posed risk child 91 heading h likelihood future threat child caused applicant tribunal discussed evidence stated conclusion 104 also considered whether unjustifiable risk safety child required 26a 4 wwc act 105 92 tribunal referred criminal history unenviable one great concern 106 said individual history offending child great caution must exercised tribunal 107 93 statement make clear tribunal consider absence countervailing circumstance likelihood chance future threat child might caused mr mcintyre 94 however countervailing circumstance tribunal view operated mitigate risk offending took place 27 14 year ago 108 b lengthy period offending 109 c period mr mcintyre almost single handedly raised five child 110 despite stressor reoffend 111 e demonstrated control temper 112 f mortified done daughter learnt salutary lesson 113 g sexual offending properly characterised judge villaneuve smith sentencing judge product mutual affection case exploitation predatory 114 h offending description many year 115 dhhs confident would repeat reckless offending caused injury seven year old daughter 116 j dhhs recorded significant safety demonstrated child feel scared home 117 k child school raised concern child safety father care provided consistent feedback father highly supportive child 118 l mr mcintyre positively actively engaged child child partner sister 119 conduct last 14 year blameless 120 n supportive loving relationship respectful caring putting others first 121 presented number reference supportive character witness 122 95 simple term tribunal found inherent risk child resulting mr mcintyre conviction 1991 subsequent criminal history negated positive factor listed 96 submission made secretary correct say tribunal failed ass likelihood future threat child concluded countervailing circumstance lessened ultimately cancelled inherent risk associated mr mcintyre past criminal behaviour tribunal able weigh potential harm child responsibility harm occurring 97 term indicia discussed inzz tribunal evaluation risk rational objective evidence based 123 arbitrary proportionate decision circumstance 124 risk arose mr mcintyre past criminal behaviour offset positive factor tribunal listed tribunal risk assessment evaluative judgment giving notice would pose unjustifiable risk safety child 125 98 reject submission tribunal approached task binary fashion tribunal correctly stated must make assessment threat caused mr mcintyre based material 126 decision evaluative multi factorial highlighted concern criminal history caution needed history offending 127 however mitigating factor listed negated risk tribunal view 99 also reject secretary submission use tribunal indefinite article rather definite article qualify word likelihood found 26a 3 h wwc act showed erred 100 tribunal correctly set consideration found 26a 3 h 128 held must make assessment threat caused mr mcintyre concern likelihood repetition 129 101 tribunal satisfied mr mcintyre pose threat evidence could find likelihood future threat posed mr mcintyre towards child mean tribunal adopted wrong test rather represented conclusion following evaluative process adopted tribunal taking account countervailing circumstance tribunal determined mr mcintyre pose threat evidence tribunal tribunal able conclude likelihood future threat much important use definite indefinite article intellectual process adopted tribunal 102 said tribunal weighed conflicting factor ultimately concluding mr mcintyre pose future threat safety child engagement child related work pose unjustifiable risk safety child 103 well established decision administrative decision maker tribunal construed minutely finely eye keenly attuned perception error 130 scrutinised upon zealous judicial review 131 rather court must read tribunal reason fairly context whole 132 court expect degree exactitude language might found reason judgment court 133 avoid overly pernickety examination tribunal reason 134 court examine briefly stated reason expert tribunal overzealous drawing inference order disclose supposed error 135 conclusion104 reason given reject secretary submission tribunal asked wrong question ass likelihood future threat child tribunal engaged detailed assessment evidence determine likelihood future threat satisfied evidence upon could find likelihood future threat posed mr mcintyre towards child ultimately satisfied mr mcintyre pose threat child unjustifiable risk child work contribute community 136 105 ground 1 fails ground 2 tribunal misconstrued paramount consideration failed give paramount consideration protection child harm failed regard mandatory relevant considerationsecretary submissions106 secretary submitted court conclude tribunal failed give effect paramount consideration set 1a wwc act following main reason tribunal consider predominant purpose reason b tribunal refer predominant purpose decision say bound secretary c tribunal state decision predominant purpose bound tribunal mr mcintyre submissions107 mr mcintyre submitted tribunal regard predominant purpose set 1a wwc act following reason predominant purpose woven whole decision b tribunal attention focused predominant purpose gave genuine realistic consideration 108 insecretary department justice regulation v vtn vtn richards j refused appeal secretary secretary alleged error law failing consider apply 1a wwc act said must read reason fairly context whole overzealous searching error taking approach clear deputy president attention properly focused protective purpose legislation gave genuine realistic consideration protection child harm would perhaps preferable reason referred 1a provision verbal formula must recited like mantra reason decision matter vcat substance give paramount consideration protection child harm 1a exclude matter protection child consideration assessing unjustifiable risk public interest indeed wwc actrequiresthat range consideration taken account relevantly matter set 26a 3 4 5 section 1a inserted wwc act make clear protection child important consideration consideration individual right work consideration may still bear assessment whether identified risk unjustifiable whether circumstance public interest direct notice given regard important recall key finding vcat case vtn pose low threat child satisfied vcat failed give paramount consideration protection child harm indeed reading reason whole positively satisfied contrary burden establishing failure consider apply 1a wwc act rest secretary enough vcat reason expressed suggest possibility error law secretary demonstrate fact error law discharge burden 137 analysis109 tribunal stated secretary make decision whether grant assessment notice protection child sexual physical harm paramount consideration accurate statement inapposite mr mcintyre committed category offence secretary required law refuse give assessment notice 138 addition statement incomplete omitted state paramount consideration applies tribunal tribunal required treat protection child sexual physical harm paramount consideration decision making 139 110 none mean however tribunal made decision act basis protection child sexual physical harm paramount consideration seen follows fact 111 well established everything relevant decision maker omits refer taken overlooked however something considered referred nature decision suggests error made due matter considered court may properly draw inference 140 112 richards j said invtn would preferable reason referred 1a paramount purpose applied tribunal 1a verbal formula must recited like mantra reason decision 141 matter tribunal substance give paramount consideration protection child harm 142 113 tribunal reason show tribunal considered child protection safety every turn tribunal review mr mcintyre criminal history pay particular attention mr mcintyre conduct involved child victim 143 b tribunal gave particular attention mr mcintyre contribution nurture development child sister partner friend ongoing relationship 144 c tribunal carefully considered gave weight report assessment made dhhs correction victoria school officer concerning mr mcintyre capacity relationship child 145 tribunal noted mr mcintyre successful completion education employment anger management course 146 e tribunal benefit seeing mr mcintyre partner human resource manager give evidence cross examined mr mcintyre past likely future conduct towards child f tribunal benefit written statement view number witness including two mr mcintyre child sister 114 tribunal scrutiny analysis extended comprehensive documentation dhhs included active consideration protective concern mr mcintyre b dhhs assessment best interest safety child including daughter c report including child well report 2008 last dhhs involvement dhhs assessment lack likelihood risk harm posed mr mcintyre child general support 147 e praise mr mcintyre dhhs school effort child engagement 148 conclusion115 accept submitted behalf mr mcintyre tribunal attention firmly focussed protective purpose legislation tribunal gave active genuine realistic consideration protection child harm drawing evidence cross examination mr mcintyre partner decade documentary evidence police dhhs correction victoria 116 tribunal actively reviewed sentencing remark judge villeneuve smith gravity mr mcintyre conduct context protection young girl mitigating factor relating offending 149 117 tribunal found evidence upon could find likelihood future threat posed mr mcintyre toward child 150 found reasonable person would consider mr mcintyre role model father 151 b reasonable person would hesitate allow child direct contact mr mcintyre whilst engaged type child related work 152 c reasonable person would impressed evidence mr mcintyre character witness 153 mr mcintyre engagement would pose unjustifiable risk safety child 154 e mr mcintyre turned life around dysfunctional beginning individual warranting admiration within community 155 f public interest mr mcintyre engage meaningful work enjoys contribute community 156 g mr mcintyre pose threat child unjustifiable risk child 157 118 view fair reading tribunal reason plain predominant concern tribunal protection child sexual physical harm overlooked paramount consideration 1a act examined tribunal given effect number different standpoint pervades tribunal reason woven tribunal decision paramount consideration heart tribunal decision 119 result ground 2 fails conclusion120 reason given ground relied secretary fail allow leave appeal ground dismiss appeal 1 mcintyre v secretary department justice regulation 2018 vcat 1041 dplambrick tribunal decision 2 ibid 7 3 ibid 9 10 4 ibid 13 14 5 ibid 10 6 ibid 16 7 ibid 17 8 ibid 20 9 ibid 18 10 ibid 18 49 11 ibid 24 12 ibid 26 13 ibid 27 14 ibid 30 15 ibid 33 16 ibid 35 17 ibid 38 39 18 ibid 37 47 49 19 ibid 23 20 ibid 42 21 ibid 60 22 ibid 61 75 23 ibid 61 24 ibid 62 64 25 ibid 64 68 26 ibid 74 27 ibid 75 28 ibid 76 77 29 ibid 79 80 30 wwc act 26a 4 b 31 tribunal decision 84 32 ibid 87 88 33 wwc act 26a 5 34 tribunal decision 89 90 35 wwc act 1 1 36 ibid 1a 37 ibid sch 1 38 ibid 12 2 39 ibid 26a 4 40 2013 vsc 267 134 zz 41 ibid 42 ibid 43 ibid 138 44 2011 vsc 227 2011 34 vr 23 36 72 45 ibid 46 ibid 47 ab v western australia 2011 244 clr 390 398 10 citingcommissioner railway nsw v agalianos 1955 hca 27 1955 92 clr 390 397 dixon cj quoted b v child court victoria 2012 vsc 589 74 48 ibid citingcic insurance ltd v bankstown football club ltd 1997 187 clr 384 408 49 board bendigo regional institute technical education v barclay 2012 hca 32 2012 248 clr 500 516 521 41 52 french cj crennan j 525 536 72 106 gummow hayne jj 50 h v minister immigration citizenship 2010 fcafc 119 2010 188 fcr 393 406 407 50 51 moore kenny tracey jj citation omitted 51 act interpretation act 1901 cth 15ab interpretation legislation act 1984 vic 35 b roadshow film pty ltd v iinet ltd 2012 hca 16 2012 286 alr 466 472 22 480 52 french cj crennan kiefel jj k generation pty ltd v liquor licensing court 2009 hca 4 2009 237 clr 501 521 522 50 53 french cj 52 board bendigo regional institute technical education v barclay 2012 hca 32 2012 248 clr 500 518 521 47 52 french cj crennan j 525 536 72 106 gummow hayne jj australian finance direct ltd v director consumer affair victoria 2007 hca 57 2007 234 clr 96 108 109 19 22 gleeson cj gummow hayne crennan jj ab v western australia 2011 244 clr 390 398 10 french cj gummow hayne kiefel bell jj citation omitted 53 ab v western australia 2011 244 clr 390 398 10 french cj gummow hayne kiefel bell jj citation omitted saeed v minister immigration citizenship 2010 hca 23 2010 241 clr 252 264 265 31 french cj gummow hayne crennan kiefel jj stevens v kabushiki kaisha sony computer entertainment 2005 hca 58 2005 224 clr 193 206 208 30 34 gleeson cj gummow hayne heydon jj h v minister immigration citizenship 2010 fcafc 119 2010 188 fcr 393 406 50 citation omitted 54 united nation convention right child convention entered force 20 november 1989 ratified australia 17 december 1990 entered force 16 january 1991 55 minister immigration ethnic affair v teoh 1995 hca 20 1995 183 clr 273 56 dpp v kaba 2014 vsc 52 2014 44 vr 526 555 93 bell j 57 2006 vsca 85 2006 15 vr 22 39 75 quoted inmedical board australia v kemp 2018 vsca 168 b v c 2017 vsca 338 kemp v medical board australia 2017 vsc 691 arora v melton christian college 2017 vcat 1507 tikiri pty ltd v fung 2016 50 vr 786 holloway v commonwealth australia 2016 50 vr 417 ryan v state victoria 2015 vsca 353 58 zz n 40 73 59 ibid 76 citation omitted 60 seepqr v secretary department justice regulation 2 2017 vsc 514 56 bell j 61 1995 4 er 961 968 citingre l 1968 1 er 20 24 62 2013 vsc 189 2013 42 vr 124 147 115 63 2013 vsc 189 2013 42 vr 124 citingsecretary department health community service v jwb marion case 1992 hca 15 1992 175 clr 218 279 80 64 2015 nswsc 1208 52 53 65 commissioner child young people v fz 2011 nswca 111 61 young ja see alsocgb v child guardian 2018 nswsc 776 32 harrison asj 66 seeayu v nsw office child guardian 2014 nswcatad 69 75 67 1995 4 er 961 972 citation omitted 68 seezz n 40 bell j 69 seemaleckas v secretary department justice 2011 vsc 227 43 kyrou j 70 2006 vcat 2455 2006 25 var 336 339 10 71 victoria parliamentary debate legislative assembly 7 august 2014 2651 2653 robert clark attorney general 72 ibid 2651 73 ibid 2652 74 ibid 2653 section 17 2 provides every child right without discrimination protection best interest needed reason child 75 ibid 2653 76 parliamentary debate n 71 2653 77 2011 vsc 42 2011 36 vr 221 78 ibid 12 citation omitted 79 2008 hca 12 2008 82 aljr 629 gummow heydon crennan jj citingmckee v mckee 1951 ac 352 365 lord simonds lord merriman simonds morton radcliffe tucker 80 2002 hca 36 2002 211 clr 238 provision repealed 81 ibid 262 89 gummow callinan jj gleeson cj mchugh hayne jj agreeing 82 ibid 284 285 171 emphasis original 83 marriage b 1997 flr 11 72 nicholson cj fogarty lindenmayer jj 84 marriage smythe 1983 famca 27 1983 48 alr 677 687 688 85 1965 vicrp 71 1965 vr 540 86 ibid 547 herring cj dissent see also dean j 554 555 gowans j 560 87 2012 vsca 264 2012 37 vr 634 seeassisted reproductive treatment act 2008 vic 5 88 ibid 646 62 89 ibid 648 649 74 76 citation omitted 90 2008 wasca 28 2008 36 war 39 55 56 70 71 91 2008 wasca 171 2008 38 war 125 130 131 17 23 citation omitted 92 1969 1 er 809 93 ibid 820 821 94 2011 nswsc 369 89 citation omitted 95 1997 flr 11 96 ibid 72 97 ibid emphasis original 98 ibid 72 73 99 category application test applied tribunal 26a 3 4 category b application secretary applies test 13 2 3 wwc act tribunal 26b 1 2 category c application secretary applies test 14 2 3 tribunal 26c 1 2 wwc act 100 secretary department justice v lmb 2012 vsca 143 25 28 citation omitted pjr v secretary department justice 2006 var 336 339 9 101 justice legislation amendment court security jury matter act 2017 vic 31 3 commenced 1 may 2018 superseding test insecretary department premier cabinet v hull 1999 vsca 117 1999 3 vr 331 102 secretary department justice regulation v oux 2018 vsca 178 36 oux citation omitted 103 relying onwilliamson v director public prosecution 2001 1 qd r 99 new south wale v nason 2 2016 nswsc 1804 41 batton j 104 tribunal decision 61 75 105 ibid 84 88 106 ibid 65 107 ibid 67 108 ibid 61 109 ibid 65 110 ibid 111 ibid 112 ibid 113 ibid 114 ibid 10 69 115 ibid 68 116 ibid 70 71 117 ibid 72 118 ibid 73 119 ibid 74 120 ibid 121 ibid 60 122 ibid 76 77 123 zz n 40 134 124 ibid 125 tribunal decision 67 75 87 89 126 ibid 66 127 ibid 65 67 128 ibid 61 75 129 ibid 66 62 130 collector custom v pozzolanic enterprise pty ltd 1993 fca 356 1993 43 fcr 280 287 minister immigration ethnic affair v wu liang 1996 185 clr 259 272 wu liang oux n 102 36 131 wu liang n 130 272 caruso v kite 2008 vsc 207 32 kyrou j citation omitted 132 shock record pty ltd v jones 2006 vsca 180 85 bell aja callaway ashley jja agreeing 133 dudas v monash city council 2012 vsc 578 106 kaye j citation omitted 134 roncevich v repatriation commission 2005 hca 40 2005 222 clr 115 136 64 kirby j 135 vega nominee pty ltd v werribee sport community club inc 1994 14 aatr 73 ashleyj 136 tribunal decision 90 137 secretary department justice regulation v vtn 2018 vsc 296 43 46 vtn citation omitted emphasis original 138 wwc act 12 2 139 ibid 1a 140 charnley glen v boroondara city council 2000 vsc 340 balmfordj referring toyendall v smith mitchell company ltd 1953 viclawrp 35 1953 vlr 369 379 sholl j harrison v mansfield 1953 viclawrp 38 1953 vlr 399 404 sholl j b marsh nominee pty ltd v city moonee valley or 2004 vsc 237 25 osborn j 141 vtn n 137 44 142 ibid 143 tribunal decision 9 11 16 144 ibid 1 19 20 23 26 30 34 51 60 74 76 77 84 86 145 ibid 27 30 32 33 35 50 53 55 71 75 88 146 ibid 1 56 58 59 90 147 ibid 19 27 30 50 56 148 ibid 88 149 ibid 8 10 45 65 69 150 ibid 75 151 ibid 84 152 ibid 153 ibid 154 ibid 87 155 ibid 88 156 ibid 90 157 ibid

James Francis Wright v Alti Lighting [2001] WAIRComm 2802 (14 May 2001).txt

james francis wright v alti lighting 2001 waircomm 2802 14 may 2001 last updated 5 july 2007100105645western australian industrial relation commissionpartiesjames francis wrightapplicant v alti lightingrespondentcoramcommissioner j f gregordeliveredmonday 14 may 2001file noapplication 365 2001citation 2001 wairc 02802____________________________________________________________________________resultwithdrawn____________________________________________________________________________orderwhereas 26 february 2001 james francis wright applied commission order pursuant theindustrial relation act 1979 andwhereas 6 may 2001 commission advised applicant wished withdraw application andwhereas commission granted leave withdraw proceeding therefore pursuant power vested theindustrial relation act 1979 commission hereby order application hereby withdrawn leave commissioner j f gregor

DPP v Bahouche [2023] VCC 2267 (1 December 2023).txt

dpp v bahouche 2023 vcc 2267 1 december 2023 last updated 14 december 2023in county court victoriaat melbournecriminal divisionrevisednot restrictedsuitable publicationcase cr 23 01362director public prosecutionsvmohamed bahouche judge honour judge blairwhere held melbournedate hearing 1 december 2023date sentence 1 december 2023case may cited dpp v bahouchemedium neutral citation 2023 vcc 2267reasons sentence subject criminal law sentencecatchwords sentence indication hearing criminal damage intentionally cause injury trespass plea guilty rehabilitationlegislation cited sentencing act 1991cases cited sentence 416 day imprisonment served pre sentence detention appearance counselsolicitorsfor director public prosecutionsmr hardjadibrataoffice public prosecutionsfor offendermr r bhattacharyaemma turnbull lawyersher honour mohamed bahouche matter listed plea guilty 27 november 2023 consent prosecution counsel made application matter proceed sentence indication rather plea allowed application today gave firm indication sentence would impose circumstance concerned ensure suitable plan support available release community today advised enquiry made variety service provider detail service provider together detail worker reconnect previously spoken confident able find housing upon release accordingly indicated upon plea guilty charge court would impose term imprisonment equivalent served would give adjourned undertaking conviction form monitoring progress community advised accepted indication pleaded guilty charge indictment addition consented summary related offence heard court pleaded guilty charge charge trespass circumstance offendingthe agreed factual basis offending set prosecution opening plea dated 24 november 2023 tendered plea hearing marked exhibit two complainant matter gitza dragarska ricky scanlan time offending mr scanlan staying m dragarska ex partner address greensborough mr scanlan known spent time together gaol released custody 9 october 2022 contact m dragarska collect property stored address whilst gaol m dragarska responded message telling property agree coming address around 9 40 10 october 2022 m dragarska observed walk driveway enter front yard gate told get fuck get property get away refused leave m dragarska contacted police approximately 10 left property mr scanlan inside property m dragas told let inside mr scanlan come front door hearing m dragarska screaming front wooden door open flyscreen security door locked front door mr scanlan could hear enter garden shed breaking lock charge 1 criminal damage returned front property approached security door mr scanlan saw shake door use sort tool break open charge 1 criminal damage got inside hit mr scanlan head torch blow caused laceration approximately three four centimetre back mr scanlan head bled profusely whilst mr scanlan floor continued hit across face jaw torch also kicked body leg charge 2 intentionally cause injury related summary charge 10 trespass mr scanlan used leg kick away fell backwards followed bathroom laundry demanded give phone instead mr scanlan hit neck phone ran front door house approximately 10 10 police officer attended address observed mr scanlan sitting driveway one officer saw deep bloodied laceration back head numerous bruise leg torso swelling right cheek numerous abrasion body mr scanlan taken ambulance austin hospital medical material filed relation injury sustained mr scanlan however photograph included depositional material depict injury torch property police saw removing item property garden shed placing carport placed arrest taken heidelberg police station interview record interview told police sent text message m dragarska asking legal document said thrown said gone reservoir police station spent 20 minute talking officer asking assistance retrieve property context gone property intention pick belonging civilly m dragarska told fuck leaving car said mr scanlan told item shed admitted using hammer open latch force way found property confronted mr scanlan screen door closed whether identification card property confrontation inside denied using hammer hit screen door might also say record interview gave explanation consistent self defence disarmed mr scanlan torch used torch manner victim impacta victim impact statement m dragarska read prosecutor court statement marked exhibit c plea m dragarska described offending left feeling consistently anxious afraid significant anxiety experience social setting leave house inhibited ability see family friend run every day errand pursue interest require interaction others also report issue sleeping nightmare offending left feeling violated home caused move another address known although mr scanlan make victim impact statement accept statement said essence frightening experience affected mentally psychologically addition said suffered ongoing pain injury take account sentencing impact offending victim nature gravity offendingin determining gravity offending regard maximum penalty offence 10 year intentionally cause injury criminal damage six month imprisonment 25 penalty unit offence trespass maximum penalty offence yardstick set parliament starting point considering objective seriousness prosecution submitted assessing gravity offending consider charge intentionally causing injury serious charge court submitted sustained assault several area body torch punch kick occurred inside victim house offending caused injury required mr scanlan spend five hour emergency department local hospital relation offence prosecution submitted damaged lock shed front door trespassed house refused entry m dragas counsel conceded offending towards mid range seriousness offending type occurred inside victim home used weapon however counsel also submitted made enquiry police asked assistance clear gone address cause trouble wanted return property went m dragarska house reasonable time morning release custody day accept went retrieve property entirely necessary identification document card accept police assistance assistance forthcoming crime family violence order place mr bahouche rather break shed enter house assault mr scanlan returned police asked assistance instead popped lock shed found property gained entry house assaulted mr scanlan torch accept torch something brought weapon something able use manner event unfolded injury caused mr scanlan see depicted photograph depositional material consisted laceration top head several bruise abrasion leg face consider aggravating feature offending occurred place mr scanlan staying somewhere able feel safe hit mr scanlan head vulnerable region body accept attended reason gave record interview attended alone reasonable hour day offending short duration premeditated event unfolded quickly personal circumstancesyou currently 45 44 time offending grew melbourne care parent immigrant lebanon left school year 11 start apprenticeship refrigeration two year leaving construction industry 2019 following release period time spent custody worked briefly landscaper 2011 commenced relationship m dragarska ended 2018 following period reconciliation separated final time 2021 long history illicit drug use began early 20 escalated following breakdown relationship m dragarska 2018 factor align start vast majority prior criminal history 2018 sentenced 12 month community correction order trafficking methamphetamine possession several drug dependence went breach order 2019 several drug related offence drug related offending continued 2020 2022 relevant prior 2022 sentenced two separate occasion charge related criminal damage contravention interim family violence intervention order unlawful assault day prior current offending released custody serving sentence one year two month imprisonment released parole relation charge unlawful assault contravention intervention order remand current matter since arrested 10 october 2022 court advised working canteen whilst custody stopped work recently order complete certificate related entering workforce preparation release also spent time remand completing course program relating addiction healthy relationship well attending alcoholic anonymous narcotic anonymous matter mitigationyou pleaded guilty charge take account favour although may necessarily said early plea matter resolved way favourable serious charge aggravated burglary withdrawn necessitated time negotiation accept plea spared court time expense trial significant utilitarian value accept plea facilitated course justice spared mr scanlan m dragarska giving evidence trial take account benefit plea context court backlog though easing still relevant issue case entered court process circumstance propose give significant discount plea guilty counsel submitted remorseful offending regard pointed answer record interview view answer thought everything right walked property opened garage forcefully knew wrong cop injury speak acceptance responsibility wrongdoing way together plea indicate remorse testimonial tendered court today peter wroblewski area coordinator victorian prison aa na said relationship mohamed advised way discussion numerous meeting past experience addiction consequence offending well genuine remorse offending regret harm caused victim often brought prison considerable amount time using desire recover aa na 12 step program recovery well involvement program incarcerated caraniche atlas od anger management commitment rehabilitation view significant expression remorse receive letter peter wroblewski counsel tendered bundle certificate variety program completed whilst remand indicates taken important step accepting responsibility offending undertaking treatment deal difficult issue led offend circumstance accept remorse genuine addition commitment change evidence good prospect rehabilitation despite reasonably lengthy prior history regard history previously noted limited history matter involving violence sentencing principlesthe basic purpose court may impose sentence punishment general deterrence specific deterrence rehabilitation denunciation protection community general deterrence remains primary purpose sentencing case given seriousness offending weight however given specific deterrence somewhat moderated light rehabilitation undertaken custody relative lack prior conviction violent offending case regard protection community relevant consideration however consider best achieved rehabilitation case reduce risk offending future take account sentencing guideline referred ins5of thesentencing act relevant case 1 particular regard sentencing landscape offending particularly intentionally cause injury ultimately sentencing exercise requires balance relevant factor make judgment appropriate sentence circumstance particular case principle totality proportionality parsimony also important consideration case require make sure total sentence appropriate total criminality taken principle account fixing sentence impose weighing relevant matter consider sentence imprisonment required circumstance case sentencing factor general deterrence punishment denunciation addressed imposition term imprisonment announce shortly dispositionmr bahouche relation charge court convicted consider charge founded fact form part series offence similar character plan deal matter imposition aggregate term imprisonment relation charge court convicted sentenced 416 day imprisonment declare time served way pre sentence detention mr bahouche decided indication gave ask enter undertaking good behaviour done occurred 45 system able manage without supervision court na aa meeting attend detail accommodation service friend murrumbeena spoke might still option also detail reconnect doubt used service know help get identification organised also help potentially phone similar able assist presumably might withholding little bit money upon release well intend relation tos6aaaof thesentencing actbut plea guilty penalty would imposed sentence two year six month non parole period 20 month 2 plea guilty saved significant amount time custody mr bahouche anything mr hardjadibrata sorry honour aggregate sentence relation three charge honour yes changed mind mr hardjadibrata yes thank honour mr bhattacharya honour plea mr hardjadibrata thank honour plea hopefully everything work mr bahouche make sure go back try retrieve document know know m dragarska life suppose imposing sentence taking word record interview understand relationship certainly think going go seek mr scanlan want know end need tell must say quite impressed certificate reference mr wroblewski commitment room 12 step program need focus attention okay alright adjourn court 1 sentencing act 1991s 5 2 ibids 6aaa

Sofianos v Moonee Valley CC [2004] VCAT 477 (25 March 2004).txt

sofianos v moonee valley cc 2004 vcat 477 25 march 2004 last updated 6 april 2004victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference p1759 2003catchwords4 dwelling unit overdevelopment bulk scale characterapplicantharry sofianos associatesrespondent responsible authoritymoonee valley city councilother partiesj mirigliano orssubject land20 newsom st ascot valewhere heldmelbournebeforejohn quirk memberhearing typemerits review sec 79 failure grant permit prescribed timedate hearing15 march 2004date order25 march 2004citation 2004 vcat 477ordera permit granted issue 4 two storey dwelling 20 newsom street ascot vale accordance endorsed plan subject following condition 1 use development start tree vegetation removed amended plan three copy must submitted approved satisfaction responsible authority plan must drawn scale dimension generally accordance plan submitted application modified show location existing tree site removed retained clearly shown b new crossover constructed shown double crossover adjoining property c reference visitor space removed tandem space marked accordingly detail proposed retaining wall e 6m3storage area unit increased sized garage unit 1 3 basement area unit 4 f floor ceiling height ground floor unit 1 decreased 2700mm g ground floor finished level unit 2 lowered 300mm 2 layout site size design location building work permitted must always accord endorsed plan must altered modified without written consent responsible authority 3 prior commencement development evidence must submitted indicating dwelling achieve four star energy efficiency rating minimum satisfaction responsible authority 4 development shall provided external lighting capable illuminating access garage car parking space pedestrian walkway lighting shall located directed shielded limited intensity nuisance loss amenity caused person within beyond site 5 floor level shown endorsed plan must altered modified without written consent responsible authority 6 provision must made drainage site including landscaped pavement area satisfaction responsible authority 7 drainage work undertaken must done accordance requirement moonee valley city council engineering service department satisfaction responsible authority 8 piping ducting ground floor storey building shall concealed 9 area set aside parking vehicle together associated access lane delineated endorsed plan shall provided completed satisfaction responsible authority prior commencement use hereby permitted b thereafter maintained satisfaction responsible authority c made available use time used purpose properly formed level used accordance endorsed plan e drained sealed weather seal coat satisfaction responsible authority 10 standard concrete vehicular crossing must constructed suit proposed driveway accordance responsible authority standard specification vehicle crossing longer required must removed land footpath kerb channel replaced satisfaction responsible authority 11 building work shall commenced landscape plan prepared suitably qualified experienced person firm submitted approved responsible authority landscaping accordance approved plan schedule shall completed building occupied 12 building work shall commenced tree vegetation shall removed landscape plan prepared suitably qualified experienced person firm submitted endorsed responsible authority plan endorsed shall form part permit plan shall show survey existing vegetation abutting street tree natural feature vegetation building outbuilding tree neighbouring allotment would affect landscape design planting within around perimeter site comprising tree shrub capable oproviding complete garden schemeosoftening building bulkoproviding upper canopy landscape perspectiveominimising potential overlooking habitable room adjacent dwelling proposed design feature path paving lawn mulch planting schedule proposed vegetation tree shrub ground cover includes botanical name common name pot size mature size total quantity plant landscaping accordance approved plan schedule shall completed building occupied approved plan become part endorsed plan permit 13 prior occupation development hereby permitted landscaping including tree shrub lawn shall planted satisfaction responsible authority 14 wall boundary finished satisfaction responsible authority 15 permit expire development start within two 2 year date permit development completed within four 4 year date permit permit expires within three 3 month afterwards owner occupier land may writing request responsible authority extend expiry date j quirkmemberappearances applicantmr peter english planning consultantfor respondent responsible authoritymr matthew cohen town plannerforobjectorsmr joe mirigliano mr john rogowski personreasons1 application review failure city moonee valley grant permit within prescribed time development 20 newsom st ascot vale purpose 4 double storey dwelling preliminary matter2 mr english submitted amended plan circulated accordance tribunal rule requested substituted plan accompanying application objection consequently plan substituted required vcat act schedule 1 clause 64 site surrounds3 site frontage 16m depth 67m area approximately 1103m2is north western side newsom st edge residential area ascot vale 10m slope rear front 3 side surrounded residential development contemporary nature opposite side newsom st orica australia laboratory situated industrial zone site well located relation physical social infrastructure including school shopping centre sporting recreation reserve bus tram service maribyrnong river proposal4 existing dwelling site demolished 4 double storey brick timber dwelling constructed along site single drive rear 3 existing drive used front unit full description proposal also site surround contained submission mr cohen mr english application5 lodged 23 august 2001 information requested 10 september 2001 information received 7 october 2002 advertised later 16 objection received 3 march 2003 meeting held party deemed objector opposed principle number unit site application referred internally council drainage engineer objection landscape architect also objection traffic engineer made number recommendation relation access geometric design driveway within development 6 principle ground relied objector relation character overshadowing devaluation overdevelopment amenity inadequate infrastructure excessive vegetation removal7 council notified 22 july application review failure made later council adopted recommendation officer could would refused permit number ground follows 1 proposal consistent existing preferred neighbourhood character area fails satisfy residential design provision clause 22 06 9 55 02 moonee valley planning scheme 2 proposal represents unacceptable level bulk scale land surrounding area particularly term impact proposal adjoining backyard area failing satisfy objective clause 55 02 55 03 moonee valley planning scheme 3 proposal meet objective design development overlay schedule 1 development keeping character appearance area 4 front setback proposal contrary clause 55 03 1 moonee valley planning scheme 5 proposal fails satisfy relevant provision state planning policy framework strategic vision residential development contained clause 21 03 22 06 9 22 06 17 objective clause 55 relevant decision guideline contained clause 32 01 4 65 01 moonee valley planning scheme 6 proposal overdevelopment land provides inadequate design response 7 proposed driveway accessway gradient insufficient comply australian standard 2890 1 1993 planning provisions8 land zoned residential 1 zone permit required 2 dwelling lot also design development overlay relating view maribyrnong river consequent height building permit also required construct building construct carry work 9 proposal subject relevant part state local planning policy framework including ms local policy also subject requirement clause 55 65 planning scheme 10 critical policy council perspective clause 22 06 residential design policy land located ascot vale residential precinct policy relating indicates limited moderate level infill potential suburb policy also includes enhancement residential streetscape quality complimenting existing streetscape character residential development residential design policy residential design principle clause 22 06 17 11 clause 22 11 maribyrnong river corridor policy covered ddo proposal order 700m north river cannot seen bank river responsible authority considered aim objective ddo achieved exception bulk appearance basis decision12 apart brief oral submission mr rogowski party tabled written submission spoke plan photograph information also tabled document retained tribunal file hearing mr cohen advised responsible authority received application 3 unit development subject site put advertising process process developing report recommending approval subject condition tabled plan draft report stating responsible authority believed 3 unit development would resolve concern proposal mr english asked comment said received instruction relation assessment 48 5m2of difference floor area 4 unit 3 unit said site coverage 4 unit coverage small comparison rescode standard open space well excess minimum provision area permeability almost double standard 13 one major issue matter amount excavation original plan required close boundary fence rear property one mr rogowski chief concern however analysis amended design show proposed retaining wall actually shifted 5m edge property integral part rear wall dwelling 4 effectively allows rear private open space dwelling 4 3 5m 1 1 5m existing boundary much satisfactory result mr rogowski said bought area single dwelling opposed development believed 2 unit development site sufficient 14 mr mirigliano written submission stressed main concern 7 neighbour abutting site objection 3 unit felt 4 overdevelopment site also submitted large block subject site left area ascot vale 15 common ground mr english mr cohen proposal meet majority objective standard rescode exception greatest concern responsible authority relation form bulk scale development minor issue access disabled storage satisfied 4 dwelling 2 provide access people limited mobility event steep country must limitation application principle surely marketplace provides opportunity people limited mobility reside area obtain good mobility relation storage 6m3can provided extending garage slightly within basement area unit 4 covered condition 16 relation form responsible authority concerned good transition proposed development single storey dwelling west proposal generally recognised storey acceptable transition event design building provides single storey element unit 1 adjacent driveway land step believe satisfies even council transitional element 17 relation bulk scale firstly ascertained dwelling 1 could reduced height 300mm reducing height ground floor ceiling examination plan indicates second unit could also dropped 300mm lowering floor level 2 measure would assist reducing visual bulk front eastern side proposal 18 steeply sloping site partly surrounded number dwelling two storey nature design provided significant excavation site reduce impact two storey element unit 4 appear almost single storey dwelling lower floor designed part basement amended plan separated upper floor dwelling 2 3 thereby providing good gap consequently reducing visual bulk definite change area occupied single dwelling 19 must kept mind neighbourhood character amalgam many thing mr mirigliano dwelling modern architectural design roof form pitch dwelling either side however judicious landscaping also eventually blend character area streetscape diverse one opposite large industrial site may one day industrial site developed residential purpose probably much higher density 20 proposal provides one rare opportunity described clause 22 06 12 ascot vale residential precinct infill additional residential development 21 given consideration submission planning scheme provision provision planning environment act coming decision development granted permit j quirkmember

Newett & Newett (No 3) [2022] FedCFamC1F 599 (17 August 2022).txt

newett newett 3 2022 fedcfamc1f 599 17 august 2022 last updated 27 september 2022federal circuit family court australia division 1 newett newett 3 2022 fedcfamc1f 599file number brc 2179 2018judgment baumann jdate judgment 17 august 2022catchwords family law practice procedure stay condition imposed pending determination mother appeallegislation family law act 1975 cth case cited aldridge keaton 2009 famcafc 106division division 1 first instancenumber paragraph 12date hearing 17 august 2022place brisbanesolicitor applicant damien greer lawyersthe first respondent litigant personthe second respondent litigant personindependent child lawyer mr kingston norman kingstonordersbrc 2179 2018federal circuit family court australia division 1 mr newettapplicantand m newettfirst respondentms adlamsecond respondentindependent child lawyerorder made baumann jdate order 17 august 2022the court order order pending determination mother appeal final parenting order made 8 july 2022 child x born 2011 born 2013 z born 2014 child shall communicate mother telephone facetime following basis shall one 1 call per week agreed failing agreement 6 00pm sunday ii call shall longer thirty 30 minute duration iii father shall entitled call speakerphone shall interrupt record telephone conversation b order 13 order dated 8 july 2022 stayed c father restrained removing child commonwealth australia 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 pseudonymnewett newetthas approved pursuant tos 121 9 g thefamily law act 1975 cth ex tempore reason judgment settled oral reason delivered baumann j application today found amended application proceeding filed mother m newett 18 july 2022 application arises result final order made court published reason 8 july 2022 subsequent appeal mother full court informed today appeal listed full court hearing 29 september 2022 admirably six seven week away hopefully proceed day court made final order authority law make clear person obtained judgment entitled benefit judgment person obtained judgment entitled presume judgment correct mere filing appeal insufficient grant stay however principle overarching principle best interest child subject proceeding significant consideration although paramount consideration case parenting order per se seealdridge keaton 2009 famcafc 106 court consider whether term upon stay granted fair party child court required consider appeal rendered nugatory stay granted substantial factor determining whether appropriate grant stay although preliminary assessment strength proposed appeal undertaken case like history matter possible say whether mother arguable case perspective many matter raised mother appeal dealt judgment prepared sake hearing today accept mother genuine belief argument belief arguable case appeal context stay application must place prior order made finally 8 july 2022 reason published reveal sadly expressed multiple occasion reason child spending physical time mother time final order contact child mother telephone time contact grandmother m adlam party initial proceeding although filed anything respect stay listened concern taken consideration telephone time mother communicating child accordingly order made provide time child spend mother contact centre need stayed matter mother whether seek undertake order view two aspect stay application require determination follows reason order today follow firstly telephone time reason delivered 8 july 2022 make clear mother regular telephone time child sake record record x 11 year age nine year age z eight year age mother time spending physical time child supervised otherwise set reason although order make provision telephone time explained reason mother asked pending appeal effect telephone time reinstated may speak child daily maternal grandmother m adlam also wish speak child m adlam tell bar table orally morning attempt facilitate contact child particular z around birthday failed accept lack time child mother grandmother even telephone distressing mother grandmother significant change place final order made child accordingly bearing mind seen making finding mother appeal prospect success major change fact change child perspective existence time order made telephone time mother order made 8 july 2022 specify telephone time exercise discretion propose make order stay application although properly sought mother say application view think mother oral submission seeking telephone time resumed basis pending determination appeal child shall communicate mother telephone facetime following basis shall one call week agreed failing agreement 6 00pm sunday b call shall longer 30 minute c father shall entitled call speakerphone shall interrupt record telephone conversation issue propose deal mother concern notwithstanding father solicitor mr armstrong say right father relation travel overseas mr armstrong say belief may matter provoked mother concern passport child perhaps expired returned father expired application new passport would need made dealt order 13 final order provide greater certainty child shall removed country appeal dealt stay order 13 final order order make provision overseas travel although accept father final order sole parental responsibility major long term issue child father could remove child country holiday permanently without notice mother evidence ever sought however abundance caution propose order pending appeal determined father restrained removing child commonwealth australia pending determination appeal order propose make today publish reason certify preceding twelve 12 numbered paragraph true copy reason judgment honourable justice baumann associate dated 26 august 2022

Wilson v Commonwealth of Australia [1999] FCA 1754 (31 August 1999).txt

wilson v commonwealth australia 1999 fca 1754 31 august 1999 last updated 30 may 2000federal court australiawilson v commonwealth australia 1999 fca 1754ernest arthur williams patricia lorraine wislon v commonwealth australian 261 1999einfeld j31 august 1999sydneyin federal court australianew south wale district registryn 261 of1999between ernest arthur wilson patricia lorraine williamsapplicantand commonwealth australiafirst respondentofficial trustee bankruptcysecond respondentjudge hon justice marcus einfeld aodate 31 august 1999place sydneyreasons judgment1 make short observation eve appeal application made behalf appellant disqualify sitting appeal tomorrow participated member full court proceeding involving applicant factual substratum july 1994 taken opportunity since notified objection read judgment appealed tomorrow together earlier full court judgment generally become familiar submission party wish make present appeal 2 court wary accepting immediately application judge disqualify unless good ground made long established reasonable member public might apprehend particular judge could bring wholly unbiased integral mind decision court judge disqualified sitting particular case relevant matter full court 1994 authorship dating certain photograph lost circumstance lost 3 decision appealed tomorrow specifically lost photograph photograph taken around time connection purpose full court heard evidence first appellant present case 1994 appeal according judgment must say independent recollection came conclusion adverse first appellant tomorrow concerning evidence photograph particularly evidence full court 4 reason believe judgment full court joined court doubt loss photograph evidence given first appellant present proceeding time may extended beyond precise limit matter evidence went example report judgment 1994 fca 1194 122 alr 585at 598 court said sufficient degree confidence mr wilson evidence say likely would different outcome photograph question produced trial point think would reason disqualification present appeal decision full court went mr wilson evidence quite unsatisfactory consistency evidence looked whole inconsistency evidence led sweeney j inconsistency evidence taken u taken account 5 seems capable interpreted finding mr wilson credibility particular proceeding first instance appeal questionable best informed appears judgment branson j current appeal emerges mr wilson credibility raised albeit relation different photograph different matter arising set fact 6 circumstance although absolutely recollection 1994 matter seem reasonably objective bystander armed judgment appealed current appeal judgment given full court 1994 might entertain apprehension could bring wholly dispassionate unbiased mind determination current appeal reason propose accede application disqualifying appeal go tomorrow planned slightly different bench certify preceding six 6 numbered paragraph true copy reason judgment herein honourable justice marcus einfeld ao associate dated 31 august 1999counsel applicant mr r graciesolicitor applicant whitfieldscounsel respondent mr g briensolicitor respondent australian government solicitordate hearing 31 august 1999date judgment 31 august 1999

Mr Peter Ian Buzzard v Broadcast Engineering Services (Australia) Pty Ltd [2004] WAIRComm 10999 (22 March 2004).txt

mr peter ian buzzard v broadcast engineering service australia pty ltd 2004 waircomm 10999 22 march 2004 last updated 7 july 2007100421871western australian industrial relation commissionpartiespeter ian buzzardapplicant v broadcast engineering service australia pty ltdrespondentcoramcommissioner wooddate ordertuesday 30 march 2004file noapplication 833 2003citation 2004 wairc 10999_______________________________________________________________________________resultapplication discontinuedrepresentationapplicantmr en stamatiou counselrespondentmr smetana counsel_______________________________________________________________________________orderwhereas application pursuant tosection 29 1 b ii theindustrial relation act 1979 andwhereas conciliation conference convened 22 july 2003 conclusion matter adjourned unresolved andwhereas applicant advised commission 18 march 2004 wanted discontinue application andwhereas party waived right speak minute proposed order pursuant tos 35 4 theindustrial relation act 1979 therefore commission pursuant power conferred theindustrial relation act 1979 hereby order application hereby discontinued commissioner wood

Moyne SC v Ace Radio Broadcasters Pty Ltd & Anor [2013] VCAT 404 (5 April 2013).txt

moyne sc v ace radio broadcaster pty ltd anor 2013 vcat 404 5 april 2013 last updated 15 april 2013victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference p1877 2012catchwordsapplication declaration clarify requirement condition 3 planning permit issue interpretation permit condition assessing extent emi mitigation work necessary consideration whether contentious permit condition performance based applicant responsible authoritymoyne shire councilpermit holderace radio broadcaster pty ltdrespondentjohn howardsubject land134 bligh roadpurnim vic 3278where held55 king street melbournebeforephilip martin memberhearing typehearingdate hearing7 8 27 february 2013date order5 april 2013citationmoyne sc v ace radio broadcaster pty ltd anor 2013 vcat 404orderthe cost proceeding reserved pursuant tosection 149aof theplanning environment act1987

Treasury Chateau & Estates v Australian Wine Exporters Pty Ltd [2019] ATMO 55 (9 April 2019).txt

treasury chateau estate v australian wine exporter pty ltd 2019 atmo 55 9 april 2019 last updated 3 june 2019trade mark act 1995decision delegate registrar trade mark reasonsre opposition 50 50 foundation pty ltd registration trade mark application 1787249 41 win50 50 fancy name win 50 50 pty ltd delegate iain campbell thompsonrepresentation opponent self representedapplicant w legal pty ltddecision 2019 atmo 56trade mark act 1995section 52opposition registration ground undersections 42 58 60 and62aof act ground undersection 62aestablished registration refused backgroundin proceeding undersection 52of thetrade mark act 1995 act win 50 50 pty ltd applicant applied register trade mark appears application 1787249priority date 5 august 2016services class 41 lottery servicestrade mark trade mark trade mark examined compliance withsection 31of act advertised accepted possible registration 5 january 2017 theaustralian official journal trade mark 3 march 2017 50 50 foundation limited opponent filed notice intention oppose registration trade mark followed 29 march 2017 statement ground particular detail ground opposition undersections 42 58 60 and62aof act 2 august 2017 opponent filed evidence support declaration john cameron corry director opponent made 3 august 2017 annexures jc 1 jc 15 accompanied confidential declaration corry 2 made mr corry day 30 october 2017 applicant filed evidence answer declaration olaf jan borutz legal representative applicant made 30 october 2017 annexure 4 january 2018 opponent filed evidence reply declaration corry 3 made mr corry 29 december 2017 annexure jc 16 subsequently party advised right request hearing make written submission opponent filed written submission mr corry applicant filed written submission w legal advisory order registrar may discharge duty imposed bysection 55of act decide matter passed one registrar delegate decision written record comprised material mentioned foregoing paragraph onus relevant datethe opponent bear onus establishing ground opposition detailed statement ground particular balance probability 1 relevant date relevant date ground must considered filing date 2 opposed application evidencethe opponentmr corry explains opponent non profit company established 2012 opponent trustee 50 50 foundation registered charity australian charity profit commission 2012 opponent engaged hoopla creative agency research design trade mark opponent service mr corry state since 2013 opponent using trade mark appear 50 50 collectively opponent trade mark mr corry also state opponent headquarters queensland australia provides service queensland new south wale south australia opponent organises operates charity raffle competition game lottery fundraising event sporting organisation charity partner opponent trade mark opponent acquired reputation opponent trade mark relation variety good service including charity raffle competition game lottery fund raising event activity andevent management service relation fund raising event understanding service opponent opponent service main offered opponent sporting event concerning mr corry state opponent first used opponent trade mark bronco v cowboy nrl game 12 april 2013 attendance 42 556 people game televised live channel nine queensland new south wale australia wide fox sport annexed markedjc 3is article published newscorp australia 20 april 2012 referring launch 50 50 charity raffle game since opponent trade mark used relation opponent service nrl super rugby afl game well v8supercars brisbane global rugby 10 royal national agricultural show opponent website www 5050draw com au mr corry state 1 july 2014 5 august 2016 45 000 page view website applicantmr borutz asserts applicant run lottery south australia like opponent service mr borutz asserts lottery run sporting event mr borutz state concept underpinning lottery common united state america canada lottery concept numerous successful sporting organisation operate similar popular lottery including vancouver canuck compete national hockey league philadelphia eagle indianapolis colt pittsburgh steelers compete national football league cleveland cavalier compete national basketball association los angeles dodger compete major league baseball rodney phillip jameson jameson sole director secretary shareholder applicant first became aware experienced lottery concept canada 2005 since 2010 jameson spent numerous year developing brand concept lottery evidenced discussion concept email dated 29th june 2010 jameson tinley lewis adelaide football club jameson discussed lottery concept note none assertion corroborated supporting material weigh accordingly dealing partiesmr corry state light close similarity opposed mark opponent trade mark believe applicant honestly adopted opposed mark made trade mark application good faith believe applicant knew opponent trade mark intended take advantage reputation opponent established opponent trade mark applicant copied part opponent website annexed marked jc 13 screen shot opponent website copied part opponent website appear applicant website mr corry state portion layout explanation applicant website similar text copied almost word word example opponent website odds winning prize money directly related number chance sold draw 45 000 ticket sold spent 6 received 3 chance odds winning 1 15 000 draw increase value throughout event chance winning decrease although prize value increase applicant websiteyour odds winning 50 jackpot directly related number ticket sold lottery 5 000 ticket sold spent 10 received 3 ticket odds winning 1 1 600 jackpot increase value throughout event chance winning decrease although prize value increase opponent website50 50 guarantee greater minimum prize fixed amount cash game 50 gross ticket sale winner receive prize cash maximum value 100 000 trustee 50 50 determine minimum fixed prize prior event 50 50 system used applicant websitewin 50 50 guarantee greater minimum prize fixed amount cash game 50 gross ticket sale jackpot win 50 50 determine minimum fixed prize prior event win 50 50 system used mr corry state opponent sent letter demand dated 7 march 2017 applicant regarding copyright infringement annexed markedjc 14is copy correspondence opponent applicant relation matter applicant responded opponent 23 march 2017 agreeing change copied material website however date declaration applicant removed copied part website annexed marked jc 15 copy letter opponent applicant dated 23 march 2017 section 62astatement ground particularsin statement ground particular opponent asserts opponent used opponent trade mark australia since least 2013 opponent acquired reputation opponent trade mark opponent service similar applicant service applicant aware opponent trade mark chose similar applicant mark leverage springboard opponent reputation goodwill applicant knowledge opponent trade mark reputation seen comparison opponent website www 5050draw com au applicant website www win50 50 com au applicant copied opponent website content manner amounting copyright infringement applicant knew conduct relation adopting applying trade mark using associated advertising website www win50 50 com au would increase likely confusion applicant mark opponent trade mark would also falsely represent applicant mark sponsored approved affiliation opponent opponent trade mark opponent service making application registration applicant mark applicant demonstrated conduct unscrupulous underhanded unconscientious character circumstance person adopting proper standard would regard applicant decision file application registration applicant mark bad faith reasonable experienced person field would view conduct falling short acceptable commercial behaviour section 62a frameworksection 62aof act provides 62aapplication made bad faiththe registration trade mark may opposed ground application made bad faith indc comic v cheqout pty ltd 3 chequout bennett j referred judgment kenny j infry consulting v sport warehouse inc 2 4 said honour considered 144 explanatory memorandum relating tos 62a stated act allows removal trade mark basis intention good faith use authorise use assign trade mark however current opposition ground cover instance person deliberately set gain registration trade mark adopted trade mark bad faith several instance trade mark applicant deliberately set gain registration trade mark adopted trade mark bad faith example include person monitor new property development register name new property development trade mark number service threatens property developer trade mark infringement unless licence buy trade mark pattern registering trade mark deliberate misspelling registered trade mark andbusiness people identify trade mark overseas market penetration australia register trade mark intention use australian market express purpose selling mark overseas owner situation occur little third party prevent registration type trade mark existing ground rejection opposition allow registrar take fact account justice dodds streeton observed 163 example bad faith given explanatory memorandum predominantly exclusively manifestation blocking holding ransom party least conscience entitled mark however honour noted illustration merely inclusive limit breadth concept bad faith honour observed 145 bad faith must time application onus opponent seeking establish bad faith standard proof balance probability given limited australian authority honour 145 166 also considered relevant authority united kingdom case stated relevantly bad faith serious allegation serious allegation cogent evidence required support bad faith require dishonesty bad faith combined test involves subjective objective element subjective element refers knowledge relevant person time making application objective element requires decision maker decide whether light knowledge relevant person behaviour fell short acceptable commercial standard question whether conduct fall short standard acceptable commercial behaviour observed reasonable experienced person particular area whether knowledge applicant decision apply registration would regarded bad faith person adopting proper standard difficult see person applies register name mark previously recognised property potential overseas principal said acting accordance acceptable standard commercial behaviour combining mark applicant name answer criticism registration trade mark designed enable bona fide proprietor protect proprietary right without prove unfair trading circumstance surrounding application register mark relevant act bad faith cannot cured action date application justice dodds streeton concluded 164 bad faith context 62a require although includes dishonesty fraud wider notion potentially applicable diverse specie conduct honour rejected proposition mere awareness overseas company owning mark operated intended operate australia would amount bad faith concluding would unduly absolute justice dodds streeton instead adopted touchstone united kingdom formulation conduct falling short standard acceptable commercial behaviour observed reasonable experienced person 165 honour observed applicant mental state also relevant stated 166 mere negligence incompetence lack prudence reasonable experienced standard would suffice concept bad faith import conduct irrespective form take unscrupulous underhand unconscientious character submissionsrelevant consideration ground opponent submits readily inferred applicant sole director mr rodney jameson knowledge opponent trade mark opponent service filing date intended take advantage opponent reputation opponent trade mark mislead consumer given applicant copied part opponent website despite opponent demand removed copied part website 29 december 2017 opponent aware use mark 50 50 either word stylised logo substantially identical mark relation opponent service similar service including applicant service australia third party including applicant prior opponent first use opponent mark 2013 applicant provided evidence use mark 50 50 either word stylised logo substantially identical mark relation applicant service similar service australia overseas prior opponent first use april 2013 paragraph 10 32 eia declaration applicant refers discussion someone applicant alleged development lottery concept defined paragraph 9 eia declaration since 2010 however evidence provided applicant trade mark used relation alleged lottery concept similarly applicant refers paragraph 9 10 32 eia declaration lottery concept operated sporting organisation united state canada however applicant provide evidence trade mark used relation lottery concept united state canada evidence mark use australia april 2013 applicant submits applicant simply sought protect brand lottery market started build strong identity seeking register opposed mark ii applicant lodged opposed mark nine 9 month prior opponent priority date andiii set paragraph 6 4 opposed mark clearly distinguishable significantly different form substance opponent mark proposition assertion set paragraph evidence applicant lodge opposed mark using special knowledge interest gaining advantage mark breach duty agreement respect mark ii person adopting proper standard would consider registration opposed mark previously sought applicant action made bad faith andiii applicant exhibited behaviour may give rise wrongdoing purpose section 62a act considerationthe following factor go reasoning concerning assertion bad faith whilst applicant asserts concept underpinning lottery service party common usa canada corroborating evidence registrar similarly suggestion applicant evidence term 50 50 commonly descriptively used third party relation service whether australia overseas way generic relation service applicant rehearsal website material opponent website indicates conscious decision iterate material inference applicant also emulated one opponent trade mark pitched identical service market reaching conclusion consider necessary consider whether applicant breached copyright opponent material website sufficient observe obviously marked degree conscious copying factor indicate applicant copied concept material branding 50 50 lottery opponent including distinctive 50 50 element person acting accordance acceptable standard commercial behaviour would engage action andthe applicant addressed issue evidence submission finding note word bennett j inchequoutat 73 view inference clear immediate use trade mark together bg shield device making application register trade mark mr gabrielle therefore cheqout intended use combination bg shield device order strengthen allusion superman inference also drawn use designed gain benefit appropriating superman indicia reputation dc comic superhero viewer association trade mark superman word mark relevant circumstance consideration bad faith purpose 62a fry 167 76 ofcheqouther honour stated section 62a require opponent establish trade mark use would result deception confusion aspect subject ground opposition s 43 60 requirement would view contradict legislative intent introducing new ground opposition limiting application circumstance provided existing ground similarly applicant rehearsal text opponent website website viewed combination similarity trade mark opponent trade mark may reasonably inferred done perception association trade mark opponent trade mark opponent service opponent established ground section 62a act decisionsection 55 act relevantly provides 55decision 1 unless subsection 3 applies proceeding registrar must end decide refuse register trade mark b register trade mark without condition limitation respect good service specified application regard extent ground application opposed established note forlimitationssee section 6 refuse register application 1787249 costsboth party proceeding requested cost whilst opponent represented evidence submission appear professionally prepared term section 221 act therefore award cost applicant official scale schedule 8 thetrade mark regulation 1995 iain campbell thompsonhearing officertrade mark hearings9 april 2019 1 pfizer product inc v karam 2006 fca 1663 237 alr 787 2006 70 ipr 599 2006 aipc 92 146per gyles j 6 26 telstra corporation ltd v phone directory co pty ltd 2015 fcafc 156at 132 133 2 southern cross refrigerating co v toowoomba foundry pty ltd 1953 hca 73 1954 91 clr 592 3 2013 fca 478 2013 212 fcr 194 2013 299 alr 110 2013 101 ipr 334at 60 4 2012 fca 81 2012 201 fcr 565

Lester and Department of Justice and Attorney-General [2018] QICmr 6 (7 February 2018).txt

lester department justice attorney general 2018 qicmr 6 7 february 2018 last updated 16 february 2018decision reason decisioncitation lester department justice attorney general 2018 qicmr 6 7 february 2018 application number 313278applicant lester respondent department justice attorney generaldecision date 7 february 2018catchwords administrative law right information refusal access contrary public interest information crime scene photograph deceased person personal information privacy whether disclosure would balance contrary public interest section 47 3 b and49of theright information act 2009 qld reason decisionsummarythe applicant applied department justice attorney general department access theright information act 2009 qld rti act crime scene photograph photograph deceased wife admitted evidence applicant trial 1 applicant currently serving term imprisonment subsequently convicted wife murder department located 508 photograph 1016 page back front obtained department office director public prosecution department refused access photograph basis disclosure would balance contrary public interest 2 applicant applied office oic seeking external review decision 3 reason set affirm department decision refuse access photograph disclosure would balance contrary public interest 4 backgroundthe applicant serving sentence imprisonment convicted separate trial two serious charge series photograph taken police investigator tendered evidence applicant trial serious charge applicant appeal overturn conviction murder wife heard queensland court appeal appeal unsuccessful applicant sought leave appeal high court australia application dismissed applicant submits photograph evidence support alternative case theory wife killed another person reason nothing applicant 5 accordingly applicant contends access photograph required assist applicant applying governor queensland pardon conviction 6 significant procedural stepssignificant procedural step relating application external review set appendix reviewable decisionthe decision review department decision dated 14 march 2017 refusing access photograph ground disclosure would balance contrary public interest evidence consideredevidence submission legislation material considered reaching decision disclosed reason including footnote appendix applicant urged oic view information issue reaching decision 7 nature document evident term access application oic may require agency provide oic relevant document 8 aware nature information issue satisfied comprises image applicant deceased wife context crime scene 9 basis necessary view image order reach determination 10 circumstance case oic ask department provide copy photograph information issuethe information issue review comprises 508 photograph 1016 page back front photograph include image applicant deceased wife scene death image another person involved death external review applicant narrowed information issue limited number photograph located 11 applicant stated seek access photograph crime scene depict deceased wife photograph issue 12 issue determinationthe issue determination review whether disclosure photograph issue would balance contrary public interest rti act relevant lawa person right given access document agency rti act 13 however right subject provision rti act including ground agency may refuse access document 14 one ground upon agency may refuse access information disclosure would balance contrary public interest 15 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 however recognised public interest consideration may apply benefit individual rti act identifies number factor may relevant deciding balance public interest 16 section 49 3 rti act explains step decision maker must take deciding balance public interest lie follows identify irrelevant factor disregard 17 identify relevant public interest factor favouring disclosure nondisclosurebalance relevant factor favouring disclosure nondisclosure anddecide whether disclosing information would balance contrary public interest rti act specifically recognises disclosure another individual personal information factor favouring nondisclosure 18 could reasonably expected lead public interest harm 19 term personal information defined section 12 ip act follows information opinion including information opinion forming part database whether true whether recorded material form individual whose identity apparent reasonably ascertained information opinion findingsi satisfied disclosing photograph issue would balance contrary public interest reason follow factor favouring disclosurepersonal information applicant deceased personsthere public interest individual able obtain access personal information 20 photograph issue depict applicant anything identifies satisfied information issue contain personal information applicant factor apply factor favouring disclosure arises information personal information individual deceased applicant eligible family member 21 spouse deceased applicant eligible family member therefore giving rise public interest factor favouring disclosure 22 photograph issue consist image deceased person context crime scene comprising personal information 23 however given circumstance case particularly applicant estranged wife time death subsequently convicted murder afford little weight factor favouring disclosure possible deficiency misconduct negligent improper unlawful conductthe applicant submitted reason could think denied access photograph court proceeding photograph could expose detective mishandling murder investigation 24 rti act give rise factor favouring disclosure disclosing information could reasonably expected allow assist inquiry possible deficiency conduct administration agency official 25 orreveal substantiate agency official engaged misconduct negligent improper unlawful conduct 26 evidence information support applicant contention qps mishandled murder investigation applicant failed identify disclosure photograph issue would assist support claim conduct queensland police service qps also note photograph issue tendered evidence applicant criminal trial veracity murder investigation conducted qps tested supreme court queensland subsequently queensland court appeal therefore consider factor apply contribute administration justicethe rti act recognises public interest favour disclosure information disclosure could reasonably expected contribute administration justice person 27 inwilsford brisbane city council 28 information commissioner found factor arises applicant demonstrates suffered loss damage kind wrong respect remedy may available lawthere reasonable basis seeking pursue remedy anddisclosing information would assist applicant pursue remedy evaluate whether remedy available worth pursuing applicant submission essence photograph issue evidence support could termed alternative case theory relation murder wife applicant belief access photograph issue would allow demonstrate another person particular motive killing wife motive would show applicant involvement murder 29 carefully considered applicant submission regarding belief disclosure photograph issue necessary legal reason overturn judgement conviction 15 year sentence prove innocence 30 consider first two three cumulative element inwilsford outlined paragraph27 may satisfied find third element intent element established inwilsfordwas give access information without applicant able proceed seeking remedy case information applicant appeal overturn conviction heard queensland court appeal appeal un 31 cessful 31the applicant sought leave appeal high court australia application 32 smissed 32therefore legal remedy sought applicant pursued past nondisclosure information issue prevent applicant seeking remedy occasion applicant submission indicate evaluated legal remedy wish pursue lodging petition governor queensland pardon conviction whether applicant reasonable basis seeking pursue remedy note photograph issue admitted evidence applicant trail alternative case theory set applicant submission considered detail dismissed queensland court appeal 33 view photograph issue required applicant petition governor queensland pardon evaluate whether remedy available 34 applicant submission identify access photograph issue would assist applicant applying pardon noting photograph already tendered evidence applicant trial appeal applicant demonstrated necessity obtaining copy photograph issue purpose petitioning governor queensland pardon occurs exceptional circumstance therefore unable conclude applicant demonstrated disclosing would assist pursuing pardon evaluating prospect success seeking pardon satisfied circumstance case meet requirement set inwilsford consider access photograph issue essential applicant pursue petition governor queensland pardon therefore satisfied factor favouring disclosure apply factor favouring nondisclosurepersonal information othersthe rti act provides disclosing personal information person whether living dead could reasonably expected cause public interest harm 35 photograph issue show highly sensitive image applicant deceased wife given sensitivity private nature personal information contained crime scene photograph depicting deceased consider public interest harm resulting disclosure sensitive personal information would significant afford significant weight factor favouring nondisclosure protection individual right privacya public interest factor favouring nondisclosure arises personal information deceased individual applicant eligible family member deceased person disclosure information could reasonably expected impact deceased person privacy deceased person alive 36 photograph issue contain highly sensitive personal information applicant deceased wife form image taken deceased crime scene accordingly consider privacy interest deceased remain high disclosure photograph issue could reasonably expected substantial impact privacy deceased person alive certain occasion information commissioner found substantial weight factor favouring nondisclosure deceased person information may reduced based upon applicant knowledge relationship deceased 37 however unique situation particular case cannot equated present case despite applicant eligible family member deceased also estranged wife subsequently convicted murder consider weight factor favouring nondisclosure reduced spousal relationship applicant deceased circumstance case photograph issue exhibit applicant trial applicant present along member public observing trial applicant submits awareness nature substance photograph issue possibility observed member public reduces privacy may attach image 38 accept submission information applicant wife entered public domain court proceeding medium report however evidence suggest photograph issue made publicly available beyond court process considerable passage time since applicant trial consider sensitivity personal nature image deceased reduced disclosure trial possible viewing member public reason afford factor favouring nondisclosure significant weight balancing public interestin summary reason set find factor favouring disclosure relating administration justice applicantdisclosure personal information andpossible deficiency misconduct negligent improper unlawful conductdo apply circumstance review applicant convicted wife murder afforded little weight public interest factor favouring disclosure personal information deceased person applicant eligible family member balanced significant weight afforded nondisclosure factor seek protect privacy personal information deceased person therefore balance find factor favouring nondisclosure outweigh factor favouring disclosure information issue accordingly find disclosure information issue would balance contrary public interest decisionfor reason set affirm department decision access information issue may refused disclosure would balance contrary public interest section 47 3 b 49 rti act made decision delegate information commissioner section 145 rti act shanleyacting assistant information commissionerdate 7 february 2018appendixsignificant procedural stepsdateevent5 april 2017oic received external review application 5 april 2017oic notified applicant department external review application received oic notified requested relevant procedural document department 11 april 2017oic received relevant procedural document department 4 may 2017oic notified applicant department accepted external review application oic conveyed preliminary view applicant requested submission response 31 may 2017oic received submission 39 applicant 7 july 2017oic conveyed additional preliminary view applicant advised next step requested submission response 31 july 2017oic received additional submission 40 applicant 8 september 2017oic received final submission 41 applicant 11 september 2017oic provided applicant update status review 15 november 2017oic spoke department provided update status review 15 december 2017oic provided applicant update status review 1 access application dated 15 february 2017 received department 21 february 2017 2 section 47 3 b 49 rti act 3 external review application dated 23 march 2017 4 section 47 3 b 49 rti act 5 applicant submission dated 16 may 2017 6 external review application dated 29 march 2017 applicant submission dated 16 may 2017 18 july 2017 7 applicant submission dated 16 may 2017 18 july 2017 8 section 95 1 rti act procedure followed external review subject rti act within discretion information commissioner 9 accordance reduced scope information issue described applicant submission dated 16 may 2017 10 section 95 1 c rti act external review information commissioner bound rule evidence may inform way information commissioner considers appropriate 11 applicant submission dated 16 may 2017 12 applicant submission dated 16 may 2017 13 section 23 rti act 14 section 47 rti act 15 section 47 3 b 49 rti act 16 schedule 4 rti act set factor deciding whether disclosing information would balance contrary public interest however list factor exhaustive word factor listed may also relevant 17 irrelevant factor arise circumstance taken account 18 schedule 4 part 3 item 3 rti act 19 schedule 4 part 4 section 6 rti act 20 schedule 4 part 2 item 7 rti act 21 schedule 4 part 2 item 9 rti act 22 schedule 4 part 2 item 9 rti act fact applicant spouse deceased time death relevant consideration determining eligible family member purpose disclosure factor 23 section 12of theinformation privacy act2009

Gene Technology Amendment Act 2007 (No. 43 of 2007).txt

gene technology amendment act 2007 43 2007 table provisionspart 1 preliminary1purpose2commencement3principal act4notespart 2 emergency dealing determinations5definitions6simplified outline part 4 7person deal gmo without licence8person deal gmo without licence strict liability offence9person must breach condition gmo licence10new section 35a 35b inserted11protection person give information12renumbering section 72a13new part 5a inserted14simplified outline part 7 15application certification16application accreditation17quarterly reports18record gmo gm product dealings19simplified outline part 10 20regulator may give directions21simplified outline part 11 22powers available inspector monitoring compliance23part limit power impose conditions24interference dealing gmospart 3 gene technology ethic community consultative committee25definitions26heading part 827simplified outline part 8 28the gene technology ethic community consultative committee29new section 107 substituted30new section 111 112 insertedpart 4 assessment application limited controlled release consultation significant risk31repeal ofsection 4932regulator must prepare risk assessment risk management plan33new section 50a inserted34matters regulator must take account preparing risk assessment risk management plan35public notification risk assessment risk management planpart 5 provision relating variation36variation licence37review decisionspart 6 regulator power direct38simplified outline part 10 39regulator may give directionspart 7 inadvertent dealings40definition41new section 40a inserted42new section 46a inserted43newsection 49inserted44regulator must issue licence unless satisfied risk management45other circumstance regulator must issue licence46period licencepart 8 technical amendments47definitions48regulator may require applicant give information49regulator must consider application except certain circumstances50regulator must issue licence unless satisfied risk management51regulator notify proposed suspension cancellation variation52regulator may include dealing gmos gmo register53regulator notify proposed suspension cancellation variation54new section 89a inserted55regulator may accredit organisations56regulator notify proposed suspension cancellation variation57review decisions58deadlines making reviewable decisions59regulator may declare information confidential commercial informationpart 9 repeal amending act60repeal amending actendnotes

Minister for Planning v 160 Leicester Pty Ltd [2017] VCAT 441 (28 March 2017).txt

minister planning v 160 leicester pty ltd 2017 vcat 441 28 march 2017 last updated 28 march 2017victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference no p2195 2016 p2271 2016applicants p2271 2016minister planningmelbourne city councilapplicants p2195 2016duncan wallace tim staindlresponsible authoritymelbourne city councilrespondent160 leicester pty ltdinterested non partynational trust australia victoria subject land154 160 leicester streetcarlton vic 3053where heldmelbournebeforemark dwyer deputy presidenthearing typepractice day hearing stay hearing date hearing17 march 2017date order28 march 2017citationminister planning v 160 leicester pty ltd 2017 vcat 441orderon basis information made available vcat practice day hearing 17 march 2017 interlocutory application respondent stay proceeding refused proceeding remain listed final hearing commencing 31 july 2017in accordance tribunal order 2 december 2016 compulsory conference scheduled 17 march 2017 vacated cost reserved mark dwyerdeputy presidentappearancesfor duncan wallace tim staindljuliet forsyth counsel instructed fitzroy legal servicefor minister planning melbourne city councilpaul holdenson qc counsel john rantino solicitor instructed maddocks lawyersfor 160 leicester pty ltdstuart morris qc andrew walker counsel instructed griffin law firmreasonsvcat strictly required give reason interlocutory order however consider appropriate instance provide short form reason decision reached practice day hearing convened morning 17 march 2017 day previously scheduled compulsory conference member cimino consider interlocutory application respondent 160 leicester pty ltd stay vcat enforcement proceeding pending determination related criminal proceeding magistrate court two enforcement proceeding vcat based primarily allegation respondent owner land 154 160 leicester street carlton 15 october 2016 building land known corkman irish pub formerly carlton inn unlawfully demolished without planning permit contravention melbourne planning scheme theplanning environment act 1987 enforcement proceeding essentially seek land restored prior condition e building reinstated land condition form reusing material demolished building practical safe enforcement proceeding listed final hearing vcat commencing 31 july 2017 respondent filed statement ground made limited admission ownership demolition absence planning permit however admit aspect planning control force relevant time opposes making enforcement order legal discretionary ground melbourne city council co applicant along minister planning one enforcement proceeding council instigated criminal prosecution respondent two director based primarily alleged contravention melbourne planning scheme theplanning environment act 1987 summons initially returnable magistrate court melbourne 13 april 2017 although absent plea guilty agreement charge dealt summarily prosecution finally determined day indeed charge opposed may well year criminal proceeding heard determined respondent seek stay vcat enforcement proceeding criminal prosecution finalised say respondent director suffer real risk prejudice defence criminal proceeding respondent forced reveal advance vcat proceeding information likely defence criminal proceeding although nature relief sought vcat proceeding quite different criminal proceeding agree respondent counsel respondent unduly delayed seeking stay enforcement proceeding criminal prosecution based alleged contravention criminal charge real rather threatened successfully prosecuted could lead significant penalty imposed also agree respondent counsel principle relevant granting stay progressed since guideline set inmcmahon v gould 1982 7 aclr 202per wooten j applied vcat decision stay decision inlegal service commissioner v brereton 2008 vcat 1341 leading case include high court decision incommissioner australian federal police v zhao 2015 hca 5 upholding decision court appeal inzhao vcommissioner australian federal police 2014 vsca 137 court appeal inzhaohad noted mcmahon v gould guideline failed afford sufficient primacy criminal proceeding prosecution must prove guilt accused criminal proceeding cannot compel person charged assist discharge onus proof however lead necessarily view civil proceeding stayed pending outcome related criminal proceeding indeed high court inzhao 35 reiterated court grant stay civil proceeding merely related charge brought person criminal proceeding pending required zhaoconcerned civil forfeiture proceeding court appeal noted overlap criminal charge accused would need wish depose order defend forfeiture proceeding consequence court found accused could defend forfeiture proceeding without telegraphing evidence likely defence criminal proceeding court considered bound protect accused right crown prove case without accused assistance counsel minister council contended inzhao number case principle inzhaohad applied differentiating factor established real risk prejudice accused would required depose information give evidence mouth order properly defend civil proceeding e g material fact might lead self incrimination prosecution could use assist proving criminal charge accused would forced situation effectively give right silence referred counsel minister council particular tocmfeu v australian competition consumer commission 2016 fcafc 97 decision full federal court court considered principle inzhaobut determined grant stay considering decision inzhao court reiterated must apparent accused risk prejudice conduct defence criminal trial risk prejudice must real risk must weighed prejudice may occasioned stay civil proceeding incmfeu found basis assume two accused would likely give evidence civil proceedingat evidence could compelled thus invidious choice inzhao faced accused whether might give evidence civil proceeding approach inzhaowas therefore distinguished situation different tozhao perhaps analogous tocmfeu agree counsel minister council enforcement proceeding require respondent director depose anything give evidence extent relevant statement ground already filed respondent ownership land fact demolition former hotel building absence planning permit already admitted proof contravention melbourne planning scheme enforcement proceeding turn primarily legal submission validity interpretation application relevant planning control rather matter potential prejudice respondent director criminal proceeding criminal prosecution council bear onus proving relevant planning control existence control requirement planning permit demolition respondent seek legally challenge validity interpretation application control part response enforcement proceeding agree may flag council similar approach respondent may also take criminal prosecution however lead view respondent thereby forced assist prosecutor prove case criminal proceeding prejudice result prosecutor still bear onus unassisted legal argument validity interpretation application relevant planning control opinion amount information disclosed enforcement proceeding might said create real risk prejudice accused later criminal prosecution potential self incrimination giving accused right silence assisting prosecutor prove case comprises legal submission counsel governing regulatory framework underscore proceeding rather information mouth accused comprises evidence support likely defence mere reference legal submission might made governing regulatory framework criminal proceeding could said create real risk prejudice warranting stay related enforcement proceeding interpretation application regulatory framework subject legal submission proceeding also hard conceive situation stay could ever refused however indicated zhaostill stand initial proposition court grant stay civil proceeding merely related charge brought person criminal charge pending required establish real risk prejudice satisfied respondent shown required obtain stay seek indeed material provided respondent behalf regard saying accept hearing stay application respondent required state fall detail specific matter prejudice would suffer stay granted would make prejudice reality requiring reveal detailed information defence however really situation example respondent counsel gave likely defence respondent might conceivably adopt hearing criminal proceeding based legal submission validity interpretation application relevant planning control suggestion respondent director might need give evidence enforcement proceeding issue mentioned incmfeu court indicated risk prejudice accused must weighed prejudice may occasioned stay civil proceeding found real risk prejudice accused established material equally however might said high risk prejudice applicant enforcement proceeding short delay final hearing enforcement proceeding conceded counsel minister council hotel already demolished vacant site secured matter public safety sits undeveloped extra week prejudice applicant minimal however currently certainty criminal prosecution finalised told could easily take year longer although may entertained application adjournment week good reason convinced enforcement proceeding stayedindefinitely counsel two co applicant wallace staindl supported submission made behalf minister council reiterated criminal proceeding initially returnable magistrate court 13 april 2017 short time away applicant opinion still conceivable may guilty plea took application indefinite stay enforcement proceeding may premature immediate future course prosecution known also emphasised enforcement planning control theplanning environment act 1987 whether minister council individual nature public interest proceeding rather ordinary civil proceeding public benefit matter determined reasonable expedition protect integrity planning system agree also weighs grant stay albeit necessarily determinative based opinion application indefinite stay proceeding refused least basis prevailing circumstance information presently submission made practice day hearing satisfied respondent substantiated claim real risk prejudice final hearing therefore commence scheduled 31 july 2017 open respondent make application stay circumstance change initial return summons criminal proceeding 13 april 2017 indicated compulsory conference listed 17 march 2017 party agreed proceed day counsel respondent conceded respondent attendance compulsory conference would prejudicial position criminal proceeding particularly conference directed mediated discussion future restoration development land rather alleged contravention however respondent ultimately clarified longer sought participate compulsory conference accordingly compulsory conference scheduled matter proceed directly final hearing appears provision yet made witness evidence proceeding party seek vary default practice note provision otherwise apply done consent order paper practice day hearing mark dwyerdeputy president

R v Pitt [2005] NSWCCA 304 (6 September 2005).txt

r v pitt 2005 nswcca 304 6 september 2005 citation regina v pitt 2005 nswcca 304file number 2005 483hearing date tuesday 28 june 2005judgment date 06 09 2005parties regina v pitt lorrainejudgment grove j hoeben j hall jlower court jurisdiction district courtlower court file number 04 11 0202lower court judicial officer latham dcj counsel crown g rowlingapp francissolicitors crown kavanaghapp connorcatchwords criminal law sentence mental disorder knowledge gravity action insufficient regard applicant history mental illness le weight given general deterrence altered mental state impairment judgment volitional control drug abuse mental disorder causally related commission offence diminution sentence regard applicant mental condition mental condition may increase importance deterrence offender alcohol valium medication consumed prior offence applicant posse full understanding authority requirement lawlegislation cited crime act 1900crimes sentencing procedure act 1999criminal appeal act 1912decision leave appeal granted b appeal allowed sentence imposed district court quashed c lieu thereof sentence applicant term imprisonment follows count 1 offence malicious wounding applicant sentenced fixed term imprisonment two year date 17 july 2003 expire 16 july 2005 respect sentence non parole period appropriate regard structure sentence involved respect armed robbery offence count 2 respect first count armed robbery dangerous weapon sentence three year six month date 17 january 2004 expire 16 july 2007 respect sentence non parole period two year date 17 january 2004 expire 16 january 2006 count 3 respect second count armed robbery dangerous weapon sentence imposed five year commence 17 july 2004 expire 16 july 2009 respect sentence non parole period two year date 17 july 2004 expire 16 july 2006 count 4 posse unauthorised firearm count 5 posse unregistered firearm sentence imprisonment fixed term one year commencing 17 july 2003 expiring 16 july 2004 accordance order proposed appellant eligible released parole upon expiry non parole period specified 16 july 2006 judgment court ofcriminal appeal2005 483grove j hoeben j hall j tuesday 6 september 2005regina v lorraine pittjudgment1grove j advantage reading judgment hall j draft form 2 honour observed key finding learned trial judge expressed remark sentence accept prisoner disorder might might actedwithout knowledgeof gravity action put another way prisoner intellectual function insufficient allow afull understandingof authority requirement law emphasis added 3 term understand reject notion appellant knowledge gravity action consider finding open honour however opinion intervention court provoked requirement consider collateral possibility whether appellant knowledge gravity action way impaired reduced mental disorder issue see whether acted withoutanyknowledge afullunderstanding whether appreciation diminished 4 case expert evidence compromise effectively unanimous particular significance frank demonstration frontal lobe atrophy ct scan upon based unchallenged opinion condition would affect judgment volitional control 5 although approach differs slightly taken hall j agree appeal allowed appellant resentenced agree order proposed 6hoeben j agree hall j 7hall j 16 march 2005 applicant sought leave appeal severity sentence imposed district court new south wale latham dcj honour 20 august 2004 following plea guilty entered local court respect one count malicious wounding contrary tos 33of thecrimes act 1900 35 1 maximum penalty seven year imprisonment two count robbery whilst armed dangerous weapon contrary tos 97 2 thecrimes act 1900 maximum penalty 25 year imprisonment 8 applicant relies upon following ground 1 sentencing judge erred insufficient regard applicant history mental illness 2 sentencing judge erred finding offence committed breach suspended sentence 9 effective overall term seven year imprisonment imposed respect offence charged non parole period four year 10 particular sentence imposed respect charge follows count 1 malicious wounding imprisonment fixed term three year commencing 17 july 2003 expiring 16 july 2006 count 2 robbery armed dangerous weapon imprisonment four year six month commencing 17 january 2004 expiring 16 july 2008 non parole period three year expiring 16 january 2007 count 3 robbery armed dangerous weapon imprisonment six year commencing 17 july 2004 expiring 16 july 2010 non parole period three year expiring 16 july 2007 count 4 posse unauthorised firearm andcount 5 posse unregistered firearm imprisonment fixed term two year commencing 17 july 2003 expiring 16 july 2005 11 aggregate sentence term imprisonment seven year commencing 17 july 2003 expiring 16 july 2010 non parole period four year expiring 16 july 2007 malicious wounding offence12 reason sentence dated 20 august 2004 sentencing judge observed wounding offence preceded episode drinking binge applicant estranged husband premise engadine 27 march 2003 four day consuming beer cask wine offender obtained kitchen knife cut wrist making superficial cut cutting husband throat ambulance called premise subsequently treated requiring 15 stiches left side neck ii first armed robbery13 9 15 pm thursday 17 july 2003 applicant entered bp service station situated 963 old prince highway engadine initial discussion service station attendant applicant pointed gun said 357 calibre magnum handgun loaded said money give money time attendant saw applicant finger trigger said something effect feeling nervous service station attendant moved away applicant gun pointed face commenced take money cash register grabbed applicant said give attendant said lifted tray cash register demonstrate fact placed money handbag soon left premise saying call police cause come back walked shop sight attendant thought approximately 350 400 taken incident iii second armed robbery14 9 30 pm 17 july 2003 applicant entered engadine pizza premise obviously intoxicated pointed gun towards assistant manager approximately metre away pointed gun moving haphazard manner according assistant manager said rob hand money moved closer till still pointing gun said hand money assistant manager took note counter placed front applicant saying gun magnum could cut half picked note counter put bag applicant agitated relation coin told hurry reached till grabbed handful coin placed bag said till assistant manager said one believe told would go back look safe door open took bank bag contains note change placed bag plastic bag containing 680 cash previous night taking also placed bag warning call police backed towards front door still gun hand reason sentence15 sentencing judge noted robbery premeditated significant extent observed considerably intoxicated time offence dealing objective seriousness offence honour observed brandishing loaded gun vulnerable employee engaged retail premise towards upper range criminality type offence question sentencing judge also observed applicant presence mind force attendant pizza shop open safe rear premise expressing dissatisfaction content till sentencing judge stated however body evidence support conclusion prisoner cognitive faculty judgment relevant time impaired long standing alcohol substance abuse mental health sequela p 3 16 applicant aged 42 year time commission offence mother seven child history debilitating mental health problem alcohol abuse medication large number admission sutherland hospital 1996 october 2002 written submission made behalf applicant stated applicant criminal record disclose history tend towards finding dangerousness accordance established principle veen v queen 2 1988 hca 14 1988 164 clr 465 criminal record included alcohol related driving offence contained one entry violence namely common assault 1990 17 reason sentence refer medical report including particular dr chris mcdowell consultant psychiatrist dated 20 august 2003 dr allnutt dated 27 april 2004 reason contain extensive reference history opinion dr mcdowell dr mcdowell commenced seeing applicant 9 january 2003 report refers extensive history alcohol abuse aggressive behaviour disruptive relationship reported use valium exacerbated unpredictable behaviour particular reference made opinion possible medication taken applicant particularly valium exacerbated tendency act violently additionally frontal lobe damage evident cerebral ct scan could explain applicant poor judgment development psychotic symptom considered likely diagnosis one borderline personality disorder typical hallmark feature associated substance abuse particularly alcohol abuse dependence diagnosis dr mcdowell considered would explain erratic behaviour 18 sentencing judge extracted relevant extract dr allnutt report 27 april 2004 including refers effect combination alcohol valium medication applicant judgment suggesting impairment extent capacity evaluate reality belief becomes severely impaired considered manifested symptom consistent psychiatric disorder evidence least april 2003 experiencing unusual belief consistent symptom psychosis described dr mcdowell dr allnutt expressed opinion long term presence symptom described supported differential diagnosis included chronic low grade schizophrenia schizoaffective disorder drug induced psychosis 19 dr allnutt concluded believe reasonable ground conclude time relation assault husband relation robbery client experienced altered mental state due number underlying condition described caused cognitive impairment impaired judgment poor volitional control p 11 ground 1 impact mental health issues20 sentencing judge referred relevant authority quoted extensively judgment gleeson cj inregina v engert 1995 84 crim r 67 reason sentence contained following key finding accept prisoner disorder might might acted without knowledge gravity action put another way prisoner intellectual function insufficient allow full understanding authority requirement law 21 latter expression appears reference toregina v champion 1992 64 crim r 244at 254 255 andregina v wright 1997 93 crim r 48per hunt cj cl 51 b mental disability relevant principles22 appropriate point record relevant proposition established authority question mental disability capacity relation question deterrence mental handicap short providing defence ground mental illness basis reduction sentence long recognised eg regina v smith 1958 75 wn nsw 198 regina v scognamiglio 1991 56 crim r 81 85 per grove j full understanding authority requirement law may attributed ordinary individual adult intellectual capacity cannot expected person extremely limited intellectual capacity champion supra 254 per kirby p constraint may demanded person ordinary adult intellectual capacity may operate operate effectively case person significant mental handicap community applies people principle general deterrence way sensibly moderated particular circumstance case champion supra 255 case le weight therefore given general deterrence sentencing judge required ass diminution applied sentence crime objectively merited reason offender reduced responsibility account relevant mental condition case offender suffering mental disorder abnormality general deterrence factor often given little weight offender appropriate medium making example others regina v anderson 1981 vicrp 17 1981 vr 155 1980 2 crim r 379per young cj sentencing person suffer mental disorder confronts judicial officer need make sensitive discretionary decision regina v engert supra 68 per gleeson cj number complex consideration may need taken account case deterrence others lesser importance time may mean protection society greater importance might time increase importance deterrence offender engert supra 68 per gleeson cj application principles23 sentencing judge referred relevant aspect medical report evidence case law principle turned deal application principle fact case consideration given sentencing judge essentially confined one paragraph p 9 reason sentence quoted paragraph 20 judgment24 next paragraph sentencing judge appears accepted applicant mental health problem relevant rehabilitation rather issue general deterrence honour stated would find special circumstance given applicant need ongoing treatment community interest renewal effort rid substance abuse problem 25 relation passage quoted paragraph 20 apparent statement way conclusion one identifies articulates reason analysis material upon conclusion said based whilst applicant doubt appreciation time armed robbery 17 july 2003 consider proper analysis opinion expressed dr allnutt treating psychiatrist dr mcdowell preclude conclusion applicant appreciated gravity action level understanding sufficient carried associated action case consistent appreciation authority requirement law respect sentencing judge necessary distinction made mentally disabled offender act knowledge one hand possessing knowledge gravity action seewright supra per hunt cj cl 51 26 borne mind import significance medical evidence present case may fully appreciated nature applicant mental condition established medical evidence27 medical evidence question applicant mental disability relevant first ground appeal may summarised following point applicant history alcohol abuse indicated poor judgment intoxicated time offence applicant taking combination medication including valium reported literature cause paradoxical reaction people aggravated alcohol intoxication intoxicated alcohol combination valium medication applicant judgment impaired extent sense capacity evaluate reality termed belief becomes severely impaired time would experience episode psychosis ct evidence frontal lobe atrophy area brain particularly involved judgment volitional control applicant described behaviour time alleged offence robot like fashion feeling disconnected behaviour reasonable ground conclude time relation assault applicant husband relation robbery applicant experiencing altered mental state due number underlying condition caused cognitive impairment impaired judgment poor volitional control 28 following point particular emerge report dr chris mcdowell 20 august 2003 one treating doctor applicant history one exacerbation unpredictable behaviour using valium valium certainly act disinhibiting medication exacerbate aggression applicant attempting cut valium prescribed local doctor last seen 10 july 2003 seven day offence applicant taking 7 5 milligram daily valium applicant exhibited symptom borderline personality disorder marked substance abuse diagnosis explained applicant erratic behaviour mood swing self destructive behaviour problem anger depression possible medication particularly valium exacerbated tendency act violently suggestion frontal lobe damage demonstrated ct scan showed frontal lobe atrophy also affect judgment may related development psychotic symptom well observation medical evidence29 effect evidence applicant time offence suffered impairment judgment volitional control lengthy history psychiatric problem hospital admission treatment 30 given precipitating history drug abuse particular alcohol valium medication consumed prior offence hard avoid conclusion evidence applicant form altered mental state impacted upon cognitive capacity judgment volitional control evidence two eminent experienced psychiatrist entirely consistent one attests support conclusion 31 case evidence establish mental disorder causally related commission malicious wounding armed robbery offence applicant submissionsground one sentencing judge erred insufficient regard applicant history mental illness32 primary contention relation ground one plaintiff history mental illness treated first offence history together behaviour time commission offence suggested afflicted mental illness falling short insanity 33 reliance placed upon sentencing principle inanderson supra 160 court inter alia stated general deterrence often given little weight case offender suffering mental disorder abnormality offender appropriate medium making example others 34 court stated mental condition offender may taken account passing sentence whether evidence establishes legal insanity mental illness stopping short legal insanity question answered whether interest society permit interest offender require sentence passed reduced would otherwise appropriate rather whether offender responsibility offence regarded reduced 35 central issue arising ground one whether sentencing judge failed ass diminution applied sentence regard effect applicant mental condition ability appreciate gravity action impaired volition subset submission general deterrence factor ought accorded weight given sentencing judge 36 need caution exercised resolving issue much clear judgment gleeson cj inengert supra especially 68 mental condition chief justice observed may lessen whatever might otherwise importance general deterrence time increase importance deterrence offender p 68 37 important examine approach taken sentencing judge allowing applicant mental condition secondly determine effect approach upon level sentence imposed giving due allowance discretionary nature sentencing decision 38 whether diminution sentence reduced importance general deterrence allowance factor may depend upon whether counter balancing sentence importance specific deterrence need protect public 39 essential question case whether sentencing judge failed moderate consideration general deterrence whether failure offset making appropriate reduction sentence adopting another approach approach adopted based upon erroneous finding applicant acted knowledge knowledge gravity action 40 clear quoted passage 20 sentencing judge reduce sentence account lack need general deterrence arising applicant mental condition arose finding earlier concluded contrary medical evidence however finding special circumstance relation effective head sentence seven year effective non parole period four year meant statutory ratio 75 varied 50 however still leaf unanswered question whether effective head sentence appropriate given sentencing judge conclusion accept contrary evidence applicant acted without knowledge gravity action 41 inengert supra gleeson cj emphasised observation badgery parker j inregina v letteri cca unreported 18 march 1992 namely every case matter balancing relevant factor manner different involved every sentencing exercise 42 reason consider erroneous conclusion sentencing judge impact effect applicant mental disorder ability appreciate gravity action effect valium contributor applicant acting violently consider error call intervention court 43 head sentence seven year represents starting point allowing discount utilitarian value plea guilty almost 10 year respect admittedly serious offence malicious wounding crime act 35 maximum penalty imprisonment seven year two offence robbery whilst armed dangerous weapon crime act 92 2 maximum penalty 25 year latter offence whilst accept crown submission offence indeed offence unders 35 grave indeed applicant middle aged mentally ill mother entirely come within category case subject guideline judgment inregina v henry 1999 nswcca 111 1999 46 nswlr 346 offence character described chief justice 380 armed robbery generally said fall within four five year full term lose sight fact applicant committed one two offence unders 97 2 thecrimes actwithin 15 minute 17 july 2003 44 inregina v israil 2002 nswcca 255 crown appealed alleged inadequacy sentence imposed district court respect one count robbery armed offensive weapon namely blood filled syringe contrary tos 97 1 thecrimes act 1900and second count attempted robbery offensive weapon namely mock rifle contrary tos 344aof thecrimes act 1900 two additional charge taken account form 1 namely demanding money menace another armed robbery 45 respondent case history delusional conduct young age later exacerbated taking range drug time offence using heroin cocaine 46 trial judge accepted respondent suffered mental illness namely substance induced psychosis mood disorder well underlying psychotic disorder either schizophrenia bi polar mood disorder evidence respondent prospect rehabilitation good provided treatment remained place 47 court inisrail supra used thehenry supra guideline four five year starting point respondent benefit 25 discount early plea reduced tentative sentence three year six month already served almost seven month custody court determined term imprisonment two year taking account time actually served custody sentence imposed respect two offence suspended upon respondent entering bond good prospect rehabilitation major consideration 48 spigelman cj inisrail supra reviewed authority noting requirement general deterrence significant consideration sentencing offence armed robbery chief justice recorded following proposition significance mental illness offender sentencing exercise long accepted relevant authority reviewed new south wale court criminal appeal victorian court appeal western australian full court regina v fahda 1999 nswcca 267at 40 48 per simpson j regina v harb 2001 nswcca 249at 35 45 per smart aj regina v lauritsen 2000 114 crim r 366 especially 43 51 per malcolm cj andregina v tsiaras 1996 vicrp 26 1996 1 vr 398at 400 extent mental illness explains offence offender inability understand wrongfulness action make reasonable judgment control faculty emotion impact level culpability offender even illness amount excuse law accordance observation malcolm cj inlauritsen supra 48 mental illness relevant assessing culpability case must shown contributed offence also relevant assessing level danger offender present appropriate way offender rehabilitated mental illness taken account sentencing whether played part commission offence consequence imposition sentence exceeds seriousness offence mental illness may also lead conclusion particular case element personal deterrence general deterrence also entitled le weight sentencing process might otherwise specific deterrence may difficult achieve often worth pursuing tsiaras supra 400 custodial sentence may weigh heavily mentally ill person may material consideration determining length sentence served difficulty arise element congruence drug addiction mental illness separating effect mental illness 49 spigelman cj inisrail supra cited following observation wood cj cl inhenry supra 254 community readily understand offender suffers mental disorder abnormality le control cognitive faculty emotional restraint instance lack ability make reasoned ordered judgment almost invariably limited appreciation wrongfulness act moral culpability although falling short avoiding criminal responsibility justify special consideration upon sentencing 50 inregina v way 2004 nswcca 131 2005 60 nswlr 168at 187 court criminal appeal stated relevant circumstance said objectively affect seriousness offence personal offender time offence become relevant causal connection commission would extend matter motivation mental state example intention serious recklessness mental illness intellectual disability causally related commission offence insofar offender capacity reason appreciate fully rightness wrongness particular act exercise appropriate power control affected fact classified circumstance offence merely circumstance offender might go appropriate level punishment 51 medical evidence tendered sentencing hearing confirms long history alcohol dependence past abuse prescription based medication combination alcohol problematic frequent subsequent applicant child taken care department community service 2002 dependency abuse substance escalated significantly central factual matter extent mental health associated problem impaired capacity reason appreciate rightness wrongness act associated malicious wounding two armed robbery offence plainly applicant capacity seriously impaired occasion due combination problem effect upon circumstance cannot opinion said possessed full understanding authority requirement law attributed ordinary individual adult intellectual capacity regina v wright supra 51 established mean court give effect principle instrument social administration moderate consideration general deterrence circumstance particular case champion supra 254 255 andwright supra 51 52 medical evidence sentencing judge indicated applicant abuse alcohol compounded severity mental health problem inability respond treatment evident required intensive ongoing therapeutic treatment address alcohol dependence mental health issue make satisfactory transition community released custody 53 detailed report dr allnutt dated 27 april 2004 refers applicant realisation extent problem past alcohol motived continue pursue alcohol drug rehabilitation dr allnutt expressed view remained abstinent substance risk recidivism would substantially reduced determination54 consideration ground one court mindful gleeson cj stated inengert supra paragraph 22 sentencing person suffer mental disorder confronts judicial officer need make sensitive discretionary decision equally complex consideration needed taken account including issue deterrence issue necessary considered interest protection society 55 although sentencing judge regard applicant mental health relevant significant weight attached fact context applicant rehabilitation rather issue general deterrence honour allowance respect contained statement thatspecial circumstanceswould found given applicant need ongoing treatment community interest renewal effort rid substance abuse problem critical question whether allowance sufficiently give effect relevant sentencing principle evidence proceeding 56 earlier noted sentencing judge determined non parole period four year determined overall term seven year non parole period accordingly represents something excess 50 overall term seven year imprisonment 57 applying relevant principle earlier observed consider variation statutory ratio unders 44of thecrimes sentencing procedure act 1999provides sufficient allowance applicant reduced culpability due mental condition disclosed medical evidence opinion circumstance lesser sentence warranted law relation three offence 58 accordingly applicant sentenced give effect evidence respect accordance principle stated gleeson cj inengert supra spigelman cj inisrail supra ground two sentencing judge erred finding offence committed breach suspended sentence59 applicant submitted sentencing judge erred placed significance aggravating factor upon fact offence committed breach suspended sentence imposed driving related matter fact order suspending sentence honour referred stayed 26 june 2003 appeal lodged district court order stay dispensing bail made 60 applicant counsel also relies upon fact sentencing remark disclose error much sentencing judge stated offence committed currency suspended sentence 61 satisfied error relied upon influential significant effect honour overall approach main issue subject matter ground one present application accordingly consider lesser sentence warranted law basis ground two 6 3 thecriminal appeal act 1912 nsw 62 consider appropriate sentence imposed follows count 1 offence malicious wounding applicant sentenced fixed term imprisonment oftwo year date 17 july 2003 expire 16 july 2005 respect sentence non parole period appropriate regard structure sentence involved respect armed robbery offence b count 2 respect first count armed robbery dangerous weapon sentence ofthree year six monthsto date 17 january 2004 expire 16 july 2007 respect sentence non parole period oftwo yearsto date 17 january 2004 expire 16 january 2006 c count 3 respect second count armed robbery dangerous weapon sentence imposed offive yearsto commence 17 july 2004 expire 16 july 2009 respect sentence non parole period oftwo yearsto date 17 july 2004 expire 16 july 2006 count 4 posse unauthorised firearm count 5 posse unregistered firearm sentence imprisonment fixed term ofone year commencing 17 july 2003 expiring 16 july 2004 63 effective head sentence accordinglysix year effective non parole period ofthree yearsexpiring 16 july 2006 applicant eligible release parole 16 july 2006 plainly eligibility release parole determined parole authority light progress particular extent applicant demonstrated ability manage alcohol drug mental health issue 64 accordingly propose following order leave appeal granted b appeal allowed sentence imposed district court quashed c lieu thereof sentence applicant term imprisonment follows count 1 offence malicious wounding applicant sentenced fixed term imprisonment oftwo year date 17 july 2003 expire 16 july 2005 respect sentence non parole period appropriate regard structure sentence involved respect armed robbery offence ii count 2 respect first count armed robbery dangerous weapon sentence ofthree year six monthsto date 17 january 2004 expire 16 july 2007 respect sentence non parole period oftwo yearsto date 17 january 2004 expire 16 january 2006 iii count 3 respect second count armed robbery dangerous weapon sentence imposed offive yearsto commence 17 july 2004 expire 16 july 2009 respect sentence non parole period oftwo yearsto date 17 july 2004 expire 16 july 2006 iv count 4 posse unauthorised firearm count 5 posse unregistered firearm sentence imprisonment fixed term ofone year commencing 17 july 2003 expiring 16 july 2004 65 accordance order proposed appellant eligible released parole upon expiry non parole period specified 16 july 2006 last updated 06 09 2005

Re MacTiernan; Ex Parte Aberdeen Nominees Pty Ltd & Ors [2004] WASCA 262 (17 November 2004).txt

mactiernan ex parte aberdeen nominee pty ltd or 2004 wasca 262 17 november 2004 last updated 22 november 2004jurisdiction supreme court western australiacitation mactiernan ex parte aberdeen nominee pty ltd or 2004 wasca 262coram steytler jtempleman jmiller jheard 16 september 2004delivered 17 november 2004file civ 2476 2003matter application writ ofmandamusagainst honourable alannah mactiernan mla minister planning infrastructureex parteaberdeen nominee pty ltd acn 008 849 527 talia nominee pty ltd acn 008 849 518 coastal estate pty ltd acn 008 679 276 caspar pty ltd acn 008 688 293 applicantscatchwords cost ordernisifor writ ofmandamus proceeding unnecessary whether conduct respondent unreasonable justify order cost turn factslegislation land administration act 1997 wa 207 218 220 b 241 6 result application dismissedcategory brepresentation counsel applicant mr w mcleodminister planningand infrastructure mr k pettit sc mr j matthewssolicitors applicant mcleodsminister planningand infrastructure state solicitorcase referred judgment grundy v lewis 1998 fca 563melbourne steamship co ltd v moorehead 1912 hca 69 1912 15 clr 333minister environment v florence 1979 21 sasr 108o neill v mann 2000 fca 1680r v commonwealth court conciliation arbitration ex parte ozone theatre aust ltd 1949 hca 33 1949 78 clr 389r v gold coast city council ex parte raysun pty ltd 1971 qwn 13re minister immigration ethnic affair cth ex parte lai qin 1997 hca 6 1997 186 clr 622scott v handley 1999 fca 404tooth v brisbane city council 1928 hca 20 1928 41 clr 212case also cited byrne v victorian railway commission 1892 viclawrp 133 1892 18 vlr 671cordell v housing commission 1948 viclawrp 43 1948 vlr 257march v city frankston 1969 vicrp 44 1969 vr 350melwood unit pty ltd v commissioner main road 1976 37 lgra 355mobbs v valuer general 1922 6 lgr 73o neill v mann 2000 fca 1680smith v shire eltham 1977 vicrp 14 1977 vr 1331steytler j considerable advantage reading draft judgment templeman j miller j set fact circumstance giving rise application cost also applicable legal principle need repeat except insofar necessary explain conclusion 2 question decision come essentially whether respondent minister shown acted unreasonably exercising refusing exercise power leaving applicant reasonable alternative commence continue application good sense prevailed r v gold coast city council ex parte raysun pty ltd 1971 qwn 13 minister immigration ethnic affair cth ex parte lai qin 1997 hca 6 1997 186 clr 622at 624 625 counsel applicant contends applicant cost counsel respondent contends side agree order cost save respondent would want cost argument cost 3 principal application judgment explain one prerogative relief requiring respondent extend time making claim compensation injurious affection severance damage land described lot 1 arising resumption respondent land adjacent 4 applicant good time brought claim compensation minister arising taking resumed land including claim injurious affection adjacent land party could agree upon amount compensation paid applicant issued writ minister however reason explained judgment party arrived opinion applicant mistakenly failed include claim lot 1 part land adversely affected resumption 5 applicant tried first obtain minister consent amendment claim include claim compensation respect effect resumption value lot 1 minister would consent relied advice state solicitor office effect provision ofs 218of theland administration act 1997effectively precluded led request applicant extension time within bring claim respect lot 1 took minister three half month respond said relying upon legal advice thats 218of act stood path applicant request also said received advice event extremely doubtful applicant would entitled claim injurious affection severance lot 1 6 3 september 2003 applicant asked minister reconsider decision eventually outcome unfavourable applicant letter dated 11 december 2003 said effect received advice regard provision act agree extension time amendment existing claim also repeated received advice effect applicant claim appeared substance event 7 3 december 2003 applicant seemingly anticipated minister response issued notice originating motion prerogative relief form writ ofmandamus 8 applicant solicitor mcleods struck similar problem another matter another client acacia brook pty ltd made claim compensation following resumption land omitted claim damage injurious affection severance respect adjacent land minister refused grant extension time purpose bringing additional claim however time mcleods letter dated 17 november 2003 gave notice state solicitor would bring proceeding seeking declaration proper construction act power court make award compensation proceeding commenced unfettered amount description matter account compensation claimed included omitted claimant claim compensation 9 unlike applicant proceeding acacia brook pty ltd yet commenced action compensation letter dated 24 june 2004 state solicitor said defendant proceeding would commissioner main road would plead submit power court make award compensation fettered amount description matter account compensation claimed claim submitted commissioner letter went say revised claim would set claimant statement claim element claim would treated merit 10 two three week later minister made similar concession proceeding state solicitor proposed plaintiff proceed action compensation upon assurance client action undersection 220 b act client plead submit power court make award compensation fettered amount description matter account compensation claimed included omitted plaintiff claimant claim compensation lodged pursuant topart 10division 2 act 11 proposal accepted applicant extent agreed reliance upon concession withdraw application writ ofmandamus however wanted minister pay cost application would hence application 12 anything minister conduct might characterised unreasonable warrant making cost order applicant contend argue bring application prerogative relief minister intransigence long period time result mistaken view operation relevant provision act also argue one view least claim compensation brought respect lot 1 substantial risk court would action commenced writ make declaration reach conclusion term similar sought acacia proceeding contend would imprudent abandon application prerogative relief absent concession kind ultimately made minister 13 respectful opinion none even correct discloses unreasonableness part minister sufficient warrant making cost order position respect application extension time arrived strength legal advice far see never departed whether advice right wrong question unnecessary decide opinion unreasonable relied upon also importantly minister obligation make concession led resolution proceeding prerogative relief applicant contend forced threat acacia proceeding seems overstatement indeed counsel applicant said absentthe concession guarantee court would applicant action make declaration reach conclusion kind sought acacia proceeding said put one justification pursuing claim prerogative relief 14 circumstance even allowing consideration peculiar minister referred templeman j also fact good deal delay part persuaded minister conduct unreasonable warrant order payment cost proceeding prerogative relief would consequently dismiss application cost award minister cost application taxed 15templeman j applicant seek cost application writ ofmandamusagainst honourable alannah mactiernan mla minister planning infrastructure minister despite fact wish discontinue application 16 applicant say application formandamusbecame necessary minister acted unreasonably relation claim compensation following compulsory acquisition land applicant longer requiremandamusbecause minister proposed settlement place position sought achieve 17 applicant registered proprietor 139 hectare land near dawesville south mandurah 9 november 1999 7 7 hectare land taken minister transport work associated realignment perth bunbury highway resulted severance land registered applicant name 18 severed land included parcel described paper lot 1 31 march 1998 applicant contracted sell chamonix holding pty ltd chamonix 19 however settlement take place chamonix contract 6 april 2000 applicant remained registered proprietor lot 1 taking date thereforeprima facieentitled claim compensation 20 9 january 2001 applicant delivered minister transport claim compensation arising taking part land claim related 7 7 hectare taken itincluded claim land adjacent taken reduced value reason severance 21 schedule applicant claim land taken described part portion murray location contained plan 23775 part land comprised certificate title volume 2030 folio 531 comprising area 7 7157 hectare 22 adjacent land said reduced value described schedule c following way portion murray location 1036 excluding portion contained plan 23775 remainder land contained certificate title volume 2030 folio 531 23 noted description included land applicant registered proprietor including lot 1 24 schedule claim applicant set interest adjacent land land described schedule c applicant said owner fee simple tenant common equal share subject excision lot 1 25 applicant error excluding lot 1 schedule noted remained registered proprietor lot even though contracted sell 26 following unsuccessful attempt negotiate settlement compensation claim applicant commenced proceeding writ filed 10 march 2003 endorsed statement claim defendant named main road wa 27 par 8 statement claim applicant referred contract chamonix whereby contracted sell lot 1 retained right claim paid compensation 28 3 april 2003 defence applicant claim filed behalf minister transport minister appropriate defendant transport planning portfolio since combined ministry planning infrastructure 29 par11 minister defence admitted applicant made claim compensation however minister contended land respect said claim made include land described lot 1 30 contention presumably founded wording schedule set however minister adopted different position application contends lot 1 omitted schedule c applicant original claim arguably omitted see outline submission dated 15 september 2004 filed behalf minister par 13 however faced original denial clearly prudent applicant take step safeguard position 31 24 april 2003 applicant solicitor mcleod co mcleods wrote acting acquisition manager main road department mcleods referred applicant compensation claim dated 8 january 2001 said note schedule c erroneous exclusion portion subject land ie lot 1 necessary amend claim compensation deleting word copy amended claim enclosed herewith please advise whether content accept deal claim form whether necessary client make application minister extension time make claim respect land ab 34 32 schedule c proposed amended claim compensation following term portion murray location 1036excluding portion contained plan 23775and theremainderland contained certificate title volume 2030 folio 531 33 view mcleods error reformulating schedule c way schedule c problem schedule required amendment 34 response mcleod letter came senior assistant crown solicitor crown solicitor letter dated 30 april 2003 said instructed inform client accept amended claim regard refer tos 218of theland administration act 1997 ab 41 35section 218of theland administration act 1997 theact provides time claim compensation settled full proceeding determination amount compensation commenced court claimant may notice acquiring authority amend claimonly amount claimedand authority may notice claimant amend offer compensation emphasis 36 crown solicitor response entirely consistent minister earlier position applicant made claim respect lot 1 37 faced response director applicant mr john perry wrote minister 1 may 2003 mr perry said applicant obtained legal advice making claim compensation error made schedule c land registered proprietor comprising 18 2703 ha plan 23263 error excluded description land affected injurious affection severance course claiming compensation served upon main road western australia copy amended plan compensation including missed land rejected therefore alternative ask honourable ministerfor extension timewithin make late claim respect injurious affection severance suffered 18 2703 ha enclose copy amended claim circumstance land omitted claim described error honest one would grateful minister could therefore exercise discretionand grant extension time emphasis ab 42 38 applicant mr perry error asserting problem claim lay within schedule c respect extraordinarily long delay 31 2 month minister replied mr perry 18 19 august 2003 39 referring mr perry letter 1 may 2003 minister said sought extensive legal advice matter indicates theland administration act 218 specific relation matter provides amendment made amount claim advised additional head claim cannot added claimant understand commenced action address claim compensation supreme court respect advised severed land subject contract sale unrelated party prior notice intention take extremely doubtful would entitled claim injurious affection severance land attempting include claim basis regret unable assistance ab 43 40 three point arise minister letter first appears error mr perry letter still detected minister crown solicitor 41 secondly minister deal mr perry request applicant attempt amend claim rejected basis claim made respect lot 1 sought extension time bring claim thus although mr perry said letter substance asking minister exercise discretion pursuant tos 207 2 theact section 207 1 imposes time limit six month registration taking order within claim compensation may made section 207 2 provides time limit whether expired section may application person wish make claim extended minister satisfied application reasonable made good faith 42 thirdly point chamonix contract referred minister letter already taken defence applicant claim least sense applicant contention retained right claim paid compensation respect lot 1 denied aspect defence presumably based decision high court intooth v brisbane city council 1928 hca 20 1928 41 clr 212 necessary consider issue present purpose 43 3 september 2003 mcleods responded minister letter mr perry mcleods referred request extension time present claim respect lot 1 claim made yet letter continued note advice given minister must respectfully disagree case claim yet made respect injurious affection severance suffered piece land question amending existing claim question facilitating making claim client respect piece land without permission possible claim made party piece land consequently government find position pay compensation consequence refusal grant leave even though land injuriously affected taking plainly inequitable result one may occurred minister circumstance would respectfully ask minister reconsider decision ab 44 44 mcleods assertion claim made respect lot 1 reflected basis party proceeding 45 mcleods requested response letter within 14 day 17 september 2003 reply received mcleods wrote day inform minister applicant instruction issue prerogative writ challenge reasonableness minister decision ab 46 46 still response 12 november 2003 mcleods wrote date relation second point made minister letter dated 18 19 august 2003 mcleods enclosed copy contract applicant chamonix copy deed assignment whereby right compensation assigned applicant letter continued believe minister operating mistake law relies uponsection 218of theland administration act 1997 although would dispute crown law interpretation section opinion section 218has application proceeding issued displace plenary power court important focus upon fact yet claim compensation respect injurious affection severance suffered land subject two enclosed deed consequently question amended claim claim respect land yet submitted seek minister consent late submission ab 47 47 mcleods went say practical client proceed litigation basis court would ultimately decide question jurisdiction award compensation respect lot 1 reason advanced would significant cost involved preparing hypothetical development scenario plainly important issue resolved stage ab 48 48 11 december 2003 long delay minister replied mcleod letter 3 17 september 12 november minister said client contract perused crown solicitor office observation made clause 7 relates right purchaser chamonix holding pty ltd compensation understand chamonix claimed compensation none land compulsorily taken appears unlikely entitlement compensation hence difficult understand client could acquired additional right way assignment remain view course adopted previously matter consistent power theland administration act 1997 theact decline extend time making new claim relates solely injurious affection asserted incurred incidental taking turn subject existing claim similarly consider direct amendment existing claim add additional basis claim distinct amending amount claim permitted term ofsection 218of theact 49 first paragraph set reflects error part crown solicitor office true chamonix claimed compensation however entitlement material time applicant registered proprietor 50 minister response application extension time make claim respect lot 1 appears proceeded basis claim injurious affection could stand alone course claim could made respect land affected compulsory acquisition land however view statutory framework permit separate claim made respect land acquired compulsorily land affected acquisition provision making claim contained in 211of theact following term 1 claim compensation part must approved form stating particular identifying land respect claim made b nature particular claimant interest land c land interest charged leased subject easement particular charge lease easement matter account compensation claimed particular nature extent claim e claimant full name address service 51 course proposed applicant would required make claim severance damage relating lot 1 would made plain unders 211 1 claiming damage kind consequent upon compulsory acquisition land 52 doubt anticipation minister unfavourable response application applicant instituted proceeding writ ofmandamusby notice originating motion dated 3 december 2003 application applicant sought order minister show cause writ ofmandamusshould issued compel properly exercise discretion applicant request unders 207 2 actfor extend time making claim compensation respect injurious affection severance damage caused lot 1 taking 7 7157 hectare purpose dawesville deviation ab 4 5 order term made barker j 9 december 2003 53 event unfolding similar problem arisen two matter mcleods acting behalf claimant compensation one matter acacia brook pty ltd acacia prepared claim compensation following compulsory acquisition omitted claim damage injurious affection severance remaining land 54 relation acacia minister position identical adopted present case declined grant extension time enable acacia make additional claim 55 acacia matter mcleods adopted different approach 17 november 2003 informed crown solicitor instruction issue originating summons seeking declaration proper construction actand particularsections 218and241 power court make award compensation proceeding commenced unfettered amount description matter account compensation claimed included omitted claimant claim compensation ab 69 56 letter dated 17 november 2003 crown solicitor said neither commissioner main road minister prepared agree declaration solicitor said proceeding would defended 57 acacia commenced proceeding originating summons 8 march 2004 58 letter dated 24 june 2004 state solicitor crown solicitor become wrote mcleods relation acacia follows claimant commence action compensationin court appropriate jurisdiction pursuant tosection 220 b act commissioner would plead submit power court make award compensation fettered amount description matter account compensation claimed claim submitted commissioner revised claim would set claimant statement claim element claim would treated merit ab 117 emphasis 59 clearly significant difference acacia case present case acacia commenced proceeding requested minister grant extension time pursuant tos 207of theact 60 despite difference two set proceeding state solicitor wrote mcleods 12 july 2004 relation themandamusapplication following term 1 plaintiff proceed action compensation upon assurance client action undersection 220 b theact client plead submit power court make award compensation fettered amount description matter account compensation claimed included omitted plaintiff claimant claim compensation lodged pursuant topart 10division 2 theact 2 application writ mandamus withdrawn 3 party bear cost relation application ab 123 61 response letter mcleods sought contribution client cost relation themandamusapplication rejected minister state solicitor hence present application 62 court wide discretion relation cost proceeding discontinued order 23 r 2 3 provides save rule otherwise provided shall competent plaintiff discontinue action without leave court court may hearing trial upon term cost action otherwise may order action discontinued virtue ofs 4of thesupreme court act 1935 themandamusproceedings fall within meaning term action 63 law relation cost set succinctly seaman civil procedure par 23 2 8 referring term r 2 3 wide enough enable court make cost order required justice case commentary go note conduct party matter reason discontinuance bear heavily exercise discretion cost neill v mann 2000 fca 1680at 13 hence plaintiff obtains leave discontinue action circumstance without trial secured defendant relief sought proceeding court power order defendant pay plaintiff cost proceeding however plaintiff discontinues cannot succeed plaintiff may granted leave term pay defendant cost action garwolin nominee pty ltd v statewide building society 1984 vicrp 38 1984 vr 469at 472 party acted reasonably commencing defending proceeding continued reasonable litigation settled prosecution became futile proper exercise cost discretion usually mean court make order cost proceeding minister immigration ethnic affair ex parte laiqin 1997 hca 6 1997 186 clr 622at 624 625 64 applicant contend acted reasonably commencing themandamusproceedings minister acted unreasonably dealing generally matter 65 minister contends pay cost themandamusproceedings application formandamuswas always unnecessary first contended themandamusquestion could decided substantive application compensation minister relies letter 23 february 2004 mcleods written ordernisifor writ ofmandamushad obtained minister said regardless merit client claim injurious affection proper measure loss appropriately addressed proceeding determination claim already commenced nonetheless confined ability act term ofsection 207of theland administration act 1997 ab 77 assume reference tos 207of theactto error event minister position set defence applicant claim respect lot 1 could pursued action 66 true correspondence mcleods referred themandamusapplication substance preliminary point substantive action sense preliminary point however point needed resolved substantive action proceeded mcleods made plain correspondence minister would necessary prepare case different base depending outcome preliminary point would costly inefficient 67 secondly minister relies fact mcleods mistaken believing schedule c applicant original claim compensation contained error whereas error lay schedule 68 mcleod mistake subject correspondence state solicitor april june 2004 relation proposed amended schedule c letter mcleods dated 23 april 2004 said impossible see view deletion word result lot 1 included claim see exhibit hjs3 affidavit hilton john somerville sworn 3 september 2004 took time mcleods appreciate point admitted somewhat obtuse however rightly pointed letter dated 4 june 2004 state solicitor minister could hardly misapprehension real point seems mcleod mistake came light late stage senior counsel retained state 69 thirdly minister relies offer settle themandamusproceedings proposed letter dated 12 july 2004 set recalled minister proposed compensation action proceed basis minister would take point amount compensation claimed action would fettered way original claim made 70 view irrelevant minister came present position action result acceptance similar proposal acacia matter fact result proposal put mcleods 12 july 2004 themandamusaction became unnecessary application became unnecessary result minister proposal applicant position would minister granted extension time pursuant tos 207of theact 71 view applicant acted reasonably making themandamusapplication think reason set strong argument minister mi exercised discretion contending thats 218of theactwas relevant application made unders 207 accept minister acting advice material time took contrary view however think minister persuaded advice adopt unreasonable position 72 two important consideration context first dispute subject subject claim compensation land acquired compulsorily inminister environment v florence 1979 21 sasr 108 p 134 passage applied frequently well j noted compulsory acquisition case differ ordinary claim claimant unlike ordinary plaintiff choice whether make claim mere acquisition compulsory process gave claim compensation could hardly expected renounce honour went say compensation case claimant ought absence special circumstance receive reasonable cost obtaining compensation ex hypothesi due view cost themandamusapplication fall category 73 second consideration minister expected conduct model litigant inmelbourne steamship co ltd v moorehead 1912 hca 69 1912 15 clr 333at 342 griffith cj passage applies much state agency commonwealth said sometimes inclined think part commonwealth old fashioned traditional almost instinctive standard fair play observed crown dealing subject learned long time ago regard elementary either known thought date glad think mistaken 74 passage applied full court federal court inscott v handley 1999 fca 404where court said insistence upon standard recurrent theme judicial decision country relation conduct litigation three tier government see egyong v minister immigration multicultural affair 1997 75 fcr 155at 166 hughes aircraft system international v airservices australia 1997 fca 558 1997 76 fcr 151at 196 197 sci operation pty ltd v commonwealth australia 1996 69 fcr 346at 368 director public prosecution cth v saxon 1990 28 nswlr 263at 267 kenny v state south australia 1987 46 sasr 268at 273 logue v shoalhaven shire council 1979 1 nswlr 537at 558 559 p c cantarella pty ltd v egg marketing board nsw 1973 2 nswlr 366at 383 384 see alsor v tower hamlet london borough council ex parte chetnik development ltd 1988 1 ac 858at 876 877 broad generalisation burden fair dealing standard best appreciated particular exemplification individual case court example spoken positively public body obligation conscientious compliance procedure designed minimise cost delay kenny scase 273 assisting court arrive proper result p c cantarella pty ltd v egg marketing board 383 spoken negatively taking purely technical point practice procedure yong scase 166 unfairly impairing party capacity defend saxon scase 268 taking advantage default sci operation pty ltd 368 75 present case think respect minister fell short fair dealing standard appears correspondence referred minister delayed unreasonably dealing applicant request extension time bring claim relation lot 1 76 request made result apparent error unrepresented claimant clear entitlement compensation severance 77 minister asked reconsider decision basis discretion may miscarried minister delayed unreasonably dealing request maintained 11 month applicant could permitted either amend claim compensation relation lot 1 make additional claim minister adopted position found themandamusproceedings successful 78 circumstance consider minister ought pay applicant cost themandamusapplication taxed 79miller j return ordernisifor writ ofmandamusand application declaratory relief proceeding brought applicant minister planning infrastructure minister requiring show cause court writ ofmandamusshould issued compel properly exercise discretion request made applicant unders 207 2 theland administration act 1997 wa theact extend time making claim compensation respect injurious affection severance land declaration sought minister decision exercise discretion extend time applicant making claim compensation unreasonable exercise discretion unders 207 2 theact 80 9 december 2003 barker j granted ordernision following ground minister made error law rely 218 laactin refusing exercise discretion extend time submission late claim compensation respect lot 1 becauses 218is irrelevant discretion 207 2 laact b minister made mistake fact basing decision refuse consent application extension time make claim respect lot 1 upon view previous claim compensation relating lot 1 precludes making second claim ii standing applicant claim compensation respect lot 1 doubtful c context factual matrix described supporting affidavit john david perry sworn 1st day december 2003 minister decision exercise discretion extend making claim respect lot 1 amended claim include claim lot 1 unreasonable 81 background matter taking order registered department land administration 9 november 1999 whereby 7 715 hectare land taken purpose dawesville deviation thereby severing allegedly damaging unresumed portion certain land applicant registered proprietor 82 9 january 2001 applicant delivered minister transport acquiring body claim compensation included claim severance injurious affection provision ofs 241 6 b theactin respect damage suffered land owned applicant resumed question whether certain parcel land described lot 1 excluded claim form land applicant claiming damage severance injurious affection 83 claim made accepted minister transport offer compensation advance payment made letter dated 15 january 2002 offer rejected party unable agree mutually acceptable amount compensation 84 latter part 2002 applicant instructed solicitor considered difficulty respect claim compensation lot 1 omitted claim thereupon sought amend claim application rejected crown solicitor office advised solicitor applicant refer tos 218of theact section provides time claim compensation settled full proceeding determination amount compensation commenced court claimant may notice acquiring authority amend claim amount claimed authority may notice claimant amend offer compensation 85 application made minister extension time within make late claim application made unders 207 2 theact provides minister may satisfied application reasonable made good faith extend time limit six month registration relevant taking order making claim compensation 86 minister responded application advising thats 218of theactwas specific provided amendment could made amount claim additional head claim could added 87 applicant entered correspondence minister without success finally initiated proceeding 88 court taken substantial volume correspondence passed solicitor applicant minister minister legal adviser correspondence reveals 12 july 2004 become clear unnecessary applicant obtain extension time making claim unders 207of theact pursuant provision ofs 220 b theact applicant entitled commence action compensation acquiring authority would contended behalf minister transport power court make award compensation fettered way amount description matter account compensation claimed included omitted claimant claim compensation lodged pursuant topart xdivision 2 theact 89 letter 12 july 2004 senior assistant state solicitor suggested circumstance application writ ofmandamusshould withdrawn party bear cost relation application 90 proposal unacceptable applicant contend reason way matter resolved minister responsible applicant cost incidental themandamusand declaratory relief proceeding 91 applicant proceed ordernisior application declaratory relief done doubtful relief would granted useful result could ensue grant relief sought r v commonwealth court conciliation arbitration ex parte ozone theatre aust ltd 1949 hca 33 1949 78 clr 389at 400 92 applicant effectively discontinuing proceeding ordernisineeds discharged application declaratory relief dismissed circumstance would normally liable minister cost unless court order otherwise ingrundy v lewis 1998 fca 563 cooper j 12 set relevant principle follows although power award cost unfettered federal court rule underlying policy party discontinues proceeding held liable cost party cost occasioned part proceeding discontinued unless court otherwise order see example 22 r 3 62 r 26 reason similar approach taken application interlocutory relief abandoned cost notice motion interlocutory injunctive relief abandoned withdrawn ordinarily borne original moving party notice motion long standing see example kerr injunction 3rd ed 1888 p33 view respondent notice motion entitled cost incidental notice motion unless engaged conduct ought disqualify benefit cost order conduct party prior proceeding may result otherwise successful party denied cost latoudis v casey 1990 hca 59 1990 170 clr 534at 544 565 elgindata ltd 2 1992 1 wlr 1207at 1214 1217 cummings v lewis 1993 41 fcr 559at 603 oshlack v richmond river council unreported 1998 hca 11at 58 59 93 reference might also made tore minister immigration ethnic affair ex parte qin 1997 hca 6 1997 186 clr 622where mchugh j 624 said jurisdiction today power order cost discretionary power ordinarily power exercised hearing merit general rule successful party entitled cost 1 success action particular issue fact usually control exercise discretion successful party prima facie entitled cost order 2 hearing merit however court necessarily deprived factor usually determines whether make cost order appropriate case court make order cost even hearing merit moving party longer wish proceed action court cannot try hypothetical action party 3 would burden party cost litigated action settlement extra curial action avoided case however court may able conclude one party acted unreasonably party obtain cost action 4 administrative law matter example may appear defendant acted unreasonably exercising refusing exercise power plaintiff reasonable alternative commence litigation 94 case counsel minister informed court minister seek full cost applicant proceeding minister seek cost appearance court issue cost argued 95 question determined whether said minister acted unreasonably opinion cannot reason 1 minister declined grant extension time unders 207 2 theactbecause legal advice provision ofs 218of theactprecluded whether advice correct position taken minister unreasonable 2 minister never conceded proceeding court way ordernisifor writ ofmandamusand application declaratory relief succeed contrary time minister contention proceeding unnecessary clear position issue could determined substantive action compensation unders 220 b theact 3 assurance given senior assistant state solicitor solicitor applicant point would taken action unders 220 b theact failure make initial claim compensation respect portion land fatal unrelated ordernisifor writ ofmandamusor application declaratory relief 96 result find nothing unreasonable way minister minister legal adviser dealt present proceeding minister time resisted themandamusand declaratory relief proceeding whether right wrong relation interpretation provision theact nothing unreasonable stance taken applicant wish continue themandamusor declaratory relief proceeding instead proceed action unders 220 b theactin knowledge claim compensation made relation aspect land question action could always taken whether minister legal adviser gave undertaking take point matter irrelevant although took minister legal adviser time reach point made concession never required make themandamusand declaratory relief proceeding would resolved 97 circumstance view minister entitled cost cost sought relation proceeding court would order cost taxed

1301877 [2013] MRTA 2745 (18 October 2013).txt

1301877 2013 mrta 2745 18 october 2013 last updated 31 october 20131301877 2013 mrta 2745 18 october 2013 decision recordapplicant mr gurnishan singh mrt case number 1301877diac reference clf2012 251525tribunal member george haddaddate 18 october 2013place decision melbournedecision tribunal remit application student temporary class tu visa reconsideration direction applicant meet following criterion subclass 572 vocational education training visa cl 572 223 2 schedule 2 regulation statement decision reasonsapplication reviewthis application review decision made delegate minister immigration 18 january 2013 refuse grant applicant student temporary class tu visa unders 65of themigration act 1958 act applicant applied department immigration visa 19 december 2012 time lodgement class tu contained number subclass limited exception relevant case subclass granted applicant applies student depends upon type course enrolled offer enrolment principal course corresponding subclass type course specified minister r 1 40a themigration regulation 1994 regulation present case visa refused applicant provide evidence accordance schedule 5a assessment level required cl 572 223 2 schedule 2 regulation theapplicant appeared tribunal 7 october 2013 give evidence present argument tribunal also received oral evidence following reason tribunal concluded matter remitted reconsideration consideration claim evidencein present case applicant currently enrolled advanced diploma management principal course subclass may granted subclass 572 issue present case whether applicant given evidence accordance schedule 5a assessment level exception student guardian visa requirement student visa subclass 572 requirement contained cl 572 223 2 extracted attachment decision meet criterion applicant case must give evidence accordance requirement set schedule 5a regulation highest assessment level applicant broadly speaking requirement relate english language ability financial capacity prescribed matter differ depending upon subclass sought applicant assessment level applicant meet applicable evidentiary requirement schedule 5a assessment level applies applicant highest assessment level time application relevant course study subclass visa r 1 42 assessment level highest assessment level defined r 1 03 assessment level mean level assessment 1 2 3 4 5 specified minister kind passport highest assessment level single course study registered course assessment level course study applicant undertaking 2 registered course study highest assessment level assessment level course excluding elicos course highest number case applicant hold passport india assessment level holder passport subclass 572 subclass applicant principal course assessment level 4 immi 12 005 24 march 2012 evidentiary requirement assessment level subclass 572 set inpart 4of schedule 5a extracted attachment decision applicant provided several document support review including certificate current enrolment advanced diploma management ielts report dated 17 august 2013 applicant achieved overall score 7 5 certificate indicating applicant successfully completed secondary schooling year 12 level equivalent loan amount inr1 800 000 equivalent 34 000 dated 1 october 2013 made applicant sister evidence relationship provided copy secondary school certificate tribunal calculated amount fund required total 23 500 basis applicant given evidence accordance schedule 5a requirement subclass 572 assessment level 4 therefore satisfiesl 572 223 2 given finding appropriate course remit visa application minister consider remaining criterion visa decisionthe tribunal remit application student temporary class tu visa reconsideration direction applicant meet following criterion subclass 572 vocational education training visa cl 572 223 2 schedule 2 regulation george haddad date 18 october 2013memberattachment extract themigration regulation 1994572 223 1 minister satisfied applicant genuine applicant entry stay student minister satisfied applicant intends genuinely stay australia temporarily regard applicant circumstance ii applicant immigration history iii applicant minor intention parent legal guardian spouse applicant iv relevant matter b applicant meet requirement subclause 2 2 applicant meet requirement subclause applicant give minister evidence accordance requirement mentioned schedule 5a highest assessment level applicant b minister satisfied applicant genuine applicant entry stay student regard stated intention applicant comply condition subject visa granted ii relevant matter c minister satisfied applicant hold visa applicant access fund demonstrated declared accordance requirement schedule 5a relating applicant financial capacity clause 5a404 english language proficiency5a404the applicant must give evidence one following applies applicant undertake anelicosbefore commencing principal course ii achieved anielts testthat taken le 2 year date application overall band score least 5 5 b applicant undertake anelicosof 20 week duration commencing principal course ii achieved anielts testthat taken le 2 year date application overall band score least 5 0 c applicant fully funded ii level english language proficiency satisfies proposededucation provider iii applicant undertake anelicosbefore commencing principal course undertake elicos 20 week duration applicant le 2 year date application successfully completed requirement senior secondary certificate education course conducted australia b english ii successfully completed requirement senior secondary certificate education course specified minister instrument writing sub subparagraph b conductedoutside australia c conducted english iii holder student visa successfully completed substantial part course foundation course conducted english b leading qualification australian qualification framework certificate iv level higher iv successfully completed substantial part course specified minister instrument writing sub subparagraph b conductedoutside australia c conducted english leading qualification australian qualification framework certificate iv level higher v successfully completed foundation course conducted australia b english vi successfully completed course foundation study specified minister instrument writing sub subparagraph b conductedoutside australia c conducted english e applicant achieved le 2 year date application required score test specified gazette notice clause5a102 f applicant level english language proficiency satisfies applicant proposededucation provider ii least 5 year study english undertaken 1 following country australia b canada c new zealand south africa e republic ireland f united kingdom g united state america clause 5a405 financial capacity5a405 1 applicant must give accordance clause evidence applicant hasfunds acceptable sourcethat sufficient meet following expense thefirst 24 month course fee ii living cost iii school cost aa declaration applicant stating access tofunds acceptable sourcethat sufficient meetcourse fee living costsandschool costsfor remainder applicant proposed stayin australiaafter thefirst 24 month b evidence applicant fund acceptable source sufficient meettravel cost c evidence regular income individual including applicant providing fund applicant sufficient accumulate level funding provided individual 1a applicant fully funded b applicant funded wholly partly commonwealth government government state territory b government foreign country c multilateral agency ii proposes undertake course study course study together duration le 12 month iii applyingin australia proposed period stay result applicant total period lawful stayin australiabeing le 12 month c subject arrangement thecourse fee living costsandtravel costsfor primary person sfull period assessed primary person alone met provincial state government aforeign country written support government country ii organisation specified minister agazette noticefor paragraph applicant must give evidence applicant access fund sufficient support eachmember applicant family unitwho afamily applicant 2 clause acceptable individualmeans one following applicant b applicant sspouseorde facto partner c applicant sparents applicant grandparent e applicant brother sister f uncle aunt applicant australian citizen anaustralian permanent residentor aneligible new zealand citizen ii usually residentin australia financial support applicant proposededucation provider mean scholarship awarded basis merit open selection process ii awarded student enrolled course leading certificate iv qualification higher qualification iii awarded greater 10 overseas student course intake b 3 overseas student course intake b waiver applicant scourse feescarried following circumstance applicant part exchange program involves formal agreement aneducation providerand education institution aforeign country b reciprocal waiver course fee part agreement ii applicant proposes study full time iii applicant proposed study credited course undertaken applicant applicant shome country fund acceptable sourcemeans one following applicant successfully completed least 75 requirement principal course ii applied visa order complete course iii propose undertake course amoney depositheld acceptable individual aa paragraph apply money deposit anacceptable individualhas held least 3 month immediately date application b financial support applicant proposededucation provider ii commonwealth government government state territory iii government foreign country iv corporation conduct commercial activity outside country based b employ applicant role relation applicant sprincipal courseis direct relevance v multilateral agency vi provincial state government foreign country provided written support government country vii organisation specified minister instrument writing subparagraph viii anacceptable non profit organisation c loan afinancial institutionthat made held name anacceptable individual loan government applicant shome country clause 5a406 requirements5a406 1 applicant must give evidence successfully completed secondary schooling year 12 level equivalent b enrolled avocational education training course ii enrolled course pre requisite vocational education training course vocational education training course iii enrolled course pre requisite vocational education training course offer place vocational education training course 2 clause vocational education training coursemeans vocational education training course lead award qualification australian qualification framework diploma level b lead award qualification australian qualification framework advanced diploma level c course least 1 year duration lead award qualification australian qualification framework certificate iv level

1101463 [2011] MRTA 1969 (26 August 2011).txt

1101463 2011 mrta 1969 26 august 2011 last updated 5 september 20111101463 2011 mrta 1969 26 august 2011 decision recordapplicant mr aaron patrick stranneymrt case number 1101463diac reference clf2011 12951tribunal member ruth cheethamdate 26 august 2011place decision sydneydecision tribunal jurisdiction matter statement decision reasonsapplication reviewthis application review decision made delegate minister immigration citizenship refuse grant applicant employer nomination residence class bw visa unders 65of themigration act 1958 act applicant applied department immigration citizenship employer nomination residence class bw visa 30 june 2010 delegate decided refuse grant visa 3 february 2011 notified applicant decision review right letter dated 3 february 2011 applicant applied tribunal 16 february 2011 review delegate decision since tribunal advised applicant withdrawn application review relevant lawa decision refuse grant employer nomination residence class bw visa unders 65of act mrt reviewable decision covered bys 338 2 ofthe act valid application made unders 347of act review mrt reviewable decision tribunal must review decision unless decision relation minister issued conclusive certificate 348of act however applicant may withdraw application review time determined applicant review withdraws application longer valid application review tribunal circumstance tribunal jurisdiction conduct review szasd v mimia 2004 fmca 472 finding reasonson 11 july 2011 tribunal received submission signed applicant representative stating applicant withdrawing application review granted employer nomination migrant class visa tribunal satisfied circumstance set application review withdrawn accordingly tribunal find longer valid application therefore tribunal jurisdiction review delegate decision decisionthe tribunal jurisdiction matter ruth cheethammember

DPP v Mitchell [2006] VSCA 108 (27 April 2006).txt

dpp v mitchell 2006 vsca 108 27 april 2006 last updated 18 may 2006supreme court victoriacourt appealno 14 2006director public prosecutionsv james mitchell judge buchanan vincent neave jj held melbournedate hearing 27 april 2006date judgment 27 april 2006medium neutral citation 2006 vsca 1082nd revision 18 may 2006 criminal law intentionally causing serious injury intentionally causing injury affray handling stolen good four month youth training centre crown appeal sentence evidence rehabilitation conviction youthful offender sentence manifestly inadequate residual discretion court crown appeal appearance counselsolicitorsfor crownmr gamblemr carisbrooke acting solicitor public prosecutionsfor respondentmr p f tehan q c mr e wraightvictoria legal aid frankstonbuchanan j 1 ask neave j deliver first judgment neave j background2 appeal sentence director public prosecution undercrimes act 1958 567a 3 respondent co offender andrew bougioukos pleaded guilty one count affray 2 count intentionally causing serious injury one count intentionally causing injury one count handling stolen good offence occurred 19 february 2005 respondent first co offender bougioukos several men attacked four male victim late teen two co offender john tekiri anthony nodoulis charged dealt child court 4 respondent group encountered victim group walking railway station yelled abuse victim attacked count affray based violent unprovoked attack fear created event described 5 first count intentionally causing serious injury arose attack victim marcus binge respondent group yelled abuse victim respondent ran binge put head lock binge escaped chased defended respondent co offender member group caught binge repeatedly punched kicked respondent held victim bougioukos nodoulis continued attack attack one said hold arm want mess face victim lost consciousness nodoulis went pocket stole wallet containing 30 mobile phone binge taken hospital attack suffered bite right hand cigarette burn hisleft forearm bruising head including tread mark forehead neck bruise neck suspected fracture right hand split lip bruising back 6 second count intentionally causing serious injury arose attack victim bradley hoare hoare punched face nodoulis fell ground lost glass fell injured wrist attacked heard someone say give wallet phone lost glass know said said 7 victim ran home get help later taken hospital cut abrasion face scratch right forearm hand abrasion left wrist suffered fracture left wrist mr hoare lost 2192 earnings medical expense respondent acted concert member group attack victim 8 count 4 intentionally causing injury related attack victim mitchell westhead victim punched mouth tekiri kicked nodoulis shoulder surrounded five member group armed brick bottle tekiri held stubby threatening manner said give u got give u everything attack michael westhead suffered chipped teeth bruise right arm respondent acted concert member group 9 fifth count handling stolen good arose nodoulis gave respondent bougioukos 5 money stolen binge nodoulis retained binge mobile phone sentencing remarks10 sentencing judge found respondent initiator incident co offender bougioukos follower 1 referred violent cowardly nature attack terrifying effect four victim also noted respondent involved criminal behaviour following offence sentenced eight month youth training also received community based order offence involving dishonesty respondent completed large proportion work hour required order breached order committing offence prior offence respondent sentenced conviction violence 11 honour also referred various mitigating factor respondent 19 year old time attack 20 sentenced lived away home since age 13 little parental supervision respondent employed hospitality industry former employer spoken intelligence potential honesty hard work 12 honour referred psychological report mr ian joblin stated respondent sufficient insight intelligence know want mr joblin report also referred respondent alcohol problem suggested respondent might suffering attention deficit disorder hyperactivity adhd later psychiatric report dr adam deakin expressed reservation diagnosis adhd considered respondent might assisted medication 13 honour said respondent behaviour youth training centre gave rise concern prospect rehabilitation honour noted previous employer respondent worked hospitality trainer salvation army man prepared assist respondent obtain training place hospitality industry 14 respondent sentenced one month count affray four month two count intentionally causing serious injury one month count intentionally causing injury seven day count handling stolen good sentence count served concurrently 15 honour noted authority malmsbury youth training centre consider respondent suitable youth training order nevertheless found would appropriate sentence respondent imprisonment adult prison nature offence respondent age character past history made youth training centre order unders 32of thesentencing act 1991 warned respondent hecould transferred adult prison behave appropriately 2 conclusion16 principle govern crown appeal sentence well established inr v clarke 3 court appeal said appeal sentence crown brought rare exceptional case everettat 299 4 establish point principle reason appeal represent departure traditional standard proper administration criminal justice practical sense contrary deep rooted notion fairness decency underlie common law principle double jeopardy malvasoat 234 5 17 court went discus situation crown appeal would justified included situation sentence reveals manifest inadequacy inconsistency sentencing standard constitute error principle everett 6 300 7 18 indpp v leach 8 eames ja noted director appeal quite common said detract continuing application principle clear rare case manifest inadequacy error director appeal allowed 9 recent case ofdpp v josefski 10 principle inr v clarke 11 affirmed 12 19 pointed many occasion reluctance court appeal allow crown appeal sentence based common law abhorrence double jeopardy kirby p explained inr v hayes 13 true example double jeopardy equivalent prisoner liberty pocket reputation put jeopardy sentencing judge appellate court addition prisoner suffers anxiety stress caused situation uncertainty arising delay resolving position 14 20 counsel dpp mr gamble submitted sentence imposed relation various count presentment well outside range various offence contended sentence imposed individual count total effective sentence manifestly inadequate respondent initiated chain event putting marcus binge headlock gravity attack serious effect offence victim maximum penalty offence required imposition higher sentence individual count submitted learned sentencing judge given inadequate weight need deter individual attacking member community going normal business honour also given weight need deter respondent committing act violence 21 finally mr gamble submitted sentencing judge placed much weight mitigating factor particular respondent youth prospect rehabilitation 22 view crown establish sentence imposed individual count manifestly inadequate demonstrate error principle occurred respondent behaviour attacking marcus binge participating fight member group would normally called severe sentence however learned sentencing judge entitled exercise leniency exercising sentencing discretion give respondent chance improve behaviour become useful member community 23 case ofr v osenkowski 15 king cj recognised important prosecution appeal allowed circumscribe unduly sentencing discretion judge must always place exercise mercy judge sympathy reasonably excited circumstance case must always place leniency traditionally extended even offender bad record judge form view almost intuitively case experienced judge leniency particular stage offender life might lead reform 16 24 similarly indpp v leach 17 eames ja commented particularly important court devalue deny right sentencing judge act mercifully case seems judge instance opportunity reformation offender ought grasped may decision redounds much benefit thecommunity 18 25 even regard sentence manifestly inadequate court exercise discretion decline interfere sentence director sappeal 19 circumstance case strong objection exposing respondent situation equivalent double jeopardy respondent already completed sentence offence sentenced would serve least part sentence adult prison also taken account respondent favourable youth parole report change living circumstance fact undertaking apprenticeship received good reference employer 26 would therefore dismiss appeal buchanan j 27 agree vincent j 28 conduct respondent clearly kind could ordinarily anticipated result imposition sentence significantly severe handed case apparent perusal remark sentencing judge addressing honour appreciated equally apparent particular circumstance judge considered interest respondent community would best served adoption course rather one designed maximise respondent prospect successful rehabilitation avoid potential damage prospect likely result incarceration adult prison far persuaded assessment position constituted error amcomforted view knowledge considerable stride respondent made since order made 29 would dismiss appeal buchanan j 30 formal order court appeal dismissed certificate granted respondent unders 15 1 theappeal cost act1998

SZHGL v Minister for Immigration & Multicultural Affairs [2006] FCA 1739 (20 November 2006).txt

szhgl v minister immigration multicultural affair 2006 fca 1739 20 november 2006 last updated 20 december 2006federal court australiaszhgl v minister immigration multicultural affair 2006 fca 1739szhgl v minister immigration multicultural affair anornsd 1009 2006rares j20 november 2006sydneyin federal court australianew south wale district registrynsd 1009 2006on appeal federal magistrate court australiabetween szhglappellantand minister immigration multicultural affairsfirst respondentrefugee review tribunalsecond respondentjudge rares jdate order 20 november 2006where made sydneythe court order 1 refugee review tribunal added second respondent appeal 2 appeal dismissed cost fixed sum 2 800 note settlement entry order dealt order 36 federal court rule federal court australianew south wale district registrynsd 1009 2006on appeal federal magistrate court australiabetween szhglappellantand minister immigration multicultural affairsfirst respondentrefugee review tribunalsecond respondentjudge rares jdate 20 november 2006place sydneyreasons judgment revised transcript 1 appeal decision federal magistrate court szhgl v minister immigration 2006 fmca 776 appellant husband applicant appeal listed hearing tomorrow szhgk v minister immigration 2006 fmca 770 appellant national people republic china arrived australia 1 april 2002 14 may 2002 lodged application protection visa 5 july 2002 delegate minister refused grant protection visa applied refugee review tribunal review decision 2 application review appellant nominated authorised recipient correspondence tribunal orchard sit feng hing pty limited assume migration agent tribunal wrote orchard sit feng hing pty limited appellant inviting appellant hearing 7 july 2003 response sent indicating appellant wished attend hearing tribunal nominated date however 7 july 2003 appellant appear hearing told trial judge repeated migration agent informed hearing 3 tribunal proceeded make decision without benefit evidence appellant non attendance reaching decision affirm decision grant protection visa tribunal said unfortunately appellant claim supported evidence even supported evidence could give circumstance surprising appellant claim member shouter religious group china persecuted result membership accepted tribunal 4 tribunal accept appellant involved smuggling bible fled china avoid harm found satisfied appellant well founded fear persecution china therefore refused application protection visa 5 appellant advanced notice appeal essentially two substantial reason trial judge allowed application review tribunal decision first said requirement ofss 425and426of themigration act 1958 cth way properly considered tribunal made jurisdictional error proceeding determine application 6 secondly said tribunal erred failing organise joint hearing wife application 7 fact person applied claim decided decision maker able personally seek persuade decision maker frustrating person concerned appellant understandably feel sense grievance able put case migration agent failed inform hearing tribunal appellant appear understand fluency english language letter inviting hearing sent address may understood 8 however scheme act provides in 425 1 tribunal must invite applicant appear give evidence present argument relating issue arising relation decision review section 425arequires applicant given notice writing day time place scheduled appear method specified in 441a case tribunal notified appellant writing pre paid post address service provided orchard sit feng hing pty limited accordance withs 441a 4 c ii result 441c 4 provides appellant taken deemed received notice seven working day date invitation hearing letter 23 may 2003 9 fairness tribunal know difficulty appellant receiving notice hearing received response invitation hearing indicating wished appear 7 july 2003 tribunal therefore faced position sent letter received reply appellant wished attend hearing appear tribunal position entitled unders 426a 1 make decision review without taking action allow enable appear 10 able detect basis could suggested tribunal fell jurisdictional error circumstance arising proceeding decide application appellant appear hearing scheduled honour said difficult infer appellant also received actual notice invitation aware wife earlier hearing occurred 20 june 2003 since received letter exactly term date addressed inviting hearing 11 affidavit appellant swore federal magistrate court said migration agent allow attend hearing tribunal honour found difficult infer failure attend deliberate decision part arrived upon advice agent consider necessary explore evidence inviting give evidence witness box sure one draw adverse inference appellant evidence sought tested cross examination ought accepted however application act assistance appellant case 12 scheme operation ofss 425 425a 441aand441cwas explained term set consistently two full court invnaa v minister immigration multicultural indigenous affair 2004 fcafc 134 2004 136 fcr 407at 413 414 14 15 per sundberg hely jj gyles j agreed 417 30 majority decision inminister immigration multicultural affair v szfde 2006 fcafc 142at 135 per allsop j 231 per graham j circumstance unable see jurisdictional error tribunal proceeding determine appellant claim failed attend hearing 13 subsidiary argument made appellant appeared tribunal ought exercised discretion unders 426a 2 schedule appellant appearance able see basis upon tribunal could taken made error failing schedule appearance circumstance confronted 14 second substantive argument tribunal arranged joint hearing appellant wife application however request joint hearing separate application filed appellant wife tribunal circumstance difficult see tribunal made error joining two proceeding together requirement act two matter heard together able ascertain basis upon could said tribunal erred failing hear two together circumstance 15for reason opinion federal magistrate decision discloses error appeal dismissed cost fixed sum 2 800 certify preceding fifteen 15 numbered paragraph true copy reason judgment herein honourable justice rares associate dated 13 december 2006appellant personcounsel respondent mr izzosolicitor respondent spark helmoredate hearing 20 november 2006date judgment 20 november 2006

Gemono Pty Ltd v Sarah Alexandra Dougan [2012] NSWSC 152 (28 February 2012).txt

gemono pty ltd v sarah alexandra dougan 2012 nswsc 152 28 february 2012 gemono pty ltd v sarah alexandra dougan 2012 nswsc 152 28 february 2012 last updated 6 march 2012supreme courtnew south walescase title gemono pty ltd v sarah alexandra douganmedium neutral citation 2012 nswsc 152hearing date 28 february 2012decision date 28 february 2012jurisdiction common lawbefore grove ajdecision judgment plaintiff second defendant varney lee magill sum 2 708 921 69 declare second defendant liable plaintiff cost interest cost pursuant contractual arrangement manifest deed entered catchword legislation cited case cited text cited category procedural rulingsparties gemono pty ltd acn 104 956 336 plaintiffsarah alexandra dougan first defendantvarney lee magill second defendantrepresentation counsel j sullivan plaintiff solicitor leon ratner associate plaintifffile number 2011 160090publication restriction judgmenthis honour plaintiff seek judgment guarantor loan made plaintiff first defendant evidence show first defendant third defendant bankrupt administration respectively judgment sought personal guarantor loan second defendant guarantor appeared today although defence filed behalf exhibit 1 show email solicitor filed defence behalf advising client seek rely defence intends appear today indicated appeared circumstance leave granted plaintiff proceed ex parte evidence manifest affidavit david rothwell sworn 11 october 2011 circumstance need extremely detailed describing event led hearing today originally loan made borrower 2 2 million dollar period time sum 2 million dollar paid nothing towards interest payable loan subsequently obviously following negotiation party two deed entered first deed entered plaintiff bankrupt first defendant significantly second deed entered 31st october 2009 executed guarantor addition party deed title describes guarantor trustee patterson street unit trust reference trust documentation plain term various document second defendant guarantor signed became liable personal capacity significantly paragraph statement claim pleads lender borrower say plaintiff first defendant first guarantor second defendant judgment sought executed deed reference pleading execution capacity trustee defence filed reference made solicitor email admission pleading paragraph mentioned situation briefly entirety original principal loan never repaid interest accruing rapid rate year passed since although evidence apparent infer loan taken likely bridging loan expected required limited time therefore happen payment made respect loan ultimate indebtedness become considerable calculation made relation cumulating outstanding debt addition pursuant agreement guarantor liable indemnify cost payable respect solicitor acting plaintiff together interest cost although indebtedness today crystallised cost crystallised application made make declaration plaintiff entitlement absence contest see declaration made accordingly regard schedule interest exhibited affidavit mr rothwell various agreement therein direct judgment plaintiff second defendant varney lee magill sum 2 708 921 69 declare second defendant liable plaintiff cost interest cost pursuant contractual arrangement manifest deed entered

Industrial Relations Commission Decision 29_1988 [1988] AIRC 443; (23 June 1988).txt

industrial relation commission decision 29 1988 1988 airc 443 23 june 1988 industrial relation commission decision 29 1988 conciliation arbitration act 1904 139 application consent change name primary industry industrial association western australia r 55 1988 john mcmahon industrial registrar melbourne 23 june 1988 employer organization change name change made accordance relevant procedure laid rule organization concent granted decision 28 march 1988 application filed primary industry industrial association western australia consent change name notice receipt application published commonwealth australia gazette gn17 dated 18 may 1988 notice objection application satisfied change name made accordance relevant procedure laid rule applicant organization consent change applicant organization name western australian farmer federation industrial association change entered register organization certificate registration made available office industrial registrar certificate

Industrial Relations Commission Decision 496_1990 [1990] AIRC 670; (12 July 1990).txt

industrial relation commission decision 496 1990 1990 airc 670 12 july 1990 industrial relation commission decision 496 1990 t007 dec 496 90 v print j2715 australian industrial relation commissionindustrial relation act 1988s 33and 111 1 b action commission motion c 31780 1990 115application certification agreement port phillip topmaking pty ltd c 30396 1990 textile industry award 1981 1 odn c no 03103 1976 37412 1989 textile worker textile industry commissioner oldmeadow melbourne 12 july 1990 condition employment new award motion matter originally concerned application unders 115industrial relation act 1988 commission concerned agreement may satisfy principle suggested party seek make award unders 112 party pursued 112application subsequently withdrew consent company found position operating employing people previously agreed set condition different provided textile industry award company respondent proposed term condition plant least stage appropriate plant consistent general standard industry award made motion provide condition employment applied since 18 april 1990 decision matter concern application port phillip topmaking pty ltd company certification asection 115agreement amalgamated footwear textile worker union australia union matter first came 30 march 1990 hearing party tendered copy proposedsection 115agreement agreement intended substantially regulate term condition employment textile worker newly established port phillip topmaking plant plant expected commence operation 17 april 1990 party advised proposed agreement would referred honour president justice maddern matter subsequently referred back 11 april 1990 president indicated opinion matter need dealt full bench commission party immediately advised president decision however party indicated wish matter brought back immediately request party matter subsequently dealt series conference _______________________________________________________________________________ 1 print d0358 t007 1976 182 car 297 title change print f0237 1982 280 car 570 t007 v028 following conference 10 may 1990 following edited statement made transcript previously indicated party conference 1 may would testing proposedsection 115agreement national wage case decision august 1989 print h9100 given principle decision proposed base rate exhibit t3 clause 8 cause concern since establishment rate fact subject another matter yet finalised commission event even issue appropriate rate pay open resolution appears conference may party able satisfy principle national wage case bench 1989 respect agreement still open party take avenue consider desirable making minimum rate consent award undersection 112of theindustrial relation act party wish take course action required argue merit term award accordance appropriate principle commission regard direct attention august 1989 national wage case decision principle general particular first award extension existing award principle page 26 decision national wage bench party subsequently decided pursue asection 112consent award matter listed order hear merit thesection 112application end hearing reserved decision day hour conclusion hearing facsimile received union indicating decided withdraw consent respect thesection 112application view development matter relisted order party advise state matter result hearing party advised would proceed thesection 112matter since consent withdrawn decision order issued consequence event company find position since 18 april 1990 operating employing people previously set condition agreed company union different provided textile industry award 1981 company respondent company operating condition full knowledge agreement union substantially structured operation employed person basis benefit numerous conference hearing going merit term condition sought thesection 115and subsequentsection 112application satisfied proposed term condition plant least stage appropriate operation plant consistent general standard industry indicated transcript 1 june 1990 view extraordinary unique circumstance matter decided motion make award company provide condition employment rate pay plant applied since 18 april set exhibit t3 award operate period one year rate pay take account first second stage structural efficiency adjustment express hope year party new award able resolve difference consider future nature award coverage employee company award issued due course order operate 18 april 1990 remain force period one year appearance mccrindle logozzo amalgamated footwear textile worker union australia g mitchell tome port phillip topmaking pty ltd date place hearing 1990 melbourne march 30 may 1 10 15 june 1 end text end text

Konecranes and Demag Pty Ltd T_A Konecranes [2021] FWCA 6683 (12 November 2021).txt

konecranes demag pty ltd konecranes 2021 fwca 6683 12 november 2021 last updated 15 november 2021 2021 fwca 6683fair work commissiondecisionfair work act 2009s 185 application approval single enterprise agreementkonecranes demag pty ltd konecranes ag2021 8007 konecranes demag pty ltd north west service branch enterprise agreement 2021manufacturing associated industriesdeputy president beaumontperth 12 november 2021application approval konecranes demag pty ltd north west service branch enterprise agreement 2021 1 konecranes demag pty ltd konecranes made application approval enterprise agreement known thekonecranes demag pty ltd north west service branch enterprise agreement 2021 theagreement application made unders 185of thefair work act 2009 cth theact agreement single enterprise agreement 2 applicant provided written undertaking copy undertaking attached annexure satisfied undertaking cause financial detriment employee covered agreement undertaking result substantial change agreement 3 compliance withs 190 4 act bargaining representative view regarding undertaking proffered sought provided opportunity raise address objection undertaking proffered applicant objection raised 4 subject undertaking referred basis material contained application accompanying declaration satisfied requirement ofss 186 187 188 and190as relevant application approval met 5 communication electrical electronic energy information postal plumbing allied service union australia theorganisation bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 based declaration provided organisation note organisation covered agreement 6 agreement approved 12 november 2021 accordance withs 54 operate 19 november 2021 nominal expiry date agreement 31 august 2025 deputy presidentprinted authority commonwealth government printer ae513873pr735764 annexure

Purvis and Ors and Dairy Adjustment Authority [2005] AATA 233 (18 March 2005).txt

purvis or dairy adjustment authority 2005 aata 233 18 march 2005 last updated 12 april 2007catchwords supplementary dairy adjustment scheme whether entitled discretionary payment right whether change atypical feature management dairy farm enterprise whether entity choice change processor change management whether change significantly adversely affected entity eligibility payment right whether scheme gave preference one state part thereof another state part thereof contrary 99 constitution decision affirmed constitutional law operation effect commonwealth constitution whether scheme discriminates state part thereof whether discrimination arises result particular circumstance individual decision affirmed statutory interpretation whether evidence may given regarding interpretation statute whether evidence may given regarding limit discretion given statute whether evidence may given regarding agency policy act interpretation act 1901ss 15 15a 15aband46commonwealth australia constitution act s 51 99dairy industry act 1992 sa dairy produce act 1986s 125a schedule 2 cll 1 2 3 5 6 7dairy produce levy act 1 act 1986dairy structural adjustment program scheme 2000 s 3 9 10 24 30 31primary industry excise levy act 1999supplementary dairy assistance scheme 2001ss 3 1 3 2 8 1 8 2 8 2a 8 3 8 4 8 5 b 8 7 13 1 16 17 18 20 27 28 andpart 5alexandra private geriatric hospital v blewett 1984 2 fcr 368 56 alr 265bank new south wale v commonwealth 1948 hca 7 1948 76 clr 1chevron usa inc v natural resource defense council inc 1984 ussc 140 1984 467 u 837cic insurance ltd v bankstown football club ltd 1997 187 clr 384 141 alr 618coal allied operation pty limited v australian industrial relation commission others 2000 hca 47 2000 203 clr 194colonial sugar refining co ltd v irving 1903 st r qd 261colonial sugar refining co ltd v irving 1906 ac 360commissioner taxation v clyne 1958 hca 10 1958 100 clr 246commissioner taxation v murray 1990 fca 69 1990 21 fcr 436 92 alr 671cooper brooke wollongong pty ltd v federal commissioner taxation 1981 hca 26 1981 147 clr 297corporation city enfield v development assessment commission 2000 hca 5 2000 199 clr 135davies jones v western australia 1904 hca 46 1904 2 clr 29drake v minister immigration ethnic affair 1979 24 alr 577 2 ald 60elliott v commonwealth 1936 hca 7 1936 54 clr 657ferguson v federal commissioner taxation 1979 fca 29 1979 79 atc 4 261minister aboriginal affair v peko wallsend limited 1986 hca 40 1986 162 clr 24morgan v commonwealth 1947 hca 6 1947 74 clr 421nassif v minister immigration multicultural indigenous affair 2003 fca 481 2003 129 fcr 448permanent trustee australia ltd v commissioner state revenue 2004 hca 53 2004 79 aljr 146r v barger commonwealth v mckay 1908 hca 43 1908 6 clr 41r v palmer 1981 1 nswlr 209redfern v dunlop rubber australia ltd 1964 hca 9 1964 110 clr 194re adam tax agent board 1976 1 ald 251re australian industrial relation commission ex parte australian transport officer federation 1990 hca 52 1990 171 clr 216re buchan dairy adjustment authority 2002 aata 644 2001 71 ald 114re drake minister immigration ethnic affair 2 1979 aata 179 1979 2 ald 634re jonsson marine council 2 1990 aata 192 1990 12 aar 323re mynard dairy adjustment authority 2004 aata 940re vulcan australia pty ltd comptroller general custom dimplex australia pty ltd party joined 1994 34 ald 773tcn channel nine pty ltd v australian mutual provident society 1982 fca 169 1982 42 alr 496wacando v commonwealth 1981 hca 60 1981 148 clr 1 37 alr 317decision reason decision 2005 aata 233administrative appeal tribunal s2002 339general administrative division ronald purvisapplicantand dairy adjustment authorityrespondents2002 340re kaylene purvisapplicantand dairy adjustment authorityrespondents2003 250re rodger clarkapplicantand dairy adjustment authorityrespondents2003 251re neville telfordapplicantand dairy adjustment authorityrespondentdecisiontribunal deputy president forgiedate 18 march 2005place adelaidedecision tribunal decides relation application mr ronald purvis affirm decision respondent dated 20 august 2002 relation application mr kaylene purvis affirm decision respondent dated 20 august 2002 relation application mr rodger clark affirm decision respondent dated 19 may 2003 andin relation application mr neville telford affirm decision respondent dated 19 may 2003 forgiedeputy presidentreasons decisionmr mr purvis mr clark mr telford dairy farmer south east south australia south east 2000 received payment south australian market milk equalisation scheme samme scheme scheme intended ensure proceeds sale market milk south australia shared equitably amongst producer delivered milk processor party samme scheme deregulation dairy industry samme scheme came end mr mr purvis mr clark mr telford granted standard payment right thedairy structural adjustment program scheme 2000 dsap scheme later applied discretionary payment right thesupplementary dairy assistance scheme 2001 sda scheme dairy adjustment authority daa decided held interest dairy farm enterprise required bys 8 2 sda scheme qualifying period well 6 30pm 28 september 1999 also decided however change atypical feature management enterprise held within meaning ofs 8 5 iii sda scheme even change management daa decided would exercised discretion grant payment right decided daa final decision grant sda payment correct case 2 hearing mr morcombe qc mr tokley counsel represented mr mr purvis mr clark mr telford daa represented mr almond qc mr pizer counsel document lodged according requirement ofs 37of theadministrative appeal tribunal act 1975 document case admitted evidence together number document regard referred number reason oral evidence given applicant together mr valerie monaghan rural financial counsellor mr ian conrad chartered accountant former company secretary south australian market milk equalisation company limited dr john patrick drinan consultant farmer mr stephen john rice chief executive officer dairy authority south australia mr gregory james gilbert farm service manager australian co operative food ltd dairy vale food ltd subsidiary mr samuel charles acheson consultant dairy industry issues3 issue case 1 whether within meaning ofs 8 5 sda scheme 28 september 1999 change atypical feature ownership management enterprise undertaken case mr mr purvis mr clark whether changing processor change management dairy enterprise b case mr telford whether unable select processor produced uht flavoured milk whether constituted change atypical feature management dairy enterprise 2 whether change atypical feature significantly adversely affected face value payment right dsap scheme 3 whether given discretionarys 8 5 sda scheme note none applicant pursued one original argument effect introduction samme scheme 1 july 1995 constituted change atypical feature management enterprise within meaning ofs 8 5 legislative schemean outline dairy industry adjustment program4 1 july 2000 dairy industry deregulated dairy industry adjustment package package developed assist dairy industry adjust deregulation thedairy produce act 1986 act provides one element package element dairy industry adjustment program program provides element program set inschedule 2of act 125a clause 1ofschedule 2sets simplified outline schedule andpart 9cof thefarm household support act 1992provide framework implementation dairy industry adjustment program main object dairy industry adjustment program help dairy industry dairy community adjust deregulation providing 4 type grant follows dsap payment made schedule b sda payment made schedule c dairy exit payment made underpart 9cof thefarm household support act 1992 payment dairy regional assistance programme see cl 86 generally dsap payment calculated reference 1998 1999 milk delivery rate 46 23 cent per litre market milk national average rate 8 96 cent per litre manufacturing milk dairy exit payment available farmer choose leave agriculture dairy adjustment authority administer dsap payment right dairy industry adjustment program funded dairy adjustment levy milk product levy paid dairy structural adjustment fund dsap payment sda payment dairy exit payment paid fund outline dsap scheme5 dsap payment payment dsap scheme program cl 2 dsap scheme scheme formulated writing minister grant payment right entity holding eligible interest dairy farm enterprise 6 30pm 28 september 1999 satisfying objective set outcll 12 23of program dsap scheme program cll 10 and11 payment dsap scheme6 dsap scheme came operation 14 april 2000 suggestion case appropriately formulated minister consistent policy objective set act dsap scheme establishes three type payment right standard payment right exceptional event supplementary payment right anomalous circumstance payment right dsap scheme s 9to11and see also program cl 12 2 one standard payment right relevant case 7 basic eligibility criterion standard payment right entity eligible granted standard payment right respect dairy farm enterprise entity held eligible interest dairy farm enterprise 6 30pm 28 september 1999 b enterprise delivered milk base year dsap scheme 9 dsap scheme entity 8 payment right conferred entity entity defined broad term include individual body corporate body politic trustee particular trust estate person may act number different capacity regarded entity program cll 2and5 individual mr purvis mr purvis mr clark mr telford entity dsap scheme dairy farm enterprise 9 payment right respect dairy farm enterprise expression defined dsap scheme defined incl 2of program program found inschedule 2of act form part act dsap scheme formulated undercl 10ofschedule 2of act suggestion dsap scheme meaning given expression act given meaning act interpretation act 1901 ai act 46 clause 2of program defines expression dairy farm enterprise business australia delivers market milk manufacturing milk program cll 2and6 dsap scheme eligible interest 10 entity must hold eligible interest dairy farm enterprise party eligible dairy share farming arrangement eligible dairy leasing arrangement carrying enterprise program cl 7 third relevant case entity carrying enterprise 11 clause 6 4 program provides purpose continuity business dairy farm enterprise affected change identity entity entity carry business enterprise b change ownership business enterprise dsap scheme manufacturing milk market milk 12 returning definition dairy farm enterprise business must deliver market milk manufacturing milk term manufacturing milk defined mean far relates producer relevant dairy produce delivered producer manufacturer month ending 1 july 2000 respect domestic market support payment paid section 108a force conversion time program cl 2 expression market milkmeans milk levy imposed whichever following applicable paragraph 5 1 repealeddairy produce levy act 1 1986and paragraph 6 1 theprimary industry excise levy act 1999 program cl 2 base year reference made financial year beginning 1 july 1998 program cl 3 dsap scheme calculation payment right13 face value entity right calculated accordance withpart 4of dsap scheme method calculating face value standard payment right varies according whether dairy farm enterprise subject share farming arrangement leasing arrangement neither dsap scheme s 21to24 case dairy farm enterprise subject either share farming arrangement leasing arrangement one entity eligible interest dairy farm enterprise face value standard payment right equal overall enterprise amount dsap scheme 21 2 dsap scheme market pool distributions14 clause 31of program provides dsap scheme may make provision relation adjustment eligibility payment right relation distribution taken abnormal market milk pool distribution provision may include limited treating particular dairy farm enterprise purpose part scheme enterprise delivered particular volume market milk particular financial year instead particular volume manufacturing milk b treating particular dairy farm enterprise purpose part scheme enterprise delivered particular volume manufacturing milk particular financial year instead particular volume market milk program cl 31 2 15 original form 30of dsap scheme provided 1 section applies base year 1 dairy farm enterprise pooling jurisdiction receive payment market milk rate proportion milk delivery dairy farm enterprise jurisdiction 2 however section apply dairy farm south australia bound voluntary price equalisation scheme known south australian market milk equalisation agreement approved section 26 thedairy industry act 1992of south australia b dairy farm enterprise victoria deliver milk authorised agent within meaning section 49 thedairy industry act 1992of victoria 3 section applies daa must determine dairy farm enterprise relation 1 claim payment right received amount market milk enterprise would delivered received payment market milk rate proportion eligible milk delivery base year dairy farm enterprise jurisdiction b amount manufacturing milk enterprise would delivered received payment market milk rate proportion eligible milk delivery base year dairy farm enterprise jurisdiction 4 sum amount market milk manufacturing milk daa determines enterprise would delivered base year must equal amount milk enterprise actually delivered year 5 scheme enterprise taken delivered base year amount market milk amount manufacturing milk determined subsection 3 6 section eligible milk deliveriesmeans delivery milk satisfies requirement market milk law state territory milk delivered pooling jurisdictionmeans state territory enterprise required hold quota deliver market milk base year 16 minister amendeds 30of dsap scheme effect 17 august 2000 made thedairy structural adjustment program scheme 2000 amendment 3 addeds 30 3a amendeds 30 4 read 3a subsection 3 count amount milk delivery market milk covered state pooling arrangement embodied operated voluntary price equalisation scheme known south australian market milk equalisation agreement approved section 26 thedairy industry act 1992of south australia b thedairy industry act 1992of victoria c thedairy industry act 1994of tasmania notedeliveries market milk covered state pooling arrangement dealt provision scheme 4 sum amount market milk manufacturing milk daa determines enterprise would delivered base year together milk counted subsection 3a must equal amount milk enterprise actually delivered year sda scheme sda payment rights17 sda scheme concerned conferring three type payment right collectively known sda payment right program cl 2 basic market milk payment right additional market milk payment right anddiscretionary payment right 18 although described right entitlement confer aright payment sda scheme payment lie within discretion theminister delegate fors 13 1 sda scheme provides time commencement scheme minister may decide entity eligible discretionary payment right b minister decides entity eligible whether grant right ii minister decides grant right face value right time right granted sda scheme eligibility discretionary payment right19 order eligible discretionary payment right circumstance case entity must satisfy requirement ofs 8 1 far relevant case entity eligible discretionary payment right provision entity held interest kind mentioned subsection 2 dairy farm enterprise time qualifying period b either entity taken affected significant event significant crisis subsection 3 ii entity taken affected significant anomalous circumstance subsection 5 20 kind interest referred in 8 1 relevant case b entity granted payment right dsap scheme ii iii proprietary interest land milking shed situated iv interest owner dairy farm enterprise c interest party binding contract binding arrangement entity would end qualifying period entitled hold interest dairy farm enterprise described paragraph b sda scheme 8 2 also noted contract arrangement conferring option similar right contract arrangement purpose paragraph 2 c unless entity exercised option right acquired interest end period 6 30 pm 28 september 1999 circumstance reasonable sda scheme 8 2a 21 entity must held interest dairy farm enterprise unless contrary intention appears word used sda scheme meaning purpose dsap scheme sda scheme 3 1 given dsap scheme meaning relation dairy farm enterprise apparent froms 8 7 sda scheme continues meaning also extended meaning dairy farm enterpriseincludes business australia carried view delivering market milk manufacturing milk qualifying period deliver milk period qualifying period defined period 1 july 1998 6 30pm 28 september 1999 sda scheme 3 2 22 section 8 3 sda scheme concerned circumstance entity taken affected significant event significant crisis provides 3 entity taken affected significant event significant crisis subsection entity held interest dairy farm enterprise 6 30 pm 28 september 1999 b event crisis illness person detrimental effect management dairy farm enterprise mentioned paragraph ii person incapacity work due injury effect iii person death effect iv disease death 1 dairy animal kept enterprise mentioned paragraph detrimental effect production delivery milk 1998 1999 financial year v exceptional event c significant reduction volume milk delivered dairy farm enterprise mentioned paragraph base year compared enterprise normal year volume milk minister satisfied reduction attributable event crisis 23 exceptional event defined mean relation dairy farm enterprise drought storm flood natural event disease suffered livestock dsap scheme 3and sda scheme 3 1 24 purpose ofs 8 3 c 8 4 sda scheme provides 4 purpose paragraph 3 c without limiting paragraph volume milk delivered enterprise base year le 70 enterprise normal year volume milk reduction may taken significant enterprise normal year volume milk defined average total number litre market milk manufacturing milk delivered enterprise 3 financial year immediately base year b volume worked paragraph opinion daa fairly represent normal year delivery enterprise volume milk daa opinion fairly represent normal year delivery enterprise sda scheme 8 7 base year financial year beginning 1 july 1998 dsap scheme 3 25 section 8 5 sda scheme concerned circumstance entity taken affected significant anomalous circumstance provides entity taken affected significant anomalous circumstance subsection following apply entity held interest dairy farm enterprise 6 30 pm 28 september 1999 ii 28 september 1999 change atypical feature ownership management enterprise iii minister determines change feature significantly adversely affected entity eligibility payment right dsap scheme significantly adversely affected face value payment right iv minister determines subsection apply entity b following apply entity held interest dairy farm enterprise shortly 28 september 1999 assigned interest another person date ii entity date hold interest dairy farm enterprise except mentioned subparagraph iii iii 6 30 pm 28 september 1999 entity party binding contract binding arrangement would date entitled hold interest dairy farm enterprise iv minister determines subsection apply entity c following apply entity held interest kind mentioned paragraph 2 b 2 c dairy farm enterprise shortly 28 september 1999 ii shortly 28 september 1999 entity held interest dairy farm enterprise mentioned paragraph 2 c whether entity held interest another dairy farm enterprise time iv minister determines subsection apply entity sda scheme face value discretionary payment rights26 entity granted discretionary payment right unders 8 face value right amount determined minister unders 16 determining amount minister must regard matter set in 16 2 cap amount may determined cap calculated accordance withs 17of sda scheme sda scheme sda unit sda payment rights27 sda payment right consists sda unit number unit calculated dividing face value payment right 32 resulting figure rounded nearest dollar represents number sda unit sda payment right sda scheme 18 detail sda unit entered register maintained daa sda scheme 20 sda unit may transferred cancelled varied accordance provision ofpart 5of sda scheme 28 australian dairy corporation must pay 1 registered owner sda unit respect quarter sda payment right granted entity earlier following quarter sda scheme 28 1 2 quarter must earlier 1 july 2000 later 30 june 2008 sda scheme 27 entity additional market milk right basic market milk payment right may elect receive lump sum provided elect receiving first payment respect sda unit sda scheme 28 3 right receive lump sum payment respect discretionary payment right backgroundthe samme scheme29 basis evidence mr rice find 1995 three processor kraft food pty ltd kraft dairy vale food ltd dairy vale national dairy sa ltd national dairy entered agreement south australian dairy farmer association inc sadf association south australian market milk equalisation committee limited company agreement known south australian market milk equalisation agreement sammea remained force de regulation dairy industry 2000 30 clause 2 sammea established state wide market milk equalisation scheme known samme scheme south australian minister agriculture approved samme scheme authorised price equalisation scheme 30 june 1995 unders 26 1 thedairy industry act 1992 sa di act force statewide scheme whose purpose ensure proceeds sale market milk south australia shared equitably amongst producer delivered milk processor party samme scheme 31 producer defined mean person organisation company co operative licensed di act dairy farmer supplying milk processor co operative sammea cl 1 company could also determine dairy farmer state south australia could brought samme scheme 32 milk defined mean bovine milk produced producer processed south australia well meeting quality prescribed annexure c sammea sammea distinguished market milk manufacturing milk manufacturing milk defined mean milk processed product market milk including without limitation milk processed uht milk flavoured milk uht milk flavoured milk also known non white milk sammea cl 1 market milk meaning di act excludes milk processed uht flavoured milk milk purchased directly indirectly person producer co operative sammea cl 1 33 cl 3 1 sammea processor paid company farm gate price litre market milk sold preceding month farm gate price farm gate price set minister agriculture di act sammea cl 1 company deducted administration fee amount paid processor sammea cl 3 2 using annexure b sammea required cl 3 3 company calculated market milk percentage month dividing total volume market milk litre sold processor previous month total volume milk litre purchased processor month market milk rate month calculated dividing amount received company cl 3 1 figure reached multiplying market milk percentage total kilogram protein total volume milk purchased processor producer company also calculated freight adjusted market milk using annexure e sammea cl 3 5 freight adjusted market milk set four region including south east south australia divided 34 month samme scheme operated company paid processor freight adjusted market milk rate preceding month basis total kilogram protein milk supplied processor producer co operative region preceding month equal market milk percentage month sammea cl 3 5 35 mr conrad accountant partner firm providing accounting service company also company secretary evidence adjustment made processor uncontradicted accept therefore find 16 processor sell higher market milk state average processor sell lower market milk state average processor sell market milk pursuant clause 5 sammea processor contributed state average market milk required compensated processor contributed le state average market milk month processor contributed higher market milk state average receiving processor entitled receive milk volume entitlement processor contributed lower market milk state average supplying processor situation supplying processor milk volume liability settle receiving processor following order 18 1 first physically transferring thatmilk volume liability occurred rarely or18 2 secondly negotiated basis or18 3 thirdly use fall back method adjustment based supplying processor manufacturing milk price provided clause 5 5 5 7 agreement receiving processor milk volume entitlement payment supplying processor receiving processor made supplying processor basic manufacture milk price monthly basis addition payment basic manufacture milk price supplying processor also required account additional manufacturing milk payment seasonal production bonus payment quality end financial year collated manufacturing milk price paid including additional payment processor preceding year prepared spreadsheet setting processor manufacturing milk price average manufacturing milk price paid processor copy spreadsheet sent processor given opportunity confirm check calculation based calculation prepared overall manufacturing price paid supplying processor le average processor overall manufacturing price paid producer preceding year supplying processor required pay underpayment receiving processor exhibit h 36 1997 sammea amended time kraft ceased party agreement following processor became party addition national dairy dairy vale warrnambool cheese butter factory company holding ltd warrnambool murray goulburn co operative co limited murray goulburn de cicco industry pty ltd de cicco industry refer three additional party collectively victorian processor sadf association company continued party well dairy farmer party sammea time definition milk amended delete requirement processed south australia 37 financial year ending 30 june 1999 south australian producer delivered milk processor party sammea sammea processor producer deliver milk sammea processor could divided two group first delivering milk used production non white milk sale domestic market uht producer group second delivered milk non white milk sale domestic market non uht producer group financial year ending 30 june 1999 producer delivering milk sammea processor approximately 19 milk paid samme scheme market milk rate additional payment dairy produce levy act 1 act 1986and theprimary industry excise levy act 199938 thedairy produce levy act 1 act 1986and theprimary industry excise levy act 1999were administered australian dairy corporation farmer paid monthly levy volume drinking milk supplied processor drinking milk term used describe market milk uht flavoured milk basis dr drinan evidence find market milk levy generally deducted processor paid balance dairy farm enterprise supplied milk 39 basis evidence mr gilbert mr rice find processor paid monthly levy drinking milk e white non white milk sold australia money raised levy returned farmer sold manufacturing milk form domestic market support payment dm payment practical outcome producer received higher price manufacturing milk would otherwise received time dm payment intended support export return avoid domestic discounting manufactured dairy product mr mr purvis40 basis evidence mr purvis find wife involved dairy industry since approximately 1982 initially involved part time basis property balhannah since selling property 1987 engaged full time property penola south east 41 1991 1997 mr mr purvis milked approximately 100 cow day delivered milk dairy vale milk collected property tanker also collected milk kraft milk mixed taken one processor statement sent dairy vale showed payment market milk part payment manufacturing milk payment uht flavoured milk also showed amount dm payment levy deducted mr mr purvis started deliver milk de cicco 1 october 1997 mr clark42 basis evidence mr clark find took running family dairy farm moorak 1976 small enterprise became clear expand find different source income consequently 1977 wife acquired 365 acre dairy farm 12 unit swing herringbone dairy burrungule previous owner supplied kraft continued practice 1 july 1997 kraft stopped collecting milk dairy farmer south east 43 september 2000 mr clark granted standard payment right dsap scheme face value 99 496 sought internal review daa confirmed decision mr telford44 mr telford raised dairy farm mount schank district south australia 1968 bought 444 acre property area wife started farm following year first ten year milked cow one stage totalled 98 1976 switched sheep wool production 100 hive bee collapse price wool early 1980s mr mr telford decided 1990 build run fish farm next ten year ran trout fishery tourist sell fingerling farm dam hatchery hatch kind salt freshwater fish 45 early 1997 mr mr telford decided return dairy industry talked kraft agreed take milk kraft decided purchase milk dairy farmer mr mr telford chose sell milk warrnambool bought heifer cow june july 1997 month milked cow neighbour dairy waited ready 4 september 1997 milk first went tank 46 mr telford suffered health problem consequently wife decided start share farmer december 1997 sharefarmer ran cow property left two month mr mr telford son left school could milking 47 september 2000 mr telford wife granted standard payment right face value 76 709 dsap scheme sought review decision daa confirmed since receiving dsap scheme payment mr mr telford purchased neighbouring property happened january 2002 gave square property acreage increased 434 acre installed 70 unit rotary dairy plant allowing milk close 700 cow 2004 property dairy plant mainly financed borrowing 48 financial year ending 30 june 2003 mr mr telford incurred 45 000 loss leading hardship allowance six month evidencedelivery milk sammea producer others49 financial year ending 30 june 1999 mr rice said south australian dairy farm enterprise delivered milk processor party sammea end year annual report dairy authority south australia dasa show 714 licensed dairy farmer state also 35 licensed processor five supplying least milk five processor party sammea three dairy farm enterprise delivered milk processing business least three dairy farm enterprise either deliver milk processor party sammea delivered milk processor 30 licensed processor party sammea purchased milk another processor wholesale basis purchased directly one dairy farm enterprise mr rice also said year ending 30 june 1999 producer co operative delivering milk processor sammea 18 8 milk paid samme scheme rate paid non white milk50 mr gilbert said milk sold non white milk processor paid producer percentage farm gate price december 1996 rate uht flavoured milk 67 farm gate price market milk increased approximately 75 approximately january 1997 1 december 1997 rate paid uht milk flavoured milk longer rate flavoured milk became 67 uht milk 75 figure consistent evidence given mr rice referred price control order made minister agriculture period 1 january 1996 1 september 1999 51 mr gilbert mr rice gave evidence effect rate paid processor producer manufacturing milk matter individual processor time time reviewed rate mr gilbert said rate based mass butter fat protein milk could converted approximate rate per litre milk sold rate known converted manufacturing milk rate always rate lower regulated farm gate price market milk rate rate set uht milk flavoured milk using dairy vale rate example paid 22 24 cent per litre manufacturing milk approximately 43 48 regulated farm gate price market milk 52 mr rice explained difficult compare directly price paid particular processor manufacturing milk price paid non white milk price manufacturing milk typically calculated reference respective mass butter fat protein manufacturing milk received producer price non white milk set minister agriculture reference volume manufacturing milk payment notice producer processor usually specify exact volume milk supplied producer sold processor non white milk instead usually recorded specified sum representing 75 farm gate price uht milk 67 farm gate price flavoured milk included total payment producer manufacturing milk production non white milk53 mr gilbert said financial year ending 30 june 1999 dairy vale produced sold uht milk flavoured milk domestic market national food produced sold flavoured milk uht milk domestic market kraft produce flavoured uht milk murray goulburn sold uht milk manufacture milk flavoured milk sold domestic market using milk produced south australia andneither warrnambool de cicco sold uht flavoured milk 54 mr clark noted milk statement received kraft june 1999 disclosed eligible uht payment said aware kraft produced uht milk nippy may 1997 oral evidence mr rice agreed mr clark said august 1996 may 1997 kraft supplied 1 6 bulk milk nippy process uht flavoured milk producer received greater return milk processed way white milk industry fixed price non white milk based market australian dollar regulated although state minister regulated price white milk far south east concerned regulated market manufacturing milk change producer dairy vale55 mr gilbert said dairy vale becoming party sammea 1995 26 june 1997 three victorian processor became party agreement dairy vale mt gambier factory supplied approximately 92 dairy farm enterprise south east time producer left dairy vale go another processor new producer added time victorian processor joined june 1997 end year 41 dairy farm enterprise changed dairy vale another supplier later year 6 2 changed dairy vale year ending 30 june 1999 2000 respectively 2 6 changed dairy vale another processor following two year six changed dairy vale another processor year ending 30 june 2003 section 30 dsap scheme56 dr drinan gave evidence regarding way daa considered whethers 30of dsap scheme applied way apply referred intention minister making dsap scheme application discretion unders 8 5 sda scheme57 summary dr drinan evidence regarding exercise discretion unders 8 5 sda scheme sda scheme supplementary scheme intended assist small number farmer disadvantaged dsap scheme applicant fall within number dsap scheme specifically amended circumstance south australian farmer delivering milk samme scheme mind milk treated market milk milk levy paid milk amendment made act leading sda scheme made full knowledge applicant concern parliament chose make amendment dealing issue dr drinan referred oral written submission made mr purvis solicitor rural regional affair transport legislation committee senate senate committee committee tabled report dated june 2001 senate noted submission made behalf mr purvis minute dated 18 june 2001 department agriculture fishery forestry australia department attached speaking note minister number issue including position south east dairy farmer speaking note observed south east dairy farmer treated exactly way dairy farmer australia arrangement specifically requested agreed dairy industry leader anddiscretionary payment right intended provide payment entity normal course carrying dairy enterprise made commercial decision consequence reducing face value standard payment right dsap scheme deregulation expected greatest impact price dairy farmer received market milk proved case consequently assistance dsap scheme weighted favour farmer delivered greater proportion milk market milk sda scheme override replace intention 58 daa business guideline set factor may assist daa staff recommending whether exercise discretion underss 8 5 and13of sda scheme staff directed keep mind purpose scheme respect discretionary payment right provide additional assistance entity ineligible dsap payment right face value right lower would normally expected thebusiness guideline continued following factor may taken account daa us discretion however exhaustive list additional factor intention legislation may considered factor drafted particular reference case paragraph 8 5 change management ownership enterprise factor may considered using discretion reason entering agreement illness death entity significant event crisis commercial decision reason reason agreement ending improvement health farmer lessee leaving due illness etc farmer lessee leaving without agreement breach agreement commercial decision reasonsthe capacity entity granted dsap payment right capacity entity subsequently operated industry furthermore entity changed status number occasion may relevant whether entity still eligible interest dairy farm enterprise business guideline 19 2 2002 document page 154 59 selecting processor dr drinan said applicant made decision commercial ground reviewed evidence given applicant expressing opinion mr mr purvis60 mr purvis said statement wife supplied mt gambier co operative milk started farming penola chose mt gambier co operative preference processor belief would better u financially supply farmer co operative rather proprietary company profit would pas back farmer exhibit time processor south east kraft mt gambier co operative paid approximately price milk september 1991 dairy vale took mt gambier co operative mr mr purvis supplied dairy vale 61 mr purvis said wife remained dairy vale approximately six year least part time considered paid non competitive price dairy vale company refused increase price compared kraft understood kraft dairy vale agreement take producer consider could change kraft 62 mr gilbert view mr purvis understanding incorrect dairy vale kraft understanding approximately 1994 1995 dairy vale publicly expressed policy would accept new producer unless new producer purchased farm dairy vale existing producer policy intended protect existing member related agreement kraft approximately 1997 changed policy began accept new producer 63 victorian based processor de cicco warrnambool murray goulburn entered market mr mr purvis decided remain dairy vale see whether would increase price face increased competition together dairy farmer south east discussion victorian processor time kraft closed one mt gambier factory longer purchased milk south east dairy farmer meeting held first half 1997 dairy vale advised mr purvis dairy farmer would increase price match previously offered kraft offered victorian processor 64 mr gilbert confirmed dairy vale management advised dairy farmer attending meeting south east could match either price previously paid kraft price estimated murray goulburn warrnambool de cicco year ending 30 june 1998 65 making decision whether stay dairy vale change de cicco mr mr purvis took account 12 1 continuing receive market milk equalisation payment south australian market milk equalisation scheme 12 2 price 25 cent per litre receiving dairy vale e milk market milk pooled milk 12 3 price offered processor de cicco offering pay flat rate 27 cent per litre full year wcb offering pay opening price 25 cent per litre plus step ups production bonus full year 12 4 financial stability processor de cicco industry family owned company long term overseas local market expansion owner funded wcb long established co operative processor substantial turnover recommended kraft food take place south east murray goulburn largest co operative australia turnover number supplier 12 5 nature product manufactured market supplied processor determined whether either relatively flat payment structure full year competitive yearly price seasonally adjusted exhibit 66 mr gilbert said mr mr purvis notified dairy vale intention withdraw member july 1997 accordance normal practice stopped supplying dairy vale 1 september 1997 wanted return dairy vale mr gilbert continued could applied whether would accepted depended factor volume milk capable supplying locality seasonality milk production quality milk ease collection farm however considering application relevant dairy vale time short milk mt gambier region point viability dairy vale mt gambier factory doubt dairy vale mt gambier factory experienced net loss approximately 40 supplier september 1997 result decision made supplier deliver milk victorian processor order maintain viability mt gambier factory dairy vale wished increase number supplier delivering milk factory consequently dairy vale would likely accept new supplier mt gambier region region south australia exhibit 5 23 67 discussion dairy vale three victorian processor mr purvis understood use milk put processor irrelevant money would receive reference made uht milk flavoured milk discussion mr mr purvis ultimately chose de cicco mr purvis said two reason one de cicco paid higher price dairy vale paid flat rate whole year gave even cash flow processor offered competitive yearly milk price payment seasonally adjusted murray goulburn processor considered targeted selected area south east dealt dairy farmer running larger herd run mr mr purvis 68 year ending 30 june 1999 mr mr purvis milked approximately 120 dairy cow produced 560 535 litre milk although dairy farmer supplying dairy vale warrnambool could use integrated trucking system dairy vale would allow de cicco consequently local trucking company collected milk de cicco delivered scott transport transported melbourne 69 mr gilbert disputed mr purvis statement dairy vale refused allow de cicco use integrated trucking system although medium report effect time case said 70 mr purvis said received payment de cicco middle month occasionally others compared price paid various processor although processor warrnambool paid slightly higher price mr purvis consider variation justified change processor processor collecting milk south east paid amount market milk pursuant equalisation significant change total manufacturing milk price paid processor mr purvis said aware dairy vale increased price paid milk number dairy farmer changed one victorian processor price closely matched paid victorian processor 71 mr gilbert took exception statement stating dairy vale price like dairy processing company affected world commodity price exchange rate factor specific particular business company dairy vale responded prevailing market condition affected product pricing time time exhibit 6 6 rather dairy vale price increasing deregulation actually decreased whereas averaged 28 09 cent per litre financial year ending 30 june 2000 averaged 27 62 cent financial year ending 30 june 2001 72 mr purvis said aware deregulation dairy industry samme scheme would repealed consequence would dairy farmer longer received equalisation payment therefore average price paid milk would reduced accordingly continued 21 made enquiry appreciate told amount money available dsap scheme would paid based whether processor supplied also produced uht flavoured milk de cicco produce uht 7 flavoured milk aware farmer change processor received higher dsap scheme payment right additional market milk payment right sda scheme exhibit 73 mr purvis said wife decided increase total irrigation area light implication deregulation receiving dsap scheme payment increase irrigation area would increase forward feed reserve eliminate dependence grain increasing milk production grain farm cost determined market time obtained quotation 23 500 extend centre pivot maximum size ascertained would also need new bore plan required removal five tree made necessary application department environment heritage aboriginal affair application approved 74 mr mr purvis planned use money received dsap scheme either fund bore extension pivot use remainder reduce existing debt subsidise post deregulation milk price ultimately decided defer implementation decision extend pivot wait effect post deregulation dairy industry became apparent decided take payment dsap scheme quarterly instalment assist post de regulationdecreases price chose take payment lump sum due cost involved due le expected mr purvis said 27 plan put hold discovered going receive payment right equal similar farmer similar size production reduced restructure package compared published put hold plan cost enterprise approximately 33 000 35 000 per year lost income post deregulation discretionary payment would allow original plan executed additional package would cover expense required become competitive exhibit 75 mr purvis said initial impact deregulation led victorian processor dropping price paid milk mr purvis said longer receiving payment samme scheme understood however price paid dairy vale increased deregulation therefore believed farmer supplied dairy vale received higher dsap scheme payment right also received higher milk price wife mr clark76 mr clark said prior 1997 dairy vale kraft owned two milk processing factory south east agreed start new company supply drinking milk south east mr clark understood also agreed neither would take producer would also collect milk producer particular road regardless whether tanker classed belonging kraft dairy vale 77 mr clark said understood themetropolitan milk supply act 1946 sa mm act prevented dairy farmer south east supplying milk metropolitan adelaide mr rice disagreed mr clark understanding stating mm act amended effect 1 july 1993 producer longer precluded delivering white milk adelaide practical consideration additional transport cost might made uneconomic dairy farmer south east take advantage removal restriction 78 kraft stopped collecting milk dairy farmer south east july 1997 mr clark attended meeting organised victorian processor also obtained information dairy vale basis payment producer mr clark said put information three victorian processor kraft spread sheet together dairy vale understood changing dairy vale option july 1997 kraft agreement take producer 79 set mr gilbert said mr clark understanding incorrect 4 july 1997 dairy vale decided accept new producer mr gilbert wrote existing producer advise gave notice company newsletter published august 1997 newsletter sent existing producer party sammea 200 people body including sadf association involved industry 80 july 1997 mr clark decided change warrnambool mr clark said produce significant quantity uht milk flavoured milk product said based decision select warrnambool processor number factor including price paid fat protein processor calculated price volume charge applied bonus season milk whether processor required share purchased exhibit b mr clark said none processor remaining kraft left market told included information pricing structure effect differential price would paid according whether milk went uht flavoured milk time milk went uht flavoured milk sometimes milk collected neighbour supplied dairy vale whether milk became uht flavoured milk depended factory delivered milk could taken warrnambool allansford victoria kraft philly cheese factory mt gambier dairy vale mount gambier factory another milk factory mt gambier 81 mr gilbert said mr mr clark wished become producer dairy vale open time company changed policy july 1997 application would determined merit given fact enterprise situated burrungule delivered 1 397 999 litre year ending 30 june 1999 likely dairy vale would accepted application far mr gilbert aware mr mr clark made approach dairy vale 82 mr clark said although realised samme scheme would repealed result deregulation would longer receive equalisation payment know amount money paid dsap scheme would based whether processor wife supplied produced uht flavoured milk 83 mr clark said chose take standard payment right quarterly instalment assist deregulation decrease price option taking payment lump sum chose cost involved le expected payment right mr clark said money used various aspect running dairy farm cover unexpected cost breakdown drive shaft pivot 84 mr clark said intended use dsap scheme payment make fall return milk increasing production efficiency undertake needed undertake major pasture renovation renovation dairy discretionary payment would allow execution renovation plan dairy farm enterprise become competitive mr clark said renovation plan put hold discovered going receive package equal farmer equal production equal pre deregulation financial return exhibit b 20 instead pushed pasture harder taken stop gap measure dairy accommodate extra milk reduce time spent milking mr telford85 mr telford said commenced business 1997 wife discussion kraft field officer mr noel stratford supply milk kraft time said dairy vale want producer despite trying contact dairy vale call returned chase company cross examination mr telford said could recall whether telephone call answered dairy vale kraft option mr telford continued ceased operate july 1997 warrnambool became option victorian processor entered market one would wanted milk 86 cross examination mr telford said wife chose warrnambool paying fairly good price time think whether producing uht milk flavoured milk aware delivered milk processor produced market milk including uht milk flavoured milk pay levy processor produced manufacturing milk received dm payment 87 time started milking mr telford attended meeting de cicco held dairy farmer south east request de cicco sent information analysed information decided remain warrnambool warrnambool collect milk property pooling arrangement dairy vale whereby milk supplied mixed tanker 88 mr gilbert said mr mr telford wished become producer dairy vale open time company changed policy july 1997 application would determined merit given fact enterprise situated mt schank delivered 994 930 litre year ending 30 june 1999 likely dairy vale would accepted application far mr gilbert aware mr mr telford made approach dairy vale 89 mr telford said wife intended use dsap payment reduce debt purchase cow could improve viability operation updated equipment knew deregulation dairy industry meant repeal samme scheme end equalisation payment reduction average price received milk mr telford said know amount money paid dsap scheme would based whether processor supplied also produced uht flavoured milk known might affected decision made sell milk warrnambool 90 mr telford said wife decided take payment dsap scheme three quarterly payment followed lump sum used pay private loan family pay cow bought account reduce overdraft towards end 2003 canvassed processor determine basis would purchase milk comparing base mr mr telford decided stay warrnambool management dairy farm91 mr purvis said activity involved management dairy farm include 4 1 selection breeding care dairy cow 4 2 pasture fodder management including maintaining pasture crop improving irrigation method hay silage production supplemental feeding programme 4 3 milking dairy cow twice daily 4 4 communicating dairy farmer keeping date dairy farming information attending information session field day 4 5 undertaking negotiation processor take milk comparing price received milk u farmer 4 6 budgeting maintaining necessary financial record obtaining finance needed 4 7 purchasing good required operating farm 4 8 maintaining repairing farm equipment machinery ensuring farm activity recorded comply quality assurance program management mr clark said carry day day business farm includes many task feeding looking cow milking cow ensuring milk picked delivery fixing farm equipment looking finance exhibit b 92 mr telford said first couple year starting milk production business hardest year cow milking machine bulk tank hay grain silage must maintained described four general area business managing dairy farm land includes irrigation feed grain fence cattle includes selecting cattle feeding care breeding rearing calf production milk includes milking cattle making sure milking equipment work properly milk picked delivered processor supply payment includes selecting processor going supplied making sure payment received allocating money various area business exhibit m valerie monaghan said management 3 explained well mukhi hampton barnwell 1994 australian management mcgraw hill book company australia pty limited roseville 20 traditional view management see common set process competently carried contribute organizational effectiveness efficiency basic process planning organizing leading controlling believe defining planning process management p 21 accurate cover management role dairy farmer observed many year working farmer involved management task planning includes thinking fundamental nature organization deciding positioned environment develop deploy particular strength cope threat opportunity environment planning also includes refining fundamental long range ambition translating specific short range objective method implementation clear selection process dairy farmer go choose processor enterprise supply farm milk output part planning process management exhibit f 93 m monaghan said view selection processor management decision confirmed fact choice processor milk production enterprise identified rural business management unit australian national training authority 94 dr drinan said decision change processor decision made management decision change management dairy enterprise change processor uncommon dairy industry example owner operator introduce sharefarmers operation dairy farm enterprise two dairy farm enterprise combined would change management 95 mr gilbert said dairy farmer required run operate carry business differently change one processor another far aware dairy vale national food three victorian processor impose requirement producer would lead difference way carry business 96 mr acheson gave evidence regarding change would need made management dairy farm enterprise management practice day day farming arrangement milk production delivery change processor would consequence change assumption second half 1997 dairy farm enterprise south east changed processor supplied milk either kraft dairy vale either warrnambool de cicco 97 mr acheson gave evidence effect would change required change processor consequence change based view following reason south australia time dairy farm enterprise usually meet several pre condition supply milk processor cow producing milk example producer volume milk would sufficiently high justify processor collecting milk must met processor standard milk quality respect hygiene temperature producer changed another processor could assumed dairy farm enterprise met new processor standard would assumed standard processor similar unless processor small processor consideration case processor responsible collection milk change responsibility processor generally milk collected processor tanker collection responsibility dairy farm enterprise time change processor might resulted dairy farm enterprise voluntarily adjusting attempting adjust practice take best possible economic advantage new processor milk pricing arrangement example new processor paid seasonal price supplier paid volume mass milk time milk supply relatively scarce time milk supply relatively plentiful supplier might move seasonal pattern calving pattern spread broadly year well managed change would thing even likely increase milk production dairy farm enterprise higher price would paid reduce milk production processor paid lower milk price change would merely voluntary rather one required imposed new processor 98 mr acheson said activity undertaking negotiation processor take milk part dairy farm management practice day day farming arrangement dairy farm enterprise arrangement processor producer akin standing order processor collect producer milk agreement reached producer processor collection becomes matter routine discrepancy payment dairy farmer dsap scheme99 together assistant m ruth low m monaghan prepared spreadsheet showing average payment made dsap scheme sda scheme average dairy farm south east statistic milk production south east year ending 30 june 1999 andthe average proceeds south east dairy farm year ending 30 june 1999 average supplying dairy vale formerly dairy farmer de cicco murray goulburn warrnambool 100 m low m monoghan obtained pricing structure processor dairy farmer monthly milk statement supplemented processor newsletter information obtained processor attached m monoghan first statement 11 appendix three appendix amending three first group 101 referring samme scheme sammec m monaghan said important feature spreadsheet market milk split sammec non sammec proportion demonstrate clearly dairy farmer company later dairy vale collected market milk levy sammec non sammec market milk uht flavoured milk b although levy collected market milk supplier receive market milk price non sammec component exhibit e appendix 12 4 102 m monaghan said analysis would appear show even though dairy farmer supplier advised within manufacturing milk payment milk paid prescribed percentage farm gate price end day price received supplier manufacturing sic milk fact le three processor base 1998 99 year would seem clearly show absence formal equalisation scheme uht flavoured milk south australia occurred state price equalised across south east due ordinary market force consequently one must ask ground could justified dairy farmer supplier receive around 30 initial dairy restructure package south eastern farmer let alone additional 15 000 farm way later basic market milk payment exhibit e 6 103 m monaghan also concluded spreadsheet disclose 8 1 lower south east dairy farmer produced average south east production supplied factory dairy farmer would received 67 000 le dsap sda scheme payment compared another south east dairy farmer level production supplied dairy farmer 8 2 average net cent per litre paid four processor lower south east farmer similar 1998 99 1999 2000 year maximum variance order 1 cent per litre exhibit f considerationwas change management dairy farm enterprise undertaken mr mr purvis mr clark 28 september 1999 8 5 ii 104 meant management in 8 5 word defined sda scheme elsewhere package although used elsewhere example 8 3 b ordinary meaning include administration organization commercial enterprise shorter oxford english dictionary 5th edition 2002 soed act manner managing handling direction control macquarie dictionary 3rd edition 1997 macquarie 1the skill practice controlling directing planning something especially commercial enterprise activity 2the manager company etc group 3manner directing controlling using something chamber 21stcentury dictionary 1999 105 word appear isolation context ofs 8 5 specifically of8 5 ii reference made management generally management dairy farm enterprise clause 2of program defines expression dairy farm enterprise business australia delivers market milk manufacturing milk program cll 2and6 reason gave relation dsap scheme definition dairy farm enterprise incl 2of program equally applicable sda scheme 106 word business used definition also word defined relevant instrument mason cj gaudron mchugh jj said inre australian industrial relation commission ex parte australian transport officer federation 1990 hca 52 1990 171 clr 216 word word business notorious taking colour content surroundings 226 wide range meaning canvassed branson j innassif v minister immigration multicultural indigenous affair 2003 fca 481 2003 129 fcr 448at 454 5 inre buchan dairy adjustment authority 2002 aata 644 2001 71 ald 114 regard wide range meaning word context program dsap scheme 30 regard ordinary meaning word business authority seems taken context act word given general meaning say interpreted covering wide field human endeavour whether described profession trade employment vocation calling occupation person engaged provided may properly described something hobby recreational pursuit 125 107 context management market milk manufacturing milk business delivering dairy farm enterprise read broadly possible refer way fashion manner control direction planning activity delivers market milk manufacturing milk person group engaged control direction planning earlier case ofre mynard dairy adjustment authority 2004 aata 940 considered task could encompassed within first two meaning word management context ofs 8 3 b sda scheme management dairy farm enterprise must therefore handling directing controlling matter go make business including limited maintaining herd milking cow organising collection milk maintaining record paying fee charge taxation maintaining pasture mending fence person task said manage dairy farm enterprise may example undertaken employee contractor case leased property maintenance fixture may responsibility owner according lease enterprise must viewed overall factor considered 88 108 regard interpretation choice processor milk delivered delivery milk processor feature relate management dairy farm enterprise first sense management feature go sale collection milk feature relates second sense person group engaged control direction planning dairy farm enterprise 109 mr mr purvis mr clark find replaced processor milk delivered another processor ordinary meaning word changed processor milk delivered changed management dairy enterprise made change 1997 28 september 1999 required bys 8 5 ii sda scheme change management dairy farm enterprise undertaken mr telford 28 september 1999 8 5 ii 110 mr mr telford find planned deliver milk kraft unable kraft withdrew market south east never actually delivered milk kraft decision deliver warrnambool rather kraft longer option cannot said replacement one processor another plan processor would deliver milk due course replacement one processor another never change implemented fact delivering milk plan changed 111 change change management mr mr telford dairy farm enterprise change made delivered milk processor mean carrying business could said carrying business still building herd seeferguson v federal commissioner taxation 1979 fca 29 1979 79 atc 4 261at 4 269 see also 4 266 per bowen cj franki j though carrying dairy farm enterprise forcl 2and6of program defines expression dairy farm enterprise business australia delivers market milk manufacturing milk define reference business deliver market milk manufacturing milk future therefore mr mr telford managing dairy farm enterprise changed plan deliver milk warrnambool rather kraft could change management dairy farm enterprise result change plan atypical feature management dairy farm enterprise undertaken mr telford 28 september 1999 8 5 ii 112 word atypical defined sda scheme part package usual meaning typical representative usual etc chamber 21stcentury dictionary mr mr purvis mr clark pursue argument change processor atypical feature management dairy enterprise think correct clear evidence choice processor matter considered time time every dairy farmer simply one decision made course managing dairy farm enterprise 113 atypical feature management mr telford dairy enterprise said processor available warrnambool murray valley de cicco three party sammea none produced significant quantity uht flavoured milk accept mr telford understanding choice available accept situation fact dairy vale find also open accept new producer 4 july 1997 whether potential producer knew immediately open question information circulated widely dairy vale newsletter august 1997 sent sadf association available dairy industry south australia might come mr telford attention basis mr gilbert evidence satisfied likely dairy vale would accepted delivery milk mr mr telford given volume milk produced location dairy farm 114 whether fact could supplied dairy vale known consider thinking restricted even actually restricted atypical feature management mr mr telford dairy enterprise evidence suggest something usual management particular enterprise new dairy farm enterprise begin delivering milk approximately august september 1997 background judge typical representative usual management ifs 8 5 iii requires regard typical representative usual management dairy farm enterprise considering atypical mr telford dairy farm enterprise evidence make finding evidence suggest producer whether south east elsewhere position choice limited processor produced uht milk flavoured milk satisfied atypical feature management mr mr telford dairy farm enterprise 115 neither change atypical feature management mr mr telford dairy farm enterprise follows eligible sda payment affirm decision review change management dairy enterprise significantly adversely affect eligibility mr mr purvis payment right dsap scheme 8 5 iii 116 note daa conceded change processor significant adverse effect face value mr mr purvis dsap payment right found change processor change management dairy farm enterprise basis concession change affected proportion market milk delivered dairy farm enterprise dairy vale sold non white milk product domestic market new processor de cicco accepted concession basis thats 8 5 iii refer change particular period time particularly refer change occur base year change mr mr purvis well mr clark occur base year beginning 1 july 1998 previous financial year change management dairy enterprise significantly adversely affect eligibility mr clark payment right dsap scheme 8 5 iii 117 concession made relation mr clark mr telford section 8 5 iii requires determine two matter relation first change management dairy enterprise must affected either entity eligibility payment right dsap scheme face value payment right one two effect second determine whether effect significant adverse meant expression significant adverse defined sda scheme elsewhere package considered previous case relating package considered context canvassed tribunal member inre vulcan australia pty ltd comptroller general custom dimplex australia pty ltd party joined 1994 34 ald 773 779 780 70 word significant considered several authority includingmcveigh another v willarra pty ltd others 1984 fca 379 1984 57 alr 344 toohey wilcox spender jj concerned whether significant australian content film andnickelberg p r v queen 1989 hca 35 1989 86 alr 321 masoncj brennan deane toohey gaudron jj considered whether significant possibility jury would acquitted given certain additional evidence 71 franki j also considered intrade practice commission v tnt management pty ltd see para 65 19856 fcr 1 58 alr 423 attempting define word necessary noted fcr50 alr 474 clear must mean perhaps except extraordinary circumstance least important insignificant page 50 72 foster j inaci pet operation collector custom 1990 fca 398 1990 26 fcr 531examined word significant context section 269c previously enacted context significant part australia would significant cross elasticity demand good honour said 551 2 word significant acquired number shade meaning common parlance instance infrequently used substitute substantial however clearly important given precise meaning possible legislative provision use import major guiding consideration determination comptroller whether good serve similar function turn therefore dictionary guidance find theoxford english dictionary 2nd ed defines word relevant full meaning import important notable conveying meaning themacquarie dictionarydefines important consequence expressing meaning indicative derive assistance also considering word opposite insignificant word defined themacquarie dictionaryas meaning unimportant trifling petty small important looked point view significant may regarded meaning unimportant trivial sufficiently large important one could doubt multiply meaning recourse dictionary one thing clear namely necessarily fair degree value judgment involved attributing significance something significance must also depend upon context use term must frequently involve subsidiary question significant word used connection holding inquiry making decision view conveys notion importance meaningfulness relevance enquiry decision add meaning given inchambers 21stcentury dictionary 1important worth noting considering 2having meaning indicating implying something 118 vulcanalso considered meaning word adverse context expression adverse effect 73 brings u word adverse effect aware authority relation regard ordinary meaning word adverse defined far definition relevant theshorter oxford dictionary 3rd edition opposing anyone interest hence unfavourable injurious calamitous themacquarie dictionary 1st edition opposing one interest desire word effect need explanation 780 meaning consistent inchambers 21stcentury dictionary unfavourable one interest 119 combination two word one expression significant adverse in 8 5 iii persuade word given anything ordinary meaning case change management dairy enterprise must unfavourably affected face value entity payment right extent meaning worth noting leaf open basis meaning worth judged return 120 daa initially submitted proportion market milk altered mr mr clark decision change kraft warrnambool evidence mr rice however kraft supplied 1 6 milk nippy process non white milk accept evidence also note mr almond submission would translate 3 difference dsap payment made relation mr mr clark dairy enterprise given mr clark received 99 496 dsap payment made mr mr clark dairy enterprise 198 992 3 difference figure order 5 970 121 although evidence given aspect consider reasonably open conclude sum almost 6 000 sum worth noting mr mr clark even taken background dsap payment enterprise almost 200 000 find wife used dsap payment received ongoing cost dairy farm sum magnitude would put good use dairy farm worth noting significant 122 significance judged reference mr mr clark view judged general standard minister indicated second reading speech delivered introduction thedairy industry adjustment bill 2000to amend act second reading speech total value package 1 74 billion estimated 127 million would flow south australia dsap scheme 123 note thats 8 3 sda scheme also requires regard significant context significant event crisis unlikes 8 5 guidance given regarded significant come form ofs 8 4 make provision relation tos 8 3 c section 8 3 c provides entity taken affected significant event significant crisis significant reduction volume milk delivered dairy farm enterprise base year compared enterprise normal year volume milk section 8 3 b specify event crisis set provision ofs 8 4 24 essence base year enterprise delivered le 70 milk normally delivered reduction may taken significant 124 althoughs 8 4 concern unrelated matter even determinative whether significant event crisis indicative parliament considers significant 30 reduction normal year volume milk necessarily mean 30 reduction dsap payment reduction overall volume milk dsap payment calculated certainly consequence consider thats 8 4 taken guide parliament intention treated significant something assessed broader background individual dairy farmer assessed background scheme package assistance give deregulation dairy industry conclude change 1 3 milk regarded market milk dairy enterprise consequent change order 3 dsap payment received mr mr clark significant atypical feature management mr telford dairy enterprise significantly adversely affect mr telford eligibility payment right dsap scheme 8 5 iii 125 atypical feature management mr telford dairy enterprise satisfied affected face value payment right significantly adversely thought choice limited three producer warrnambool murray goulburn de cicco produce significant quantity uht milk flavoured milk dairy vale option find basis mr gilbert evidence produce uht milk flavoured milk even assumption choice limited processor producing significant amount uht milk flavoured milk satisfied mr mr telford would chosen processor basis evidence satisfied mr telford made decision basis return would receive milk took account use made milk processor therefore atypical feature management dairy enterprise one would factor affecting face value payment right dsap scheme factor affect would exercising choice processor choice would based purely commercial ground satisfied would necessarily chosen processor produced uht milk flavoured milk therefore satisfied atypical feature one management mr telford dairy farm enterprise affected face value mr telford payment right dsap scheme let alone affected significantly adversely follows consider mr telford eligible sda payment affirm decision review exercise discretion relation mr mr purvis role 30 3 dsap scheme126 begin dr drinan statement exhibited copy minute dated 18 june 2001 addressed minister jpd 1 regarding amendment dsap scheme stated proposed amendment dsap scheme attached together explanatory tabling statement neither included jpd 1 minute went specify amendment proposed administrative nature aimed assisting daa process application deal effectively appeal one substantive change relates payment right anomaly occurred state pooling arrangement exhibit 1 jpd 1 2 went explain anomaly conclude purpose proposed amendment ensure producer milk regulated price within saand paid dm levyare paid actual level market milk delivery around 32 total absence proposed amendment advised daa solicitor producer eligible receive market milk payment 19 total delivery amount equal proportion milk delivered producer state pooling arrangement exhibit 3g 2 jpd 1 note marked agreed minister 127 second briefing note attached debate house representative briefing note also dated 18 june 2001 marked noted minister attached five document addressing point could raised debate attachment e set number point relating position dairy farmer south east 128 mr almond referred also earlier letter written minister mr purvis 20 october 2000 minister referred difference assistance paid milk delivery base year manufacturing milk market milk wrote part differential treatment reflects significant difference adjustment required producer reliant regulated market milk price compared whose business essentially geared deliver manufacturing milk definition market manufacturing milk line treatment milk delivery recently ended commonwealth domestic market support dm scheme unde dm scheme milk attracted levy 1 9 cent per litre defined market milk whereas milk dm payment paid producer defined manufacturing milk definition ensured treatment across commonwealth program remained consistent dairy package fair equitable possible industry participant indicated earlier higher entitlement payment market milk delivery reflect greater adjustment required producer affected removal state regulated market milk arrangement regard would expect dairy producer historically sold milk unregulated price would better position adjust completely deregulated milk market would neighbour sold greater proportion milk regulated price document 52 53 129 accept minute evidence department material advising minister nothing minister letter lead similar conclusion cannot turn either assist interpretation ofs 30either virtue principle set ai act established common 130 beginning ai act may consider material forming part act capable assisting ascertainment meaning provision limit set in 15ab 1 section 15ab 2 specifies document may assist interpretation legislative provision accordance withs 15ab 1 departmental briefing note among section 15ab 3 provides factor may taken account determining whether material considered considering weight attached two matter desirability person able rely ordinary meaning conveyed text provision taking account context act purpose object underlying act c need avoid prolonging legal proceeding without compensating advantage ai act 15ab 3 131 two matter mind looked range document specified in 15ab 2 fall four general category set document containing text legislation referred text ai act s 15 2 g report document come attention either house parliament text made available member legislation enacted ai act s 15 2 b c e second reading speech minister ai act 15 2 f official record vote proceeding debate text ai act 15 2 h stated even generally material either found referred text legislation material available parliament enacted legislation reflect consideration briefing note minister setting speaking note letter sent constituent minister come within category document content might might made known parliament referred parliamentary debate briefing note minister letter company document considered incommissioner taxation v murray 1990 fca 69 1990 21 fcr 436 92 alr 671 intention commissioner submitting matter consideration governmental committee deliberation committee tell little parliamentary intention best material may suggest mischief person mind framing bill put parliament parliament appraised mischief proponent bill second reading speech explanatory memorandum debate hard sure mischief truth parliament sought overcome surer guide case word statute particularly case word construed ordinary english word attended ambiguity 449 685 per hill j 132 minute attaching amendment dsap scheme explanatory tabling note also category minute reflects view drafting approving minute minister signature minute signifies approved explanatory statement attached minute signed dated dsap instrument signifies approved content document signify agreed even read content minute minute without doubt prepared carefully intended reflect explanatory statement however character example report committee sort court referred assist identifying mischief addressed purpose legislation given copy explanatory statement consider could regard principle statutory interpretation applicable interpretation statute equally applicable delegated legislation dsap scheme 133 section 15abof ai act cast aside common law principle governing material may regard stated mason wilson jj incooper brooke wollongong pty ltd v federal commissioner taxation 1981 hca 26 1981 147 clr 297 fundamental object statutory construction every case ascertain legislative intention reference language instrument viewed whole performing task court look operation statute according term legitimate aid construction 320 regard may context legislation enacted ascertain themischief parliament intended remedy ascertain legislative intent well settled common law apart reliance upons 15abof theacts interpretation act1901 cth court may regard report law reform body ascertain mischief statute intended cure moreover modern approach statutory interpretation insists context considered first instance merely later stage ambiguity might thought arise b us context widest sense include thing existing state law mischief legitimate mean mentioned one may discern statute intended remedy instance general instance statute constrained context numerous particular mchugh ja pointed

Endeavour Foundation Enterprise Award - State 2005 [2005] QIRComm 99; 179 QGIG 518 (3 June 2005).txt

endeavour foundation enterprise award state 2005 2005 qircomm 99 179 qgig 518 3 june 2005 last updated 14 november 2005queensland industrial relation commissionindustrial relation act 1999 125 making amending repealing awardsqueensland chamber commerce industry limited industrial organisation employer australian worker union employee queensland others b293 2005 endeavour foundation industrial agreementcommissioner fisher 3 june 2005repeal new awardthis matter coming hearing commission brisbane 3 june 2005 commission order said industrial agreement repealed award followsby consentas 6 june 2005 endeavour foundation enterprise award state 2005part 1 application operation1 1 titlethis award known endeavour foundation enterprise award state 2005 1 2 arrangementsubject matter clause part 1 application operationtitle 1 1arrangement 1 2date operation 1 3award coverage 1 4parties bound 1 5definitions 1 6area operation 1 7part 2 flexibilityenterprise flexibility 2 1part 3 communication consultation dispute resolutiongrievance dispute settling procedure 3 1consultation 3 2part 4 employer employee duty employment relationship related arrangementsemployment category 4 1full time employment 4 2part time employment 4 3casual employment 4 4fixed term employment 4 5incidental peripheral task 4 6anti discrimination 4 7termination employment 4 8introduction change 4 9redundancy 4 10part 5 wage wage related mattersclassification structure 5 1definition classification 5 2relieving higher grade 5 3payment wage 5 4deduction wage 5 5no reduction wage 5 6salary packaging 5 7allowances 5 8superannuation 5 9part 6 hour work break overtime shiftwork weekend workhours work 6 1maximising available work time 6 2meal break 6 3rest pause 6 4overtime 6 5time lieu overtime 6 6part 7 leave absence public holidaysannual leave 7 1sick leave 7 2long service leave 7 3family leave 7 4bereavement leave 7 5public holiday 7 6ceremonial leave 7 7special leave 7 8part 8 transfer travelling working away usual place workno provision inserted award relevant part part 9 training related matterstraining education 9 1part 10 occupational health safety matter equipment tool amenitiesno provision inserted award relevant part part 11 award compliance union related mattersright entry 11 1time wage record 11 2trade union training leave 11 3posting award 11 4jury service 11 5residential support worker schedule 1 awu qsuaccommodation lifestyle support worker schedule 2 awu qsuatss support worker business service supervisor schedule 3 awu qsutraining placement employee schedule 4 qsuretail employee schedule 5 sdasupported employee schedule6 awu1 3 date operationthis award take effect 6 june 2005 1 4 award coverage1 4 1 enterprise award applies throughout state queensland person employed endeavour engaged calling classification set relevant schedule residential support worker schedule 1schedule 1 shall apply residential support worker provide support group client residential environment including respite care schedule 1 shall apply accommodation lifestyle support worker b accommodation lifestyle support worker schedule 2schedule 2 shall apply accommodation lifestyle support worker provide individualised support lifestyle training client schedule 2 shall apply residential supervisor residential assistant covered schedule 1 c at support worker business service supervisor schedule 3schedule 3 shall apply employee working adult training support service employee working business service excluding training placement employee schedule 4 supported business service employee schedule 6 adult training support service at mean service service providing accommodation support supported employment endeavour provides individually focussed service based group individual activity including activity access local community enhance life skill quality life client training placement employee schedule 4schedule 4 shall apply training placement employee employed provide training placement support client disability open employment another employer provides training development within business service e retail employee schedule 5schedule 5 shall apply employee required work retail store owned endeavour f supported employee schedule 6schedule 6 shall apply employee intellectual disability work business service schedule 6 include service endeavour schedule 6 shall apply employee covered supported wage award state 2002 1 4 2parts 1 11of enterprise award provides general condition apply employee except specifically stated otherwise condition contained schedule 1 6 enterprise award condition clause schedule take precedence general condition clause contained inparts 1 11 1 4 3 employee paid rate equal level 5 wage rate schedule 3 shall exempted frompart 6of award 1 5 party boundthis award legally binding employer employee prescribed clause 1 4 union member 1 6 definitions1 6 1 act mean theindustrial relation act 1999 qld amended replaced time time 1 6 2 business service mean employment service specialises employment people intellectual disability 1 6 3 client mean person intellectual disability supported service provided endeavour 1 6 4 commission mean queensland industrial relation commission 1 6 5 endeavour mean endeavour foundation 1 6 6 union mean australian worker union employee queensland awu queensland service industrial union employee qsu shop distributive allied employee association queensland branch union employee sda 1 7 area operationthis award operates throughout queensland purpose award following division district named herein 1 7 1divisionsnorthern division portion state along north line commencing junction sea coast 21st parallel south latitude latitude due west 147 degree east longitude longitude due south 22 degree 30 minute south latitude latitude due west western border state mackay division portion state within following boundary commencing junction sea coast 21st parallel south latitude latitude due west 147 degree east longitude longitude due south 22 degree south latitude latitude due east sea coast sea coast northerly point commencement southern division portion state included northern mackay division 1 7 2districts northern divisioneastern district portion northern division along east 144 degree 30 minute east longitude western district remainder northern division b southern divisioneastern district portion southern division along east line commencing junction southern border state 150 degree east longitude longitude due north 25 degree south latitude latitude due west 147 degree east longitude longitude due north boundary mackay division western district remainder southern division part 2 flexibility2 1 enterprise flexibility2 1 1 part process improvement productivity efficiency discussion take place enterprise provide flexible working arrangement improvement quality working life enhancement skill training job satisfaction encourage consultative mechanism across workplace 2 1 2 consultative process established enterprise accordance clause 2 1 may provide appropriate mechanism consideration matter relevant clause 2 1 1 union delegate place work may involved discussion 2 1 3 proposed genuine agreement reached endeavour employee enterprise contingent upon agreement submitted commission accordance chapter 6 act force effect approval given part 3 communication consultation dispute resolution3 1 grievance dispute settlement procedure3 1 1 objective procedure promote prompt resolution grievance dispute consultation co operation discussion b reduce amount disputation 3 1 2 matter dealt procedure include grievance dispute employee endeavour respect industrial matter matter party agree processed clause procedure apply single employee number employee 3 1 3 stage follows stage 1 event employee grievance dispute employee first instance attempt resolve matter immediate supervisor grievance immediate supervisor next appropriate level management respond request reasonably practicable circumstance within 24 hour stage 2 grievance dispute resolved stage 1 employee employee local union representative may refer matter next higher level management discussion discussion possible take place within 24 hour request employee employee representative stage 3 grievance dispute still unresolved stage 2 discussion matter referred preferably writing aggrieved party nominated manager discussion matter instance member one union listed clause 1 6 6 reported state secretary relevant union discussion held nominated manager endeavour endeavour nominated industrial representative stage 4 grievance dispute still unresolved stage 3 discussion matter referred general manager decision based relevant information decision advised relevant union writing stage 5 discussion party stage 4 dispute remains unresolved party genuinely attempted achieve settlement notification existence dispute given accordance withsection 229of act 3 1 4 procedure completed accordance following time frame unless party agree otherwise stage 1 discussion extend beyond 3 week day b stage 2 discussion extend beyond 4 week day c stage 3 4 discussion extend beyond 14 week day total whilst procedure followed normal work continue except instance genuine safety issue 3 1 5 thestatus quoexisting emergence grievance dispute continue whilst procedure followed 3 1 6 nothing preclude employee consulting relevant union 3 1 7 party give due consideration matter raised suggestion recommendation made industrial commissioner industrial magistrate view prompt settlement dispute 3 1 8 order commission subject party right appeal act final binding party dispute 3 1 9 discussion stage procedure unreasonably delayed party subject acceptance matter may complexity importance may take reasonable period time appropriate response made genuine discussion unreasonably delayed hindered open party give notification dispute pursuant relevant industrial relation legislation applicable time time 3 1 10 sleepover allowance reinstated employee 14 day result employee stood disciplinary process employee return work 3 2 consultationthe party award committed co operating positively increase efficiency productivity competitiveness enhance career opportunity job security employee employer employee industrial organisation employee commit establishing consultative mechanism procedure appropriate size structure need endeavour foundation matter raised employer employee industrial organisation employee shall processed consultative mechanism procedure open honest manner sensitive need party client endeavour foundation part 4 employer employee duty employment relationship related arrangements4 1 employment categories4 1 1 employee covered award advised writing employment category upon appointment employment category applying residential support worker schedule 1 full time b part time prescribed clause 4 3 c casual prescribed clause 4 4 fixed term either full time part time prescribed clause 4 5 4 1 2 employee casual upon commencement may engaged probationary period 3 month longer period may notified writing endeavour employee prior commencement employment 4 1 3locationan employee may required work number different workplace term engagement 4 1 4more one engagement employee employed full time part time casual employee combination part time casual determined clause 4 1 4 c paid relevant classification level position b time engagement endeavour inform employee term engagement particular whether full time part time casual employee varied mutual agreement c part time employee may also engaged separate engagement either part time casual provided engagement satisfies criterion clause 4 1 4 criterion need satisfied follows subject mutual agreement endeavour employee ii work required performed separate engagement within usual job description employee concerned iii interfere employee original contract employment iv designed avoid overtime obligation v separate engagement enables employee obtain additional hour remuneration e respect clause 4 1 4 c additional hour obtained separate contract employment aggregated one period part 76 hour per fortnight 4 2 full time employmentan employee specifically engaged part time casual basis full time employee entitled weekly benefit 4 3 part time employment4 3 1 part time employee employee engaged work le 15 2 hour 70 hour per fortnight hour worked 10 day per fortnight 10 hour per day within daily spread hour prescribed clause 6 1 classification work performed 4 3 2 part time employee paid hourly rate position classification prescribed schedule 1 6 addition employee entitled apro ratapayment allowance appropriate 4 3 3 part time employee entitled annual leave sick leave long service leave bereavement leave public holiday entitlement proportionate basis calculated employee ordinary hour work 4 3 4 subject clause 6 1 ordinary daily working hour worked continuously excluding meal break ordinary daily working hour le 2 hour 8 hour one day provided agreement endeavour individual employee ordinary daily working hour may 10 hour one day 4 3 5 part time employee work minimum 4 consecutive ordinary hour day entitled rest pause 10 minute duration without loss pay first 4 hour 10 minute rest pause 8 consecutive hour worked one day rest pause taken time interfere continuity work continuity opinion endeavour necessary provided least 6 hour worked continuously employee entitled meal break le 30 minute 4 3 6 part time employee work 8 hour 10 hour agreement one day 38 hour one week paid overtime accordance clause 6 5 4 3 7 subject provision contained clause 4 3 provision award relevant full time employee apply part time employee 4 4 casual employment4 4 1 casual employee employee regularly employed either full time part time employee engaged paid hour 76 ordinary hour per fortnight may leave endeavour service discharged time without notice 4 4 2 casual employee paid hourly rate equal 123 appropriate ordinary hourly rate relevant classification prescribed schedule 1 6 casual employee entitled topro ratapayment applicable allowance award 4 4 3 casual employee receive minimum payment 2 hour respect engagement casual employee engaged accommodation lifestyle support worker entitled minimum 1 hour engagement 4 4 4 casual loading compounded penalty contained award penalty calculated base rate pay excluding casual loading casual loading component added penalty rate pay 4 4 5 casual employee work 8 hour one day provided agreement endeavour individual employee daily ordinary working hour may 10 hour one day casual employee work 8 hour one day 10 hour agreement one day 76 hour one fortnight paid overtime accordance clause 6 5 award 4 5 fixed term employment4 5 1 employee may engaged fixed term contract specific project contract 4 5 2 fixed term contract operates specific period time agreed writing party prior engagement end specified period contract employment individual come end 4 5 3 specific project contract operates duration specified work task range task agreed party prior agreement task completed contract employment individual come end 4 6 incidental peripheral tasks4 6 1 endeavour may direct employee carry duty within limit employee skill competence training provided duty designed promote de skilling 4 6 2 endeavour may direct employee carry duty use equipment tool may required provided employee properly trained use equipment tool 4 6 3 assignment incidental peripheral task employee class employee consistent efficient performance employee main task function b subject employee skill competence perform initial task c consistent endeavour responsibility provide safe healthy working environment 4 7 anti discrimination4 7 1 intention party award prevent eliminate discrimination defined theanti discrimination act 1991and act includes discrimination basis sex marital status family responsibility pregnancy parental status age race impairment religion political belief activity trade union activity lawful sexual activity association relation person identified basis attribute b sexual harassment c racial religious vilification 4 7 2 accordingly fulfilling obligation grievance dispute settling procedure clause 3 1 grievance dispute settlement procedure party award must take reasonable step ensure neither award provision operation directly indirectly discriminatory effect 4 7 3 theanti discrimination act 1991it unlawful victimise employee employee made may make involved complaint unlawful discrimination harassment 4 7 4 nothing clause 4 7 anti discrimination taken affect different treatment treatment different outcome specifically exempted theanti discrimination act 1991 b employee employer registered organisation pursuing matter discrimination including application human right equal opportunity commission anti discrimination commission queensland 4 8 termination employment4 8 1statement employmentendeavour event termination employment provide upon request employee terminated written statement specifying period employment classification type work performed employee 4 8 2termination endeavour endeavour may dismiss employee employee given following notice period continuous service period noticenot 1 year 1 weekmore 1 year 3 year 2 weeksmore 3 year 5 year 3 weeksmore 5 year 4 week b addition notice clause 4 8 2 employee 45 year old completed least 2 year continuous service endeavour entitled additional week notice c payment lieu notice made appropriate notice given provided employment may terminated part period notice specified part payment lieu thereof calculating payment lieu notice minimum compensation payable employee least total amount endeavour would liable pay employee employee employment continued end required notice period total must worked basis ordinary working hour worked employee ii amount payable employee hour including example purpose allowance loading penalty iii amount payable employee employment contract e period notice clause apply case dismissal misconduct ground justify instant dismissal case casual employee employee engaged hour day employee engaged specific period task 4 8 3notice termination employeethe notice termination required given employee required endeavour save except additional notice based age employee concerned employee fails give notice endeavour right withhold monies due employee maximum amount equal amount employee would received clause 4 8 2 4 8 4time notice periodduring period notice termination given endeavour employee allowed one day time without loss pay purpose seeking employment time taken time convenient employee consultation endeavour 4 9 introduction changes4 9 1endeavour duty notify endeavour decides introduce change production program organisation structure technology likely significant effect employee endeavour notify employee may affected proposed change relevant union union b significant effect includes termination employment major change composition operation size endeavour workforce skill required elimination diminution job opportunity job tenure alteration hour work need retraining transfer employee work location restructuring job provided award make provision alteration matter referred herein alteration deemed significant effect 4 9 2endeavour duty consult change endeavour consult employee affected relevant union union introduction change effect change likely employee including number category employee likely dismissed time period endeavour intends carry dismissal way avoid minimise effect change e g finding alternate employment b consultation must occur soon practicable making decision referred clause 4 9 1 c purpose consultation endeavour provide writing employee concerned relevant union union relevant information change including nature change proposed expected effect change employee matter likely affect employee provided endeavour required disclose confidential information disclosure would adverse endeavour interest 4 10 redundancy4 10 1consultation termination endeavour decides endeavour longer wish job employee done anyone due ordinary customary turnover labour decision may lead termination employment endeavour consult employee directly affected relevant union union b consultation take place soon practicable endeavour made decision invoke provision clause 4 10 1 cover reason proposed termination measure avoid minimise termination adverse affect employee concerned c purpose consultation endeavour soon practicable provide writing employee concerned relevant union union relevant information proposed termination including reason proposed termination number category employee likely affected number worker normally employed period termination likely carried provided endeavour required disclose confidential information disclosure would adverse endeavour interest 4 10 2transfer lower paid duty employee transferred lower paid duty reason set clause 4 10 1 employee entitled period notice transfer employee would entitled employee employment terminated clause 4 8 b endeavour may endeavour option make payment lieu thereof amount equal difference former amount endeavour would liable pay new lower amount endeavour liable pay employee number week notice still owing c amount must worked basis ordinary working hour worked employee ii amount payable employee hour including example allowance loading penalty iii amount payable employee employment contract 4 10 3transmission business business whether date insertion clause 4 10 3 award transmitted endeavour transmittor another employer transmittee employee time transmission employee transmittor business becomes employee transmittee continuity employment employee deemed broken reason transmission ii period employment employee transmittor prior transmittor deemed service employee transmittee b clause 4 10 3 business includes trade process business occupation includes part subsidiary mean corporation would taken subsidiary corporation law whether corporation law applies particular case business transmission includes transfer conveyance assignment succession whether agreement operation law transmitted corresponding meaning 4 10 4time notice period decision made terminate employee circumstance outlined clause 4 10 1 employee allowed one day time without loss pay week notice purpose seeking employment b employee allowed paid leave one day notice period purpose seeking employment employee request endeavour required produce proof attendance interview employee receive payment time absent purpose statutory declaration sufficient 4 10 5notice centrelinkwhere decision made terminate employee circumstance outlined clause 4 10 1 endeavour notify centrelink soon possible giving relevant information proposed termination including written statement reason termination number category employee likely affected number worker normally employed period termination intended carried 4 10 6severance pay addition period notice prescribed ordinary termination clause 4 8 2 subject order commission employee whose employment terminated reason set clause 4 10 1 entitled following amount severance pay period continuous service severance pay week pay le 1 year nil1 year 2 year 4more 2 year 3 year 6more 3 year 4 year 7more 4 year 5 year 8more 5 year 6 year 9more 6 year 7 year 10more 7 year 8 year 11more 8 year 9 year 12more 9 year 10 year 13more 10 year 11 year 14more 11 year 12 year 15more 12 year 16 b week pay mean ordinary time rate pay employee concerned provided following amount excluded calculation ordinary time rate pay overtime penalty rate disability allowance shift allowance special rate fare travelling time allowance bonus ancillary payment 4 10 7superannuation benefitsendeavour may make application commission relief obligation make severance payment circumstance endeavour contributed superannuation scheme provides particular benefit employee redundancy situation b particular benefit employee benefit employee might obtain legislative scheme providing superannuation benefit currently federal superannuation guarantee levy award based superannuation scheme 4 10 8employee leaving noticean employee whose employment terminated reason set clause 4 10 1 may terminate employment period notice entitled benefit payment clause employee remained endeavour expiry notice provided circumstance employee entitled payment lieu notice 4 10 9alternative employmentendeavour particular case may make application commission general severance pay prescription amended endeavour obtains acceptable alternative employment employee 4 10 10employees le one year serviceclause 4 10 apply employee le one year continuous service general obligation endeavour give relevant employee indication impending redundancy first reasonable opportunity take step may reasonable facilitate obtaining employee suitable alternative employment 4 10 11employees exemptedclause 4 10 apply employment terminated consequence misconduct part employee b employee engaged specific period task c casual employee 4 10 12exemption transmission business provision clause 4 10 6 applicable business date insertion clause 4 10 award transmitted endeavour transmittor another endeavour transmittee following circumstance employee accepts employment transmittee recognises period continuous service employee transmittor prior transmittor continuous service employee transmittee ii employee reject offer employment transmittee term condition substantially similar le favourable considered overall basis term condition applicable employee time ceasing employment transmittor b recognises period continuous service employee transmittor prior transmittor continuous service employee transmittee commission may amend clause 4 10 13 ii satisfied would operate unfairly particular case instance contrived arrangement 4 10 13incapacity payendeavour particular redundancy case may make application commission general severance pay prescription amended basis employer incapacity pay part 5 wage wage related matters5 1 classification structureemployees classified accordance following classification structure prescribed relevant schedule 5 2 definition classificationemployees paid accordance following wage structure corresponds employee relevant classification set schedules5 3 relieving higher gradean employee called upon endeavour perform duty another employee higher classification award five consecutive working day paid period duty assumed rate le minimum rate prescribed higher classification 5 4 payment wageswages paid endeavour electronic fund transfer eft fortnightly provided payment made eft reasonable geographical access facility enables employee withdraw wage usual pay day public holiday occur close weekly fortnightly pay period usual pay day payment wage may delayed longer period holiday alternative arrangement paying wage discretion endeavour 5 5 deduction wagesupon request employee endeavour pay money due employee respect wage union annual contribution part thereof employee member union addition subject agreement majority employee covered award selection one possible supplier service eg mbf subject written request particular employee regard agreed supplier employer pay money due requesting employee annual contribution part thereof due agreed supplier service endeavour required process 2 different type payment employee generally 5 6 reduction wagesemployees receiving higher rate wage provided award reduced wage consequence making enterprise award 5 7 salary packagingwhere agreed endeavour full time part time employee endeavour may introduce salary packaging respect wage term condition packaging viewed objectively le favourable entitlement otherwise available award 5 8 allowances5 8 1divisional district allowance employee employed outside eastern district southern division paid following amount addition wage rate prescribed schedule 1 6 division district located adult juniorsper week per week northern division eastern district 1 05 0 53northern division western district 2 20 1 10mackay division 0 90 0 45southern division western district 1 05 0 53these amount payable purpose award 5 8 2extra payment week end work applicable residential support worker ordinary hour worked employee residential support worker midnight friday midnight sunday including 10 ordinary hour one period work paid rate ordinary time plus additional percentage employee ordinary time rate follows midnight friday midnight saturday 50 midnight saturday midnight sunday 75 b time worked employee week end period excess ordinary hour one shift paid appropriate overtime rate lieu additional percentage 5 9 superannuation5 9 1 purpose employee enjoying higher contribution occupational superannuation fund endeavour employee may agree written request employee employee sacrifice part wage due award provided sacrificed part wage paid endeavour credit employee agreed complying fund provided sacrifice arrangement compliance income taxation legislation 5 9 2superannuation contributionendeavour contribute endeavour foundation retirement fund behalf eligible employee superannuation contribution required comply thesuperannuation guarantee administration act 1992as amended time time follows 9 behalf eligible employee contribution behalf eligible employee apply date employee commencement employment endeavour notwithstanding date membership application forwarded fund contribution made least monthly amount contribution fund calculated nearest 10 cent fraction 5 cent disregarded fund amount contribution paid accordance clause 5 9 2 included pay advice notice provided endeavour employee 5 9 3definitions ordinary time earnings purpose calculating employer contribution mean weekly fortnightly case may wage earned ordinary time pay period concerned detailed relevant schedule b shift allowance weekend penalty rate allowance disability reimbursement expense annual leave loading qualification allowance uniform like included calculation ordinary time earnings 5 9 4employers participate nominated fund endeavour make application employer nominated fund become participating employer fund become participating employer upon acceptance trustee fund b endeavour provide employee member fund membership application form upon commencement clause 5 9 4 thereafter upon commencement employment c employee required complete membership application endeavour forward completed application fund end calendar month commencement clause commencement employment 5 9 5provision worker make superannuation contribution award fund employee may make contribution fund addition made endeavour clause 5 9 2 b employee wish make additional contribution must authorise endeavour writing pay fund employee wage specified amount accordance fund trust deed rule c receiving written authorisation employee endeavour must commence making payment fund behalf employee within 14 day receipt authorisation employee may vary additional contribution written authorisation calendar year endeavour must alter additional contribution within 14 day receipt authorisation e additional employee contribution fund requested clause 5 9 5 expressed whole dollar part 6 hour work break overtime shift work weekend work6 1 hour work6 1 1 ordinary hour work employee casual part time employee average 76 hour per fortnight worked period exceeding 10 consecutive day 14 day period 6 1 2 see relevant schedule spread hours6 1 3 full time part time employee rostered work 10 14 day cycle within 14 day cycle employee given 4 day le 2 whole day consecutive 2 period comprising 2 day b 3 consecutive day one stand alone day c one period 4 consecutive day 6 2 maximising available work timeall employee observe nominated starting finishing time work day including designated meal break rest pause maximise available working time personal preparation work travel home completion work employee time 6 3 meal breaks6 3 1 subject clause 4 3 5 employee required work least 5 hour continuously day allowed unpaid meal break le 30 minute mutuallyconvenient time regard work requirement 6 3 2 subject endeavour employee agreeing contrary employee directed work meal break able take meal break within reasonable time paid appropriate overtime rate period employee would normally taken meal break allowed meal break soon practicable 6 4 rest pauses6 4 1 subject clause 4 3 5 practicable employee entitled rest pause 10 minute duration period 4 hour working time day 6 4 2 rest pause taken part employee working time taken time suit convenience endeavour interfere continuity operation provided endeavour employee agree two 10 minute rest pause employee entitled day may combined one 20 minute rest pause day mutually convenient time 6 5 overtime6 5 1 work done employee excess employee ordinary hour work employee designated starting time employee designated ceasing time deemed overtime paid rate time half first 3 hour rate double time thereafter overtime work performed one day 6 5 2 work done sunday excess employee ordinary hour work employee designated starting time employee designated ceasing time deemed overtime paid rate double time work performed day 6 5 3 employee work overtime unless instructed endeavour 6 5 4 employee required continue working 1 hour employee designated ceasing time allowed 30 minute meal break first hour worked supplied meal free charge endeavour paid meal allowance 9 60 lieu thereof provided employee usually would taken meal time day night period 6 5 5 employee may required work reasonable overtime 6 5 6 employee work much overtime termination ordinary work one day commencement work next day employee least 10 consecutive hour duty subject clause 6 5 6 released completion overtime employee 10 consecutive hour duty instruction endeavour employee resume continues work without 10 consecutive hour duty employee paid double rate released duty period employee entitled absent receiving 10 consecutive hour duty without loss pay ordinary working time occurring absence 6 5 7 provision clause 6 5 6 apply case shift worker rotate one shift another 8 hour substituted 10 hour overtime worked purpose changing shift roster b shift worker continuous shift worker report duty c shift worked arrangement employee arrangement employer 6 5 8 provision clause 6 5 7 shall apply schedule 1 6 6 time lieu notwithstanding requirement clause 6 5 endeavour may mutual agreement elect compensate employee overtime worked granting time duty period equivalent number hour required paid overtime calculated accordance clause 6 5 b time duty accumulated clause 6 6 taken within 6 week earned c endeavour unable grant time duty within 6 week specified time duty paid next available pay period employee cease employment time duty owed employee time ceasing employment paid employee termination payment e purpose clause 6 6 equivalent mean number hour equal overtime rate ie time half double time would paid f endeavour maintain appropriate record hour accumulated taken duty employee pursuant clause 6 6 part 7 leave absence public holidays7 1 annual leave7 1 1entitlement every employee end completed year service entitled annual leave full pay le 152 hour leave b addition 7 1 1 lifestyle accommodation support employee required work continuous 24 hour rostered work arrangement morning afternoon night rostered arrangement worked 7 day per week 12 month period employee shall entitled additional 38 hour c every full time part time daily support worker daily residential assistant shall accrue annual leave rate 228 hour leave year employment 7 1 2 annual holiday exclusive public holiday may occur period annual holiday paid employer advance case every employee receipt immediately prior holiday ordinary pay rate excess ordinary rate payable award excess rate ii every case ordinary rate payable employee concerned immediately prior holiday award 7 1 3 employment employee become entitled annual leave terminated employer employee employee taken whole leave employee presumed taken leave case may remainder leave date termination employment employer forthwith pay employee addition sum due employee employee ordinary pay period leave case may remainder leave public holiday would occur period 7 1 4 employment employee terminated expiration full year employment employee paid addition amount due amount equal 1 12th employee pay period employment case calculated accordance clause 7 1 5calculation annual leave payin respect annual leave entitlement clause 7 1 applies annual holiday pay including proportionate payment calculated follows employee subject provision clause 7 1 5 b case payment employer employee le sum following amount employee ordinary wage rate prescribed award period annual leave excluding shift premium week end penalty rate ii amount calculated rate 17 1 2 amount referred clause 7 1 5 b clause 7 1 5 apply following period period annual leave exceeding 228 hour leave case daily residential supervisor daily residential assistant or190 hour leave case lifestyle accommodation support continuous shift worker or152 hour leave case employee ii endeavour employee already paying receiving annual leave bonus loading annual leave payment le favourable employee 7 1 6accrual annual leaveif annual leave referred clause 7 1 taken fall due time time annual leave mutual arrangement may accumulated period exceeding 2 year 7 1 7payment annual leaveall leave paid advance another time mutual agreement 7 1 8when leave takenannual leave may taken one period agreement endeavour employee providing general period leave shall le one week employee may permitted take several single day absence upon reasonable notice endeavour 7 1 9close downendeavour may giving le one month notice intention close business section thereof one complete period 2 separate period purpose allowing annual leave bulk employee business section concerned employee entitled annual leave cover period closedown granted leave without pay count service 7 1 10annual leave noticewhenever practicable time taking annual leave agreement case endeavour give le 20 day notice time employee commence annual leave 7 2 sick leave7 2 1entitlement every employee except casual school based apprentice trainee entitled 76 hour sick leave completed year service endeavour provided part time employee accrue sick leave proportionate basis b entitlement accrue rate 7 6 hour sick leave 6 week employment c payment sick leave based number hour would worked employee employee absent sick leave sick leave may taken part day e sick leave shall cumulative unless employer employee otherwise agree employee shall entitled receive employer shall bound make payment 13 week absence work illness one year 7 2 2employee must give noticethe payment sick leave subject employee promptly advising employer employee absence expected duration 7 2 3evidence supporting claimwhen employee absence 2 day employee required give employer doctor certificate reasonably acceptable evidence nature approximate duration illness7 2 4accumulative sick leavean employee accumulated sick leave entitlement preserved employee absent work unpaid leave granted employer b employer employee terminate employee employment employee employed within 3 month c employee employment terminated illness injury employee employed employer without employed interim 7 2 5continuity service continuity service employee endeavour sick leave accumulation purpose deemed broken following absence work leave granted endeavour ii employee dismissed stood endeavour employee terminated employment endeavour period exceeding 3 month provided employee employed endeavour b period employment employee endeavour interrupted determined circumstance mentioned clause 7 2 5 taken account calculating period service employee endeavour 7 2 6pattern sick leave absenceswhere employee proven pattern recurring absence sick leave endeavour entitled inform employee event future absence medical certificate pursuant clause 7 2 3 may required respect period sick leave taken period 6 month thereafter 7 3 long service leaveall employee covered award entitled long service leave full pay subject accordance provision chapter 2 part 3sections 42 58of act amended time time 7 4 family leavethe provision family leave award apply deemed form part award 7 4 1 noted part time work performed agreement circumstance specified family leave award b copy family leave award required displayed accordance section 697 act 7 4 2 family leave award also provides term condition leave associated maternity leave b parental leave c adoption leave special responsibility leave care support employee immediate family household 7 5 bereavement leave7 5 1full time part time employeesfull time part time employee death member immediate family household australia entitled paid bereavement leave including day funeral person leave without deduction pay period exceeding number hour worked employee 2 ordinary day work proof death furnished employee satisfaction endeavour 7 5 2long term casual employee long term casual employee entitled least 2 day unpaid bereavement leave death member person immediate family household australia b long term casual employee casual employee engaged endeavour regular systematic basis several period employment period least one year immediately employee seek access entitlement clause 7 5 7 5 3 immediate family includes spouse including former spouse ade factospouse formerde factospouse spouse sex employee b child adult child including adopted child foster child ex foster child stepchild ex nuptial child parent grandparent grandchild sibling employee spouse employee 7 5 4unpaid leavean employee consent endeavour may apply unpaid leave member employee immediate family household australia dy period bereavement leave entitlement provided insufficient 7 6 public holidays7 6 1 subject clause 7 6 7 majority ordinary hour work done employee 12 midnight 12 midnight 1st january 26th january good friday easter saturday day good friday easter monday 25th april anzac day birthday sovereign christmas day boxing day day appointed theholidays act 1983 kept place holiday paid rate double time half minimum 4 hour 7 6 2labour dayall employee covered award entitled paid full day wage labour day first monday may day appointed theholidays act 1983 kept place holiday irrespective fact work may performed day employee concerned actually work labour day employee paid full day wage day addition payment time actually worked employee one half time ordinary time rate pay prescribed work minimum 4 hour 7 6 3annual showall work done employee district specified time time minister notification published thegazetteon day appointed theholidays act 1983 kept holiday relation annual agricultural horticultural industrial show held principal city town specified notification district paid rate double time half minimum 4 hour district holiday appointed annual agricultural horticultural industrial show employee endeavour must agree ordinary working day treated show holiday purpose provided show period one day duration employee may agree endeavour choose another day show period lieu day appointed case provision clause 7 6 3 apply day chosen 7 6 4double time halfall time worked holiday mentioned clause 7 6 1 7 6 2 7 6 3 outside ordinary starting ceasing time prescribed award day week holiday fall shall paid double rate prescribed award time worked outside ordinary starting ceasing time ordinary working day 7 6 5stand downany employee 2 week continuous service whose employment terminated endeavour stood endeavour month december employed january following year entitled payment ordinary rate payable employee dismissed stood one following holiday namely christmas day boxing day new year day 7 6 6notice requirement workif required employee work holiday provided clause 7 6 1 7 6 2 7 6 3 endeavour give le one clear day notice requirement employee 7 6 7substitutionwhere agreement majority employee business section section involved endeavour subject statutory limitation public holiday may substituted another day day worked payment day rate double time half employee ordinary rate pay 7 6 8if work required endeavour performedall full time employee entitled paid ordinary rostered hour public holiday mentioned clause 7 6 1 7 6 2 7 6 3 public holiday fall day regularly worked employee concerned irrespective fact work may required endeavour day 7 6 9annual leave impactshould public holiday occur period employee annual leave added employee annual leave extra day day occurring 7 6 10if rostered offfor public holiday mentioned clause 7 6 1 7 6 2 7 6 3 fall full time employee day employee paid additional day wage granted day holiday lieu time mutually arranged endeavour employee concerned extra day added employee annual leave provided provision clause 7 6 10 rostered insofar easter saturday another public holiday falling weekend concerned apply employee whose ordinary hour work regularly worked monday friday inclusive regularly saturday sunday week 7 6 11part time employeespart time employee entitled public holiday provision clause 7 6 1 7 6 2 7 6 3 provided part time employee would ordinarily rostered work day public holiday part time employee rostered work day week public holiday fall required work day paid hour would otherwise worked day part time employee rostered regularly work day public holiday happens fall public holiday occurs period employee annual leave added employee annual leave extra day day occurring 7 6 12casual employeescasual employee required work public holiday paid rate double time half time worked day provided paid minimum 4 hour 7 6 13additional annual leave optionan employee may agree writing endeavour compensated entitlement extra payment work performed entitlement additional annual leave full pay appropriate rate 7 7 ceremonial leave7 7 1 employee legitimately required aboriginal torres strait islander tradition absent work aboriginal islander ceremonial purpose entitled 10 working day unpaid leave one year 7 7 2 day may include limited tombstone opening smoking house initiation ceremony national aborigine torres strait islander observance day coming light attend ceremony deemed elder significant 7 8 special leave7 8 1 subject prior approval service manager section manager special leave period exceeding one week may granted employee without pay accordance policy endeavour 7 8 2 request special leave period exceeding one week referred nominated manager approval discretion general manager part 8 transfer travelling working away usual place workno provision inserted award relevant part part 9 training related matters9 1 training education party award jointly committed undertaking appropriate training employee working award enhance develop work skill employee b training undertaken accordance following condition relevant training determined endeavour required undertaken either job endeavour possible provide employee access accredited training appropriate ii training undertaken ordinary work hour employee suffer loss pay iii employee entitled attend approved training program may time away work without loss pay attend conference seminar short term course training deemed endeavour appropriate employee employment part 10 occupational health safety matter equipment tool amenitiesno provision inserted award relevant part part 11 award compliance union related matterspreambleclauses 11 1 11 2 replicate legislative provision contained within act order ensure currency existing legal requirement party advised refer section 366 372 373 act amended time time 11 1 right entry authorised industrial officer union official holding current authority issued industrial registrar b right entry limited workplace work performed fall within registered coverage union 11 1 1entry procedure authorised industrial officer entitled enter workplace normal business hour long authorised industrial officer alert employer person charge workplace presence ii show authorisation upon request b clause 11 1 2 apply authorised industrial officer establishes employer person charge absent c person must obstruct hinder authorised industrial officer exercising right entry authorised industrial officer intentionally disregard condition clause 11 1 2 authorised industrial officer may treated trespasser 11 1 2inspection record authorised industrial officer entitled inspect time wage record required kept section 366 act b authorised industrial officer entitled inspect time wage record former current employee except employee ineligible become member union ii party qwa ancillary document unless employee given written consent record inspected iii made written request endeavour employee want employee record inspected c authorised industrial officer may make copy record cannot require help endeavour person must coerce employee prospective employee consenting refusing consent inspection record authorised industrial officer 11 1 3discussions employeesan authorised industrial officer entitled discus endeavour member employee eligible become member union matter act working non working time b matter member employee eligible become member union non working time 11 1 4conductan authorised industrial officer must unreasonably interfere performance work exercising right entry 11 2 time wage record11 2 1 endeavour must keep place work queensland time wage record contains following particular pay period employee including apprentice trainee employee award classification b endeavour full name c name award employee working number hour worked employee day week time employee started stopped work detail work break including meal break e weekly daily hourly wage rate detail wage rate week day hour employee paid f gross net wage paid employee g detail deduction made wage h contribution made endeavour superannuation fund11 2 2the time wage record must also contain employee full name address b employee date birth c detail sick leave credited approved sick leave payment employee date employee became employee endeavour e appropriate date employee ceased employment endeavour f casual employee entitlement long service leave worked section 47 act total hour overtime worked employee since start period entitlement relates worked including 30 june year 11 2 3endeavour must keep record 6 year 11 2 4 record open inspection endeavour business hour inspector department industrial relation accordance section 371 act authorised industrial officer accordance section 372 373 act 11 3 trade union training leave u l 11 3 1 upon application employer accredited employee representative endorsed relevant industrial organisation giving least one month notice employee shall granted 5 working day leave non cumulative ordinary pay calendar year attend course seminar conducted union provided employee applied leave least twelve month service current employer prior u l granted 11 3 2 granting leave shall subject convenience employer unduly affect operation employer 11 3 3 scope content level course shall contribute better understanding industrial relation within employer operation 11 3 4 employer may make spot check time time employee released u l satisfy employer employee actually attend u l 11 3 5 paid leave affect leave granted employee award 11 3 6 clause 11 3 shall apply service fewer 15 employee covered award 11 4 award postinga true copy award exhibited conspicuous convenient place premise endeavour easily read employee 11 5 jury servicea weekly part time employee required attend jury service ordinary hour work reimbursed endeavour amount equal difference amount paid respect attendance jury service amount wage would received respect ordinary time would worked jury service employee notify endeavour soon possible date upon required attend jury service employee give endeavour documentary proof attendance duration attendance amount received respect jury service schedule 1 residential support workersdefinitions schedule 11 1 area manager mean senior manager endeavour responsibility geographic area endeavour service business 1 2 day mean referred award schedule 1 connection residential supervisor resident assistant engaged daily basis period 24 hour commencement time particular day and1 3 residential mean dwelling owned operated endeavour b used able used group home group temporary respite home client endeavour include dwelling privately owned occupied individual client endeavour 1 4 residential assistant mean employee provides care assistance client live residential may required part usual duty sleep residential 1 5 residential manager mean employee coordinate operation one residential dwelling way promotes efficiency cost effectiveness individual dwelling group dwelling 1 6 residential supervisor mean employee performs duty residential assistant addition supervisor also responsibility administrative managerial task relation operation residential 1 7 senior residential supervisor mean employee performs duty residential supervisor addition extra responsibility duty relation management residential except expressly differentiated reference term condition applicable residential supervisor also apply senior residential supervisor 1 8 senior service development manager mean manager endeavour responsibility operational management endeavour service including residentials geographic area2 0 part time employment2 1 1 part time employee engaged following term part time employee may either hourly part time employee engaged work predetermined day regular number hour le 15 2 70 hour per fortnight hour worked 10 day per fortnight 7 6 hour per day within daily spread hour prescribed clause 6 1 schedule 1 classification work performed ii residential supervisor residential assistant may engaged daily part time employee engaged work predetermined number day le 2 day 7 day per fortnight work performed within cycle ordinary hour prescribed clause 6 1 1 schedule 1 classification work performed b except provided clause condition applicable permanent full time employee apply pro rata basis part time employee accordance ordinary hour day employee actually work c usual time work part time employee may altered endeavour giving 14 day written notice mutual agreement part time employee generally work hour day prescribed contract employment provided endeavour giving 14 day written notice mutual agreement endeavour employee employee hour day ordinary duty may temporarily varied maximum 76 hour 8 day per fortnight respectively additional hour day paid ordinary hourly daily rate additional hour day temporarily worked part time employee affect status part time employee taken account thepro ratacalculation entitlement e permanent reduction endeavour number hour day worked part time employee may made accordance clause 4 8 award f part time employee work excess hour prescribed sub clause classification work performed entitled hourly part time employee overtime accordance clause 6 5 schedule 1 ii daily part time employee additional leave accordance clause 6 1 7 schedule 1 2 1 2 part time employee paid follows hourly part time employee hourly rate specified relevant column wage table clause 4 1 schedule 1 ascertained dividing appropriate fortnightly minimum rate full time employee classification 76 daily part time employee daily rate specified relevant column wage table clause 4 1 wage rate schedule 1 ascertained dividing appropriate fortnightly minimum rate full time employee classification 8 2 2 casual employment2 2 1 casual employee engaged following term casual employee mean employee engaged hour employed 76 hour per fortnight may leave endeavour service discharged time without notice b casual employee work excess ordinary hour prescribed clause 6 1 schedule 1 classification work performed ii 76 hour per fortnightwill entitled overtime accordance clause 6 5 c hourly rate pay casual employee specified relevant column wage table clause 4 1 schedule 1 ascertained dividing appropriate fortnightly minimum rate full time employee classification 76 adding loading 23 casual employee shall receive loading 23 e casual employee engaged minimum period 2 hour receive minimum payment 2 hour per engagement casual engagement stand alone 3 0 classification structureemployees classified accordance following classification structure3 1 definition classifications3 1 1 support stream level 1 general descriptionshall non supervisory support stream level 1 employee defined accountable work using discretion work general supervision defined employee higher level may work individually team environment may limited interaction client defined b indicative tasksindicative task employee level required perform domestic duty cleaning laundering washing tea making cooking gardening ground maintenance including mowing weeding pruning planting basic maintenance including workshop cleaning cleaning care residence routine general production assembly task including wrapping folding stamping labelling counting inserting sorting cutting gluing palletising well picking packing order customer liaison 3 1 2 support stream level 2 general descriptionan employee level required perform work beyond skill level 1 employee level training competent perform work within scope level level employee may undertake range activity requiring application skill knowledge higher level level 1 employee subject direct supervision defined may work individually team environment perform work performed within established routine method standard procedure may involve machinery use hand trolley pallet truck undertake cleaning labouring labelling collating undercoat painting limited scope exercise initiative us limited discretion applying work practice procedure accountable work within scope level understanding quality control measure practice understand practise correct use personal protective equipment required assist employee higher classification level specific project understand use limited range non verbal communication understanding work procedure relevant work area may provide assistance employer lower classification level concerning established procedure meet objective minor function required resolve minor work procedural issue relevant work area within established workplace constraint employee level skill training access staff higher level undertakes simple training assignment client defined supervision driving public passenger vehicle licensed carry 12 passenger maintain daily record result activity level 3 1 3support stream level 3 general descriptionan employee level required perform work beyond skill level 2 employee level training competent perform work within scope level including employee hold relevant certificate level qualification including trade certificate b trade right certificateor equivalent thereto provided employee required interact client defined shall progress beyond increment level 3 paypoint 1 hereof level employee may supervise employee lower classification level work general supervision defined use discretion within scope level working individually team environment undertake work may non routine nature subject pre set objective work assignment involved complex assembly work involved cutting eg docking timber stake painting timber e g pointing peg without limiting generality thereof supervises employee classified lower classification level client defined including checking progress co ordinating workflow accountable work work others use initiative discretion judgement planning organising work technique work employee lower classification level client defined understand use limited range non verbal communication 3 1 4 support stream level 4 characteristic levela person employed support stream level 4 shall work general direction application procedure method guideline well established would obtained organisation industry specific knowledge sufficient give advice information organisation client relation specific area responsibility general feature level involve solving problem limited difficulty using knowledge judgement work organisational skill acquired qualification previous work experience assistance available senior employee employee may receive instruction broader aspect work addition employee may provide assistance lower classified employee position level allow employee scope exercising initiative application established work procedure may require employee establish goal objective outcome particular work programme project level employee may required supervise lower classified staff volunteer day day work employee supervisory responsibility may undertake complex operational work may undertake planning co ordination activity within clearly defined area organisation employee may responsible delivery good dispatch duty employee responsible managing planning work employee responsible managing planning work subordinate staff volunteer may required deal formal disciplinary issue within work area supervisory responsibility basic knowledge principle human resource management able assist subordinate staff volunteer job training may required supervise one component work b responsibilitiesto contribute operational objective workplace position level may include following input similar value 1 undertake responsibility various activity specialised area 2 exercise responsibility function within organisation 3 allow scope exercising initiative application established work procedure 4 assist range function contribute interpretation matter clearly established practice procedure although activity would sole responsibility employee within workplace 5 provide secretarial administrative support requiring high degree judgement initiative confidentiality sensitivity performance work 6 assist provide range record management service however responsibility record management service would rest employee 7 proficient operation computer enable modification correction computer software system package identification problem level could include system administrator small medium sized organisation whose responsibility includes security integrity system 8 apply computing programming knowledge skill system development maintenance implementation direction senior employee 9 supervise limited number lower classified employee volunteer 10 allow scope exercising initiative application established work procedure 11 deliver single stream training programme 12 co ordinate elementary service programme 13 provide assistance senior employee 14 prime responsibility lie specialised field employee level would undertake least following undertake minor phase broad complex assignment b perform duty specialised nature c provide range information service plan co ordinate elementary community based project programme e perform moderately complex function including social planning demographic analysis survey design analysis c requirement jobsome following needed perform work level skill knowledge experience qualification training1 thorough knowledge work activity performed within organisation 2 sound knowledge procedural method organisation 3 may utilise professional specialised knowledge 4 working knowledge guideline statutory requirement relevant organisation 5 ability apply computing concept 6 prerequisite entry level would entry level three year degree b entry level four year degree c associate diploma experience advanced certificate community service experience equivalent e attained previous appointment service study equivalent level expertise experience undertake range activity required ii organisational relationships1 work general supervision 2 operate member team 3 supervision employee iii extent authority1 receive instruction broader aspect work 2 freedom act within defined established practice freedom arrange work manner employee feel comfortable provided change defined established work practice 3 may set outcome objective specific project 4 problem usually solved reference procedure documented method instruction assistance available problem occur 4 0 wage rates4 1 operative date award minimum rate wage full time employee level 1 trainee casual hourly ratehourly ratefortnightly ratepaypoint 1 15 6694 12 7393 968 19level 2 residential assistant casual hourly ratehourly ratedaily rate excludes allowance fortnightly rate excludes allowance week end flexibility allowance per day paypoint 1 17 0188 13 8364 131 4463 1 051 5700 13 8364paypoint 2 17 4236 14 1655 134 5725 1 076 5800 14 1655paypoint 3 17 8313 14 4970 137 7213 1 101 7700 14 4970level 3 residential supervisor casual hourly ratehourly ratedaily rate excludes allowance fortnightly rate excludes allowance week end flexibility allowance per day paypoint 1 18 1648 14 7682 140 2975 1 122 3800 14 7682paypoint 2 18 8415 15 3183 145 5238 1 164 1900 15 3183paypoint 3 19 5144 15 8654 150 7213 1 205 7700 15 8654level 4 senior residential supervisor residential manager casual hourly ratehourly ratedaily rate excludes allowance fortnightly rate excludes allowance week end flexibility allowance per day paypoint 1 20 1793 16 4059 155 8563 1 246 8500 16 4059paypoint 2 20 8577 16 9575 161 0963 1 288 7700 16 9575paypoint 3 21 5344 17 5076 166 3225 1 330 5800 17 5076paypoint 4 22 2115 18 0582 171 5525 1 372 4200 18 0582note rate pay award intended include arbitrated wage adjustment payable 1 september 2004 declaration general ruling earlier safety net adjustment arbitrated wage adjustment disputed case referred vice president arbitrated wage adjustment may offset equivalent rate pay received employee whose wage condition employment regulated award wage rate prescribed award payment include wage payable pursuant certified agreement currently operating enterprise flexibility agreement queensland workplace agreement award amendment give effect enterprise agreement absorption contrary term agreement required increase made previous state wage case current statement principle excepting resulting enterprise agreement used offset arbitrated wage adjustment 4 2 progression levels4 2 1 progression trainee paypoint 1 residential assistant level minimum 3 month 456 hour service performed exceed maximum 6 month 912 hour service period ensure training outcome consolidated trainee given opportunity demonstrate job skill competency 4 2 2 employee trainee progression one level next dependent upon appointment 4 2 3 progression within level employee move one paypoint next paypoint employee worked 1976 hour 2 year whichever lesser b notwithstanding anything contained employee entitled receive wage level movement undergoing counselling regarding work performance deemed endeavour reached satisfactory performance level 5 0 sleep allowance5 1 1 employee including casual employee required endeavour perform sleep period exceeding 8 hour period may attend client requirement sleep allowance 35 00per night spent sleeping paid 5 1 2 accommodation sleeping meal duration sleep provided employee free charge employee also entitled make use residential facility laundry tv electrical equipment 5 1 3 wherever possible additional ordinary hour work worked employee either sleepover case casual employee ordinary hour equivalent minimum engagement casual employee specified clause 2 2 schedule 1 must worked paid employee either sleepover 5 1 4 time spent sleeping counted purpose calculating employee average hour work 6 0 hour work overtime breaks6 1 residential supervisor residential assistant daily basis 6 1 1 residential supervisor residential assistant work average 76 hour per fortnight worked following basis maximum 8 working day 14 day b flexible daily hour worked within maximum spread 16 hour accordance provision clause 6 1 1 provision clause 9 schedule 1 6 1 2 ordinary hour work may include providing care assistance client throughout day work necessary daily hour work must therefore flexible employee may particular day required work le average daily hour depending client need residential supervisor residential assistant may required sleep residential day work sleep over remunerated accordance clause 5 schedule 1 count purpose calculating employee average hour work 6 1 3 order provide maximum flexibility roster developed residential take account wherever possible individual circumstance ensure equitable distribution daily full time daily part time employee work performed outside standard hour 6 1 4four hour free duty period residential supervisor residential assistant entitled monday friday guaranteed minimum 4 hour break subject work requirement ability take period duty excess 4 hour working day subject following condition acknowledged party may unavoidable occasion employee unable free duty must remain workplace whatever reason circumstance arises employee must first inform endeavour ensure reasonable effort made provide relief employee take break ii circumstance endeavour notified advance employee necessity work break unable provide relief requires employee work break employee able elect paid minimum 4 hour ordinary hourly rate take equivalent additional leave provided clause 6 1 7 schedule 1 provided employee agrees make available work break extra remuneration emergency circumstance unavoidable occasion maximum 10 day per annum 6 1 5 saturday sunday subject work requirement employee may take break period duty able taken circumstance although relief staff provided circumstance allow employee negotiate individual residential level allow alternate break combination equally distributes free duty time may available 6 1 6weekend flexibility allowance endeavour encourages employee make full use break period duty work minimum hour necessary however endeavour acknowledges weekend difficult employee access break duty period due client need administrative requirement b recognition extra work performed employee week end week end flexibility allowance amount specified relevant column clause 4 1 schedule 1 paid employee day work performed saturday sunday payment made irrespective whether break duty period taken particular day payment count purpose calculating employee average hour work 6 1 7additional leave residential supervisor residential assistant entitled additional leave full pay equivalent number hour worked required endeavour work four hour free duty period employee rostered day b employee required endeavour work four hour free duty period rostered day fall public holiday specified clause 7 6 award employee entitled additional leave full pay equivalent number hour payable rate specified clause c qualify leave employee must notify endeavour number extra hour worked within 2 week worked leave must applied taken within 6 week earned endeavour may require employee giving 7 day notice take part leave accrued inability employee take leave required period caused endeavour allowing time accrued leave paid end period ordinary rate employee required take leave free duty period 6 2 trainee residential supervisor residential assistant hourly basisthe ordinary hour work average 76 hour per fortnight worked within spread 14 hour commencing time 10 14 day fortnight residential supervisor residential assistant may required sleep residential day work sleep over remunerated accordance clause 5 schedule 1 count purpose calculating employee average hour work 6 3 residential manager6 3 1 ordinary hour work average 76 hour per fortnight worked within daily spread 14 hour commencing time maximum 5 day 7 day monday friday inclusive 6 3 2 spread hour stated may varied mutual agreement consultation awu qsu suit contingency position involved 6 3 3 employee day taken least one block least 2 consecutive day 6 4 overtimethe provision clause 6 5 award apply daily full time daily part time residential supervisor residential assistant lieu provision provision clause 6 1 7 schedule 1 apply daily full time daily part time residential supervisor residential assistant 6 5 meal breaks6 5 1 employee required work least 5 hour continuously day allowed unpaid meal break le 30 minute convenient time regard work requirement 6 5 2 employee residential working duty time meal taken client residential employee entitled partake meal 7 0 miscellaneous provisions7 1 provision food overnight accommodationsupport worker residential provided food overnight accommodation whilst rostered work sleep facility available person staff member rostered work except circumstance married de facto couple one required sleep 8 0 job sharing8 1 proposal job sharing selected role within endeavour considered provided proposal based remains additional cost option endeavour 8 2 employee wishing job share submit formal request area manager formal request must contain proposal particular job share work including detail division working time name resume person sharing proposed done 8 3 job sharing approved person satisfactory endeavour equal greater skill ability original staff member continuity support client affected 9 0 training education9 1 clause read conjunction clause 9 1 award 9 2 training may undertaken additional remuneration employee four hour free duty period part thereof maximum number 16 occasion per annum training conducted employee four hour free duty period excess maximum 16 occasion per annum entitle employee additional leave full pay accordance clause 6 1 7 schedule 1 9 3 training employee rostered day entitle employee additional leave full pay accordance clause 6 1 7 schedule 1 schedule 2 accomodation lifestyle support workers1 1 definition schedule 2 accommodation lifestyle support worker shall mean employee undertakes provide lifestyle support development people disability 2 1 classification structure2 1 1 employee classified accordance classification structure general descriptionan employee level required perform work beyond skill level 2 employee level training competent perform work within scope level including employee hold relevant certificate level qualification including trade certificate b trade right certificateor equivalent thereto provided employee required interact client defined shall progress beyond increment level 3 paypoint 1 hereof level employee may supervise employee lower classification level work general supervision defined use discretion within scope level working individually team environment undertake work may non routine nature subject pre set objective work assignment without limiting generality thereof supervises employee classified lower classification level client defined including checking progress co ordinating workflow accountable work work others use initiative discretion judgement planning organising work technique work employee lower classification level client defined understand use limited range non verbal communication b indicative tasksin addition task employee lower level employee level performs task level training indicative task may include accommodation independent living training service develop implement training programme client defined basic skill undertake training skill assessment client defined assist support client defined attending care using discretion judgement appropriate action higher level skill classification level participate network service provider community resource provider train client defined broad range task using range technique aid method instruct assist training disability service worker engaged lower level classification complete necessary documentation report specified workplace 3 0 wage rates3 1 1 operative date award minimum rate wage employee shall follows levelf n ratehourly ratecasual ratepaypoint 1 1 122 38 14 77 18 16paypoint 2 1 164 19 15 32 18 84paypoint 3 1 205 77 15 87 19 51note rate pay award intended include arbitrated wage adjustment payable 1 september 2004 declaration general ruling earlier safety net adjustment arbitrated wage adjustment disputed case referred vice president arbitrated wage adjustment may offset equivalent rate pay received employee whose wage condition employment regulated award wage rate prescribed award payment include wage payable pursuant certified agreement currently operating enterprise flexibility agreement queensland workplace agreement award amendment give effect enterprise agreement absorption contrary term agreement required increase made previous state wage case current statement principle excepting resulting enterprise agreement used offset arbitrated wage adjustment 3 1 2progression within level employee move one paypoint next paypoint employee worked 1976 hour 2 year whichever lesser b notwithstanding anything contained employee entitled receive wage level movement undergoing counselling regarding work performance deemed endeavour reached satisfactory performance level 4 0allowance late work4 1 1 addition ordinary rate pay late work allowance 15 shall paid employee rostered awake working hour 9 00p 7 00 4 1 2 allowance apply work performed saturday sunday public holiday extra payment apply work 4 1 3 sleepover deemed work performed determining payment early late work allowance 4 1 4 instance casual employee allowance clause calculated relevant rate pay exclusive casual loading 5 0 sleepover allowance5 1 1 employee required sleepover workplace period exceeding 8 hour period attend client requirement employee paid allowance 35 00 respect instance 5 1 2 possible additional ordinary hour work worked employee either sleepover 5 1 3 time spent sleeping counted purpose calculating employee average hour work 6 0 hour work6 1 1 ordinary hour work accommodation lifestyle support worker shall average 76 hour fortnight shall worked within daily spread 24 hour commencement time 10 14 day per fortnight hour worked basis agreed employer employee meet need client purpose clause day shall mean period 24 consecutive hour 6 1 2 employee day shall taken least one block least 2 consecutive day 6 1 3the ordinary hour work employee shall displayed roster place conveniently accessible employee least 7 day commencement day roster commences provided however roster may altered time enable service organisation carried emergency another employee absent duty schedule 3 at support worker business service supervisors1 0 classification structureemployees classified accordance classification structure 1 1 1 support stream level 1 general descriptionshall non supervisory support stream level 1 employee accountable work using discretion work general supervision employee higher level may work individually team environment may limited interaction client defined clause 1 6 3 award 1 1 2 support stream level 2 general descriptionan employee level required perform work beyond skill level 1 employee level training competent perform work within scope level level employee may undertake range activity requiring application skill knowledge higher level level 1 employee subject direct supervision may work individually team environment perform work performed within established routine method standard procedure limited scope exercise initiative us limited discretion applying work practice procedure accountable work within scope level required assist employee higher classification level specific project understand use limited range non verbal communication understanding work procedure relevant work area may provide assistance employer lower classification level concerning established procedure meet objective minor function required resolve minor work procedural issue relevant work area within established workplace constraint employee level skill training access staff higher level b indicative tasksin addition task employee lower level employee level performs task level training indicative task may include general undertakes simple training assignment client defined supervision driving public passenger vehicle licensed carry 12 passenger driving forklift similar mobile equipment driving truck vehicle requiring driving licence 4 5 gvm include licence drive articulated vehicle higher standard licence category maintain daily record result activity level ii business service wide range routine production task including without limiting generality thereof repetition work automatic semi automatic single purpose machine welding use relevant tool boiler attendance lubrication machine setting loading operation assist employee production process operate computer terminal adhere quality assurance procedure practice provide general close supervision 9 client defined undertaking work task undertake training assessment client defined specific vocational skill within scope level 1 1 3 support stream level 3 general descriptionan employee level required perform work beyond skill level 2 employee level training competent perform work within scope level including employee hold relevant certificate level qualification including trade certificate b trade right certificateor equivalent thereto provided employee required interact client defined shall progress beyond increment level 3 paypoint 1 hereof level employee may supervise employee lower classification level work general supervision defined use discretion within scope level working individually team environment undertake work may non routine nature subject pre set objective work assignment without limiting generality thereof supervises employee classified lower classification level client defined including checking progress co ordinating workflow accountable work work others use initiative discretion judgement planning organising work technique work employee lower classification level client defined understand use limited range non verbal communication b indicative tasksin addition task employee lower level employee level performs task level training indicative task may include business service schedule prioritise work disability service worker lower classification level supervise instruct assist training disability service worker classification lower level responsible accountable work disability service worker lower classification level client defined complete necessary documentation reporting supervises 10 client defined requiring general supervision defined operate safely standard undertakes training training assessment client defined specific vocational skill within scope level 1 1 4 support stream level 4 characteristic levela person employed support stream level 4 shall work general direction application procedure method guideline well established would obtained organisation industry specific knowledge sufficient give advice information organisation client relation specific area responsibility general feature level involve solving problem limited difficulty using knowledge judgement work organisational skill acquired qualification previous work experience assistance available senior employee employee may receive instruction broader aspect work addition employee may provide assistance lower classified employee position level allow employee scope exercising initiative application established work procedure may require employee establish goal objective outcome particular work programme project level employee may required supervise lower classified staff volunteer day day work employee supervisory responsibility may undertake complex operational work may undertake planning co ordination activity within clearly defined area organisation employee responsible managing planning work employee responsible managing planning work subordinate staff volunteer may required deal formal disciplinary issue within work area supervisory responsibility basic knowledge principle human resource management able assist subordinate staff volunteer job training may required supervise one component work b responsibilitiesto contribute operational objective workplace position level may include following input similar value undertake responsibility various activity specialised area exercise responsibility function within organisation allow scope exercising initiative application established work procedure assist range function contribute interpretation matter clearly established practice procedure although activity would sole responsibility employee within workplace provide secretarial administrative support requiring high degree judgement initiative confidentiality sensitivity performance work assist provide range record management service however responsibility record management service would rest employee proficient operation computer enable modification correction computer software system package identification problem level could include system administrator small medium sized organisation whose responsibility includes security integrity system apply computing programming knowledge skill system development maintenance implementation direction senior employee supervise limited number lower classified employee volunteer allow scope exercising initiative application established work procedure deliver single stream training programme co ordinate elementary service programme provide assistance senior employee prime responsibility lie specialised field employee level would undertake least following undertake minor phase broad complex assignment ii perform duty specialised nature iii provide range information service iv plan co ordinate elementary community based project programme v perform moderately complex function including social planning demographic analysis survey design analysis c requirement jobsome following needed perform work level skill knowledge experience qualification training thorough knowledge work activity performed within organisation sound knowledge procedural method organisation may utilise professional specialised knowledge working knowledge guideline statutory requirement relevant organisation ability apply computing concept prerequisite entry level would entry level three year degree b entry level four year degree c associate diploma experience advanced certificate community service experience equivalent e attained previous appointment service study equivalent level expertise experience undertake range activity required ii organisational relationship work general supervision operate member team supervision employee iii extent authority receive instruction broader aspect work freedom act within defined established procedure freedom arrange work manner employee feel comfortable provided change defined established work pattern may set outcome objective specified project problem usually solved reference procedure documented method instruction assistance available problem occur 1 1 5 support stream level 5 characteristic levela person employed support stream level 5 shall work general direction function require application skill knowledge appropriate work generally guideline work procedure established general feature level require application knowledge skill gained qualification previous experience discipline employee expected contribute knowledge establishing procedure appropriate work related field addition employee level may required supervise various function within work area activity complex nature position may involve range work function could contain substantial component supervision employee may also required provide specialist expertise advice relevant discipline work level requires sound knowledge programme activity operational policy service aspect work performed function number work area employee require skill managing time setting priority planning organising work lower classified staff volunteer supervision component position achieve specific objective employee expected set outcome develop work method general work procedure defined b responsibilitiesto contribute operational objective workplace position level may include following input similar value 1 undertake activity may require employee exercise judgement contribute critical knowledge skill procedure clearly defined 2 perform duty specialised nature requiring development expertise time previous knowledge 3 identification specific desired performance outcome 4 contribute interpretation administration area work clearly established procedure 5 expected set outcome develop work method general work procedure defined could exercise judgement contribute critical knowledge skill procedure clearly defined 6 although still general direction greater scope contribute development work method setting outcome however must within clear objective organisation within budgetary constraint 7 provide administrative support complex nature senior employee 8 exercise responsibility various function within work area 9 provide assistance grant application including basic research collection data undertake wide range activity associated programme activity service delivery 10 provide assistance senior employee planning co ordinating implementing administering activity policy including preparation budget 11 develop control administer record management service receipt custody control preservation retrieval record related material 12 undertake computer operation requiring technical expertise experience may exercise initiative judgement application established procedure practice 13 apply computer programming knowledge skill system development maintenance implementation 14 provide reference research information service technical service including facility understand develop technologically based system 15 prime responsibility lie specialised field employee level would undertake least following liaise professional technical professional level b discus technique procedure result client straight forward matter c lead team within specialised project provide reference research technical information service e carry variety activity organisation requiring initiative judgement selection application established principle technique method f perform range planning function may require exercising knowledge statutory legal requirement g assist senior employee planning co ordination community programme complex nature c requirement jobsome following needed perform work level skill knowledge experience qualification training1 knowledge statutory requirement relevant work 2 knowledge organisation policy activity 3 knowledge role organisation service function 4 specialist require understanding underlying principle discipline 5 sound discipline knowledge gained previous experience training education 6 prerequisite entry level would relevant four year degree 2 year relevant experience b 3 year degree three year relevant experience c associate diploma relevant experience lesser formal qualification substantial year relevant experience e attained previous appointment service study equivalent level expertise experience undertake range activity 7 employee undertaking specialised service shall promoted level appropriate experience undertake work related responsibility level 8 employee working sole employee shall commence level ii organisational relationships1 work general direction 2 supervises staff volunteer work specialised field iii extent authority1 required set outcome within defined constraint 2 provides specialist technical advice 3 freedom act governed clear objective budget constraint may involve contribution knowledge establishing procedure within clear objective budget constraint defined established practice 4 solution problem generally found precedent guideline instruction 5 assistance usually available 1 1 6 support stream level 6 characteristic levela person employed support stream level 6 shall work general direction senior employee employee undertake range function requiring application high level knowledge skill achieve result line organisation goal employee adhere established work practice however may required exercise initiative judgement practice direction clearly defined general feature level indicate involvement establishing organisation programme procedure position include range work function may involve supervision work may span one discipline addition employee level may required assist preparation prepare organisation budget employee level required provide expert advice employee classified lower level volunteer position level demand application knowledge gained qualification previous experience addition employee required set priority monitor work flow area responsibility may include establishing work programme small organisation employee required set priority plan organise work lower classified staff volunteer establish appropriate operational method organisation addition interpersonal skill required gain co operation client staff employee responsible project function required establish outcome achieve organisation goal specialist may required provide multi disciplinary advice b responsibilitiesto contribute operational objective workplace position level may include following input similar value 1 responsibility range function within organisation requiring high level knowledge skill 2 undertake responsibility moderately complex project including planning co ordination implementation administration 3 undertake minor phase broader complex professional assignment 4 assist preparation prepare organisation programme budget liaison management 5 set priority monitor work flow area responsibility 6 provide expert advice employee classified lower level volunteer 7 exercise judgement initiative procedure clearly defined 8 understanding area computer operation enable provision advice assistance non standard procedure process required 9 monitor interpret legislation regulation agreement relating occupational health safety worker compensation rehabilitation 10 undertake analysis design development maintenance project undertake programming specialist area may exercise responsibility specialised area computing operation 11 undertake publicity assignment within framework organisation publicity promotion programme assignment would limited scope complexity would involve co ordination facet total programme including medium liaison design layout publication display editing 12 operate specialist employee relevant discipline decision made taken rest employee reference senior employee 13 undertake duty require knowledge procedure guideline statutory requirement relevant organisation 14 plan co ordinate implement administer activity policy including preparation budget 15 develop plan supervise implementation educational developmental programme client 16 plan co ordinate administer operation multi functional service including financial management reporting 17 prime responsibility lie professional service employee level would undertake least following general direction undertake variety task specialised detailed nature b exercise professional judgement within prescribed area c carry planning study research particular project including aspect design formulation policy implementation procedure presentation provide report progress programme activity including recommendation e exercise high level interpersonal skill dealing public organisation f plan develop operate community service organisation moderately complex nature c requirement jobsome following needed perform work level skill knowledge experience qualification training1 knowledge organisational programme policy activity 2 sound discipline knowledge gained experience 3 knowledge role organisation structure service 4 pre requisite entry level would relevant degree relevant experience b associate diploma substantial experience c qualification one discipline le formal qualification specialised skill sufficient perform level e attained previous appointment service study equivalent level experience expertise undertake range activity required ii organisational relationshipswork general direction supervise employee volunteer iii extent authority1 exercise degree autonomy 2 control project programme 3 set outcome lower classified staff 4 establish priority monitor work flow area responsibility 5 solution problem generally found documented technique precedent guideline instruction assistance available required 1 1 7 support stream level 7 characteristic levela person employed support stream level 7 shall operate limited direction senior employee management undertake range function operational policy practice guideline may need developed general feature level allow employee scope influence operational activity organisation would require employee involved establishing operational procedure impact upon organisation section community served employee level expected contribute management organisation section thereof assist prepare budget establish procedure work practice employee involved formation programme work practice required provide assistance expert advice employee employee may required negotiate matter behalf organisation position level require responsibility decision making particular work area provision expert advice employee required provide consultation assistance relevant work place employee required set outcome work area responsible achieve objective organisation may required undertake control co ordination programme project significant work area employee require good understanding long term goal organisation employee may exercise managerial responsibility work independently specialist may senior member single discipline project team provide specialist support range programme activity position level may identified impact activity undertaken achievement stated outcome objective workplace level responsibility decision making exercise judgement delegated authority provision expert advice managing time essential outcome achieved high level interpersonal skill required resolve organisational issue negotiate contract develop motivate staff employee required understand implement effective staff management personnel practice b responsibilitiesto contribute operational objective work area position level may include following input similar value 1 undertake significant project function involving use analytical skill 2 undertake managerial specialised function wide range condition achieve result line organisation goal 3 exercise managerial control involving planning direction control evaluation operation include providing analysis interpretation either major single multi specialist operation provide advice matter complexity within work area specialised area 4 undertake range duty within work area including develop work practice procedure problem definition planning exercise judgement provide advice policy matter contribute development 5 negotiate matter significance within organisation body member public 6 control co ordinate work area larger organisation within budgetary constraint 7 exercise autonomy establishing operation work area provide consultancy service range activity wide range client 8 prime responsibility lie specialised field employee level would undertake least following provide support range activity programme b control co ordinate project c contribute development new procedure methodology provide expert advice assistance relevant work area e supervise manage operation work area monitor work outcome f supervise occasion specialised staff g supervise manage operation discrete element part larger organisation h provide consultancy service range activity c requirement jobsome following needed perform work level skill knowledge experience qualification training1 comprehensive knowledge organisation policy procedure 2 specialist skill supervision management ability exercised within multi disciplinary major single function operation 3 specialist knowledge gained experience training education 4 appreciation long term goal organisation 5 detailed knowledge programme activity work practice relevant work area 6 knowledge organisation structure function 7 comprehensive knowledge requirement relevant discipline 8 pre requisite entry level would degree substantial experience b post graduate qualification c associate diploma substantial experience attained previous appointment service study combination experience expertise competence sufficient perform duty required level ii organisational relationships1 work limited direction senior employee committee management board 2 supervision staff iii extent authority1 exercise degree autonomy 2 may manage work area medium large organisation multi worksite organisation 3 significant delegated authority selection method technique based sound judgement 4 manage significant project function 5 solution problem generally found documented technique precedent instruction advice available complex unusual matter 1 1 8 support stream level 8 characteristic levela person employed support stream level 8 shall operate limited direction exercise managerial responsibility various function within section organisation operate specialist member specialised professional team independently general feature level require employee involvement establishing operational procedure impact activity undertaken outcome achieved organisation activity undertaken section community served organisation employee involved formation establishment programme procedure work practice within organisation required provide assistance employee section position level demand responsibility decision making provision expert advice area organisation employee would expected undertake control co ordination organisation major work initiative employee require good understanding long term goal organisation addition position level may identified level responsibility decision making exercise judgement delegated authority provision expert advice management staff normally feature level employee required set outcome relation organisation may required negotiate matter behalf organisation b responsibilitiesto contribute operational objective work area position level may include following input similar value 1 undertake managerial specialised function wide range condition achieve result line divisional corporate goal 2 exercise managerial control involving planning direction control evaluation operation include providing analysis interpretation either major single discipline multi discipline operation 3 develop work practice procedure various project 4 establish work area outcome 5 prepare budget submission senior officer organisation 6 develop implement significant operational procedure 7 review operation determine effectiveness 8 develop appropriate methodology apply proven technique providing specialised service 9 prime responsibility lie professional field officer level control co ordinate project programme within organisation accordance corporate goal b provides consultancy service wide range client c function may involve complex professional problem solving provides advice policy method contributes development c organisational relationships1 work limited direction 2 normally supervises employee establishes monitor work outcome extent authority1 may manage section organisation 2 significant delegated authority selection method technique based sound judgement guidance always readily available within organisation decision action taken level may significant effect programme project work area managed e requirement jobsome following needed perform work level skill knowledge experience qualification training1 comprehensive knowledge policy procedure 2 application high level discipline knowledge 3 qualification generally beyond required tertiary education alone typically acquired completion higher education qualification degree level extensive relevant experience lesser formal qualification acquisition considerable skill extensive relevant experience equivalent standard 4 combination experience expertise competence sufficient perform duty required level 2 0 wage rates2 1 operative date award minimum rate wage employee covered schedule 3 fortnightly hourly casual level 1paypoint 1 968 19 12 7393 15 6694paypoint 2 993 19 13 0683 16 0740paypoint 3 1 013 19 13 3314 16 3977level 2paypoint 1 1 051 58 13 8366 17 0190paypoint 2 1 076 58 14 1655 17 4236paypoint 3 1 101 77 14 4970 17 8313level 3paypoint 1 1 122 38 14 7682 18 1648paypoint 2 1 164 19 15 3183 18 8415paypoint 3 1 205 77 15 8654 19 5144level 4paypoint 1 1 246 85 16 4059 20 1793paypoint 2 1 288 77 16 9575 20 8577paypoint 3 1 330 58 17 5076 21 5344paypoint 4 1 372 42 18 0582 22 2115level 5paypoint 1 1 414 27 18 6088 22 8888paypoint 2 1 456 12 19 1595 23 5662paypoint 3 1 497 96 19 7100 24 2433paypoint 4 1 535 88 20 2089 24 8570level 6paypoint 1 1 577 69 20 7591 25 5337paypoint 2 1 615 54 21 2571 26 1462paypoint 3 1 657 38 21 8076 26 8234level 7paypoint 1 1 815 58 23 8892 29 3837paypoint 2 1 841 69 24 2328 29 8063paypoint 3 1 899 58 24 9945 30 7432level 8paypoint 1 1 944 58 25 5866 31 4715paypoint 2 1 989 54 26 1782 32 1991paypoint 3 2 034 54 26 7703 32 9274note rate pay award intended include arbitrated wage adjustment payable 1 september 2004 declaration general ruling earlier safety net adjustment arbitrated wage adjustment disputed case referred vice president arbitrated wage adjustment may offset equivalent rate pay received employee whose wage condition employment regulated award wage rate prescribed award payment include wage payable pursuant certified agreement currently operating enterprise flexibility agreement queensland workplace agreement award amendment give effect enterprise agreement absorption contrary term agreement required increase made previous state wage case current statement principle excepting resulting enterprise agreement used offset arbitrated wage adjustment 2 2progression within level employee move one paypoint next paypoint employee worked 1976 hour 2 year whichever lesser b notwithstanding anything contained employee entitled receive wage level movement undergoing counselling regarding work performance deemed endeavour reached satisfactory performance level 3 0 hour work3 1employees farmingthe ordinary hour work employee engaged classification related solely mainly type work shall exceed 10 hour per day 76 hour per fortnight excluding meal break worked 6 00 6 00 p 10 14 day fortnight ordinary starting ceasing time day upon work shall performed shall agreed employer majority employee involved 3 2farming ordinary hour work employee engaged classification related solely mainly type work shall exceed 10 hour excluding meal break worked 5 00 8 00 p 10 14 day fortnight ordinary starting finishing time day upon work shall performed shall agreed employer majority employee involved schedule 4 training placement workers1 1 classification structure wage rates1 1 1 training development officer employment consultant trainee level definition training development officer employment consultant trainee level shall mean employee training become level 2 employee b requirement employee required assist level employee person assist training placement employee assist client assessment activity preparation training curriculum plan duty directed higher level employee 1 1 2 training development officer employment consultant level 2 definition training development officer employment consultant level 2 shall mean multi functioned employee engaged provide direct service participant training course placement support service programme activity provided employer b requirement employee would required assist development administration programme may include arranging conducting training course preparation training curriculum plan client assessment activity preparation individual client service programme conduct employment placement support service activity may exercise organising function respect sessional employee training placement level 1 employee may expected participate process evaluate course programme effectiveness relevance monitor review individual client service programme monitor report advise client outcome carry case management function duty ii training placement level 1 employee required exercise professional judgement within policy parameter employer may also required write report assist preparation funding proposal liaise market employer industry community participate co ordination activity agency refer client appropriate agency programme carry client placement activity iii employee engaged conduct job club primarily market service client employer would normally engaged training placement level 2 however size organisation level complexity within role may see placed within training placement level 3 definition classification job club leader responsible management co ordination service engaged accordance training placement level 3 classification 1 1 3 senior training development officer level 3 definition senior training development officer level 3 mean person engaged assist themanager larger complex service management part service whose responsibility primarily involve management co ordination function b requirement training placement level 3 employee shall case report manager organisation ii officer shall required assist management service within policy parameter employer may also required develop policy proposal report consideration employer funding authority may also expected assist manager develop implement strategy ensure community business support service iii employee may required co ordinate development implementation evaluation programme service employer including preparation funding proposal budget behalf employer monitoring programme performance budget would expected exercise staff leadership role supervise employee service may include co ordination induction new employee training human resource development strategy co ordination work task responsibility may expected represent employer dealing local employer government community agency dealing local medium iv training placement level 3 employee may also expected deliver training course client service undertake placement support operational duty though responsibility would form major part employee job 1 1 4 training development manager level 4 definition training development manager level 4 mean person engaged manage operation small medium size service total weekly staffing service le 285 hour b requirement training development manager level 4 employee may directly exercise delegated management function employer ii officer shall required manage service within policy parameter employer may required develop policy proposal report consideration employer funding authority may also expected develop implement strategy ensure community business support service iii employee may required co ordinate development implementation evaluation programme service employer including preparation funding proposal budget behalf employer monitoring programme performance budget would expected exercise staff leadership role supervise employee service may include co ordination induction new employee training human resource development strategy co ordination work task responsibility would expected represent employer dealing local employer government community agency dealing local medium iv training development manager level 4 employee service total weekly staffing including 190 staffing hour may advance beyond paypoint 4 1 1 5 employment agency manager level 5 definition employment agency manager level 5 shall mean employee engaged manage single service multiple project sponsored employer total weekly staffing excess 285 staffing hour ii person engaged manage skillshare disability access support unit b requirement function would generally similar training development manager level 4 except position would involve significantly increased responsibility result size complexity service manage may also required supervise work training development manager level 4 senior training development officer level 3 employment consultant level 2 trainee consultant level 1 employee employee employed employer 2 0 wages2 1 minimum rate wage paid undermentioned level employee shall follows training development officer employment consultant traineef n rate hourly rate casual ratepaypoint 1 1 241 27 16 3325 20 0890paypoint 2 1 284 77 16 9049 20 7930paypoint 3 1 328 27 17 4772 21 4970training development officer employment consultant level 2f n rate hourly rate casual ratepaypoint 1 1 371 81 18 0501 22 2017paypoint 2 1 415 31 18 6225 22 9057paypoint 3 1 458 81 19 1949 23 6097paypoint 4 1 502 31 19 7672 24 3137paypoint 5 1 541 81 20 2870 24 9530senior training development officer level 3f n rate hourly rate casual ratepaypoint 1 1 541 81 20 2870 24 9530paypoint 2 1 585 31 20 8593 25 6570paypoint 3 1 624 81 21 3791 26 2963paypoint 4 1 668 31 21 9514 27 0003training development manager level 4f n rate hourly rate casual ratepaypoint 1 1 541 81 20 2870 24 9530paypoint 2 1 585 31 20 8593 25 6570paypoint 3 1 624 81 21 3791 26 2963paypoint 4 1 668 31 21 9514 27 0003paypoint 5 1 711 81 22 5238 27 7043paypoint 6 1 755 31 23 0962 28 4083employment agency manager level 5f n rate hourly rate casual ratepaypoint 1 1 798 85 23 6691 29 1130paypoint 2 1 842 35 24 2414 29 8170paypoint 3 1 885 85 24 8138 30 5210paypoint 4 1 929 35 25 3862 31 2250paypoint 5 1 972 85 25 9586 31 9290note rate pay award intended include arbitrated wage adjustment payable 1 september 2004 declaration general ruling earlier safety net adjustment arbitrated wage adjustment disputed case referred vice president arbitrated wage adjustment may offset equivalent rate pay received employee whose wage condition employment regulated award wage rate prescribed award payment include wage payable pursuant certified agreement currently operating enterprise flexibility agreement queensland workplace agreement award amendment give effect enterprise agreement absorption contrary term agreement required increase made previous state wage case current statement principle excepting resulting enterprise agreement used offset arbitrated wage adjustment 2 1 2 progression within level employee move one paypoint next paypoint employee worked 1976 hour 2 year whichever lesser b notwithstanding anything contained employee entitled receive wage level movement undergoing counselling regarding work performance deemed endeavour reached satisfactory performance level 3 0 hour workthe ordinary hour work prescribed may worked ten fourteen day week monday sunday inclusive shall exceed 10 hour per day 76 hour per fortnight excluding meal break worked 6 00 8 00 p ordinary starting ceasing time day upon work shall performed shall agreed employer majority employee involved mutual agreement employer employee client requiring support work outside spread hour party may agree alter spread hour accommodate client request penalty shall apply schedule 5 retail employees1 0 definition schedule 51 1 employee shall taken mean include person wage rate prescribed award 1 2 junior employee shall mean employee trainee defined clause 6 6 award age twenty one 21 year excepting employee engaged cleaning watching gatekeeping lift attendant duty 1 3 senior employee shall mean shop assistant clerk male female twenty one 21 year age provided shop assistant twenty one 21 year age received le rate wage prescribed award employee age twenty one 21 year shall regarded senior employee 1 4 non exempt shop shall mean shop exempt shop independent retail shop 1 5 storeman packer shall mean employee principally engaged reception storing packing good sale retail 1 6 storeman charge shall mean senior storeman supervision direction le two employee 2 0 classification structure wage rates2 1 shop assistant classification structure shop assistant 92 14 shall mean employee engaged reception sale delivery hand good sale retail hire wherever employed 2 2 first level supervisor 94 5 shall mean employee appointed employer responsible defined designated area shop employee may work alone directly supervise employee defined designated area 2 3 second level supervisor shop manager 100 shall mean employee appointed employer charge number defined designated area shop charge shop 2 4 wage rates2 4 1 operative date award minimum rate wage paid undermentioned class employee shall follows shop assistant f n rate classification relativityshop assistant 92 14 shop assistant 1052 80first level supervisor 94 5 section head 1072 60second level supervisor shop manager 100 department managermanager 2 le employeesmanager 2 employee 1122 402 4 2 junior ratesthe minimum rate pay junior employee shall determined applying following percentage shop assistant rate reference shop assistant rateunder 16 year age 45 16 17 year age 50 17 18 year age 55 18 19 year age 65 19 20 year age 75 20 21 year age 85 note rate pay award intended include arbitrated wage adjustment payable 1 september 2004 declaration general ruling earlier safety net adjustment arbitrated wage adjustment disputed case referred vice president arbitrated wage adjustment may offset equivalent rate pay received employee whose wage condition employment regulated award wage rate prescribed award payment include wage payable pursuant certified agreement currently operating enterprise flexibility agreement queensland workplace agreement award amendment give effect enterprise agreement absorption contrary term agreement required increase made previous state wage case current statement principle excepting resulting enterprise agreement used offset arbitrated wage adjustment 3 0 hour work3 1 1 ordinary hour work employee engaged classification related solely mainly type work shall exceed 76 hour two consecutive week shall worked 5 day week ordinary daily working hour shall exceed eight half hour one day exclusive meal break ad shall worked 7 00 6 00pm 9 00pm late night shopping monday friday 7 00am 12 30pm saturday 3 1 2late night work non exempt shop ordinary hour worked weekly part time employee 6 00 p part employee ordinary working week day permitted late night trading shall paid rate quarter time addition ordinary weekly wage proportion thereof 3 1 3 permitted day late night trading weekly employee work eight half hour part employee ordinary working week part time employee required work overtime excess 30 minute shall required continue work ordinary hour overtime hour case may beyond 6 45 p paid meal allowance 9 60 payment meal allowance may included employee wage shall shown pay slip separate item 3 2saturday work employee casuals shall paid addition ordinary rate pay loading fifty per cent ordinary hour worked saturday 3 3sunday work non exempt shop ordinary hour worked weekly part time employee sunday shall paid rate seventy five percent ordinary hourly rateschedule 6 supported employees1 area operation1 1 schedule 6 govern wage condition employment people intellectual disability engaged endeavour performance work supported employment business enterprise business service 1 2 acknowledged business service covered award general rule operate purely commercial business rather business service operate employment like environment range additional support service provided worker including vocationally related training work experience assistance progression open employment possible thus primary relationship exists endeavour employee disabled extends beyond generally expected typical common law employment relationship 2 classification structure rate pay2 1classification structure2 1 1grade 1 shall mean employee minimal skill undertakes basic routine task essentially manual nature level training employee would exercise minimal judgment would closely supervised carrying task indicative task basic cleaning within kitchen food preparation area including cleaning dish utensil basic stacking component sweeping cleaning machine use cutting rag useable piece labouring sorting packing labelling clipping assembly document preparation routine basic assembly task wrapping folding stamping counting gluing customer liaison palletising tea making2 1 2grade 2 shall mean employee work beyond skill grade 1 employee employee work direct supervision either individually team environment indicative task repetitive work machine assembles component using basic written instruction basic soldering us selected hand tool storing packing good using hand trolley pallet truck cleaning packaging labelling collating manufacture component assembles finish product clerical routine office duty including basic typing checking figure matching document simple calculating collating sorting filing photocopying handling mail labouring sorting timber undercoat painting mixing 2 pac glue lifting correct use ppe equipment counting basic gardening duty understanding quality control2 1 3grade 3 shall mean employee work beyond skill grade 2 employee employee responsible work would work routine supervision indicative task operates machinery equipment requiring skill knowledge beyond grade 2 operation forklift non trade engineering skill receiving despatching distributing sorting checking documenting recording good material component general clerical office duty typing operating switchboard basic data entry nail gun work sewing cutting timber painting propagation gardening complex packaging including weighing measuring 2 1 4grade 4 shall mean employee work beyond skill grade 3 employee employee able understand detailed instruction work procedure employee would work minimal supervision indicative task licensed operation appropriate material handling equipment machine settling loading operating general welding as1554 standard basic level lubrication production machinery equipment complex painting timber using machine complex cutting timber using machine operates gardening machinery landscape gardening supervision delivery good dispatch work2 2 rate payper week grade 1 448 40grade 2 465 10grade 3 487 80grade 4 508 50the rate pay award intended include arbitrated wage adjustment payable 1 september 2004 declaration general ruling earlier safety net adjustment arbitrated wage adjustment disputed case referred vice president arbitrated wage adjustment may offset equivalent rate pay received employee whose wage condition employment regulated award wage rate prescribed award payment include wage payable pursuant certified agreement currently operating enterprise flexibility agreement queensland workplace agreement award amendment give effect enterprise agreement absorption contrary term agreement required increase made previous state wage case current statement principle excepting resulting enterprise agreement used offset arbitrated wage adjustment 3 wage rate employee disabilities3 1 employee disability paid percentage rate employee grade equal capacity employee assessed percentage capacity employee disabled 3 2 subject clause 7 schedule 1 july 2005 date commencement award whichever latter employee disability paid follows 3 2 1 capacity employee disability assessed endeavour accordance endeavour method assessment endeavour ensure method assessment satisfies requirement contained relevant legislation thedisability service act 1986 amended 3 2 2 employee capacity converted percentage capacity employee disabled 3 2 3 percentage determined appropriate rate pay adjusted follows le 5 5 5 le 10 10 10 le 15 15 15 le 20 20 20 le 25 25 25 le 30 30 30 le 35 35 35 le 40 40 40 le 45 45 45 le 50 50 50 le 55 55 55 le 60 60 60 le 65 65 65 le 70 70 70 le 75 75 75 le 80 80 80 le 85 85 85 le 90 90 90 le 95 95 95 le 100 100 3 2 4 percentage adjusted rate specified clause 2 1 schedule employee actual rate pay 3 3 consultation review3 3 1 consultation take place endeavour union ensure additional cost resulting wage superannuation increase employee disability jeopardise operation endeavour prevent restrict recruitment future employee 3 3 2 party acknowledge additional cost incurred supported employment business enterprise related ongoing support training need people disability additional cost taken account future negotiation 3 3 3 party committed achieving principle objective thedisability service act 1986 amended 4 trial employment contract4 1 order adequate assessment employee capacity made employee may employed trial employment contract period exceeding 3 month except additional work adjustment time necessary exceeding 4 week 4 2 trial period assessment capacity undertaken proposed wage rate continuing employment relationship determined 4 3 minimum rate payable employee trial period le 5 grade 1 based 38 hour week orpro ratafor le 38 hour 4 4 work trial include induction training appropriate job trialled 4 5 endeavour employee wish establish continuing employment relationship following completion trial period contract employment entered based outcome assessment clause 3 schedule 5 progressive procedure5 1 every employee undertake review regular basis ascertain whether capacity improved warrant upgrading higher grade 6 regression procedure6 1 existing employee assessed assessment identifies employee regressed capacity level would result employee wage reduced following procedure followed 6 1 1 employee advised result level corresponds assessed capacity 6 1 2 employee may seek second assessment carried result identify employee regressed employee remain existing level employee capacity regressed employee transferred lower paid duty 6 1 3 disagreement regarding matter either party right resolve matter accordance clause 3 1 grievance dispute settling procedure award 7 transitional arrangement7 1 accordance thedisability service act 1986 amended disability service standard regarding wage phase service amended endeavour consult commonwealth department family community service department develop plan reflects commitment progress within timeframe agreed department towards paying full amount wage rate contained clause 2 1 schedule 7 2 endeavour ensure whatever transitional arrangement implemented accordance clause result employee disability covered award receiving full amount wage rate clause 2 1 schedule 6 later 1 january 2009 dated 6 june 2005 commission l g savill industrial registrar operative date 6 june 2005repeal industrial agreement new award endeavour foundation enterprise award state 2005released 1 july 2005

Beer v GIO [1998] VCAT 325 (1 October 1998).txt

beer v gio 1998 vcat 325 1 october 1998 last updated 17 may 2000in victorian civil andno 1997 87161administrative tribunaladministrative divisiongeneral listat melbourneapplicant kevin michael beerrespondent gio worker compensation vic ltdbefore senior member b mccarthydate decision day july 1998decisionthe decision tribunal 1 application review dismissed 2 decision respondent affirmed 3 applicant pay respondent cost taxed default agreement party county court scale b mccarthysenior memberin victorian civil andno 1997 87161administrative tribunaladministrative divisiongeneral listat melbourneapplicant kevin michael beerrespondent gio worker compensation vic ltdbefore senior member b mccarthydate decision day july 1998reasons decisionthis application kevin michael beer review decision respondent gio worker compensation vic ltd made 24 december 1996 reject claim benefit pursuant 99 theaccident compensation act1985 apparently applicant completed claim form 30 october 1996 received respondent 12 november 1996 achieved validity service upon respondent 26 november 1996 medical certificate issued dr wignall applicant referred dispute conciliation without resolution conciliator issued certificate effect 9 november 1997 application review filed tribunal 10 december 1997 applicant gave evidence oath solicitor prepared detailed statement support application review one day hearing commenced sworn handed copy statement adopted true correct admitted evidence marked exhibit applicant aged 42 year married employed moonee valley racing club since 1971 originally casual labourer driver remained category approximately 11 year following four year employed permanent basis worked since september 1996 job included cleaning stable assisting track maintenance driving truck required working race day approximately 7 40am informed racecourse manager wished see office surprised interviewed manager six occasion course employment occasion disciplined reason proceeding office mr trevethan racecourse manager invited seated trevethan informed received complaint conduct tabaret situated within land owned moonee valley racing club marie braden duty manager tabaret complained trevethan sexually harassed member staff tabaret trevethan warned go back tabaret although felt basis allegation whilst pointed finger felt warning official black mark requested detail allegation trevethan would give claimed requested trevethan investigate allegation properly refused applicant claimed told trevethan upset matter arising work brought workplace impression event matter resolved claimed statement consequence meeting felt severe mental stress allegation serious could constitute ground dismissal paragraph 8 statement explained reason belief matter resolved attended tabaret evening 18 september 1996 evening informed michael scholz bouncer tabaret complaint made conduct effect sexually harassing member staff informed scholz would leave tabaret father father female companion would coming back claimed continued remain state distress tinnitus flared result interview took place friday reported work following monday 23 september 1996 felt sick unable continue result went sick leave entitlement expired took annual leave consent trevethan period made number attempt union delegate obtain detail allegation resolve matter resulted meeting moonee valley racing club attended member family union representative peter smoljko robert maderas meeting took place 9 october 1996 productive failed obtain detail allegation made 23 september 1996 saw dr wilson highpoint extended care centre gave certificate following day saw dr chmielewski regular general practitioner prescribed sleeping tablet referred psychologist saw dr chmielewski 1 15 october 1996 sleeping tablet prescribed provided medical certificate 29 october 1996 saw dr david wignall first time continued treat since date applicant cross examined length counsel respondent proved evasive argumentative unsatisfactory witness filed application review 10 december 1997 first direction hearing 9 december 1998 pointed necessary file comprehensive statement support application adjourned direction hearing 10 march 1998 give time day filed statement dated 6 march 1998 significant view first paragraph statement alleged 20 september 1996 requested attend office trevethan hear written complaint made moonee valley tabaret alleging sexually harassed female worker also employed moonee valley racing club outside working hour denied allegation claimed trevethan interested say although remained work day distressed allegation entered detailed description event occurred 23 september 1996 29 october 1996 without referral event occurred prior 20 september 1996 particularly incident occurred 18 september 1996 tabaret infatuation waitress employed addition made signed lengthy statement 9 december 1996 andrew burn investigator employed r wilson associate report investigator filed respondent part 36 statement therefore material respondent considered reaching decision also material considered reviewing decision report included applicant statement made presence sister arlene apparently arranged interview take place home maidstone interview also seems taken place consent thomas egan acting applicant solicitor shortly cross examination began transpired 18 september 1996 confronted moonee valley tabaret bouncer security officer michael scholz alleged waitress employed tabaret complained conduct sexually harassed statement claimed leaving time although disputed allegation requested detail scholz advised stay away premise would end matter scholz provided detail complaint plastering card letter conduct continued period six month agreed counsel attracted reacting advance towards written card although asked date twice refused although never told interested however conceded told take raincheck worried refusal denied ever sat tabaret restaurant staring hour time attempting make eye contact agreed liked going tabaret bet drink occasion went working claimed never alleged gone tabaret annoyed shown statement made burn claimed agree burn altered asked read excused witness box allowed read statement outside tribunal return witness box alleged page 8 statement correct sister left approximately quarter hour interview concluded taken page 5 counsel denied told burn warning given trevethan friendly one told appeared page 5 19 september 1996 worked day felt duress bouncer situation specifically draw attention error statement although page 2 4 covered number incident occurred period month attempted relationship waitress kate included incident occurred august 1996 asked leave tabaret duty manageress informed staff complained harassing asked name staff member informed marie asked leave premise occasion applicant stood allow dr cole give evidence return cross examined particularly statement worked duress 19 september 1996 claimed incorrect although conceded may told burn felt duress day also stated cross examination accused sexual harassment prior 18 september 1996 cross examination interview trevethan conceded trevethan told discussion confidential best interest stay away tabaret however could recall trevethan informing although complaint nothing work moonee valley racing club expected follow club code behaviour denied trevethan informed trying give common sense advice waitress tabaret trained pleasant customer alleged informed trevethan wanted apology tabaret father father friend conceded told trevethan thought people get applicant consulted dr chmielewski 24 september 1996 complaining insomnia loss appetite inability concentrate inability continue work due anxiety depression condition direct result alleged false allegation sexual harassment work felt co worker management accusing harassing woman worked told dr chmielewski physical contact woman involved contact restricted friendly gesture initiated woman occasional conversation led development friendship diagnosed stress anxiety apparently saw two later occasion report applicant complaint treatment refer dr wignall applicant consulted recommendation sister dr wignall gave evidence general practitioner practising counsellor specialist training interest lie stress management emotional problem completed number short course area hypnotherapy mind body management first saw applicant 29 october 1996 approximately five week interview trevethan presented agitated depressed complaining sleep disturbance weight loss dr wignall diagnosed stress caused allegation sexual harassment approximately one month previously subsequent meeting employer applicant accompanied sister one according medical report dr chmielewski 20 february suffers paranoid schizophrenia dr wignall formed view patient symptom associated initial event scholz escorted tabaret subsequent conversation trevethan view significant contributing factor patient informed felt relationship employer ongoing still punished denial particular sexual harassment claim also caused significant distress although ultimately obtained detail delay significant symptom begun improve obtained detail view dr p cohen psychiatrist examined applicant behalf respondent 11 december 1996 put rejected confident diagnosis opinion seen 50 occasion cross examination conceded qualified psychiatrist felt able make psychiatric assessment history obtained concluded applicant reacted stress course employment relied entirely upon veracity patient reaching conclusion far aware allegation sexual harassment first raised tabaret followed meeting trevethan applicant informed trevethan advised stay away tabaret regard interview friendly warning aware applicant subsequent numerous attempt obtain detail allegation felt may got confused message friendly warning could contributed stress conceded initially given applicant certificate remain work begun give workcover certificate 19 november 1996 could advance reason tribunal change attention drawn counsel respondent history recited medical report 17 march 1997 particular paragraph 3 stated sense emotional distress upset continued began ask tell story allegation sexual harassment made last year female worker tabaret moonee valley course described become infatuated shown friendly person made several attempt initiate sort relationship unsuccessful told felt attempt misconstrued constitute harassment told subsequent proceeding alleged harassment part set bigger picture agreed counsel patient become romantically interested informed left note girl car window driving past mother home seeing car however unaware allegation applicant sitting tabaret hour time attempting make eye contact get impression stalking conceded applicant developed siege mentality aware incident tabaret 18 september 1996 concluded interview trevethan significant advance particular reason conclusion obtained history event occurred previous six month dr wignall supportive patient advanced compelling reason considered interview trevethan resulted emotional distress addition knowledge applicant attempt form relationship female worker tabaret period six month prior september 1996 limited say least also add conceded cross examination broach subject allegation sexual harassment detail march 1997 may inferred report explained time able discus allegation circumstance seems even extraordinary issued workcover certificate november 1996 dr edward cole consultant psychiatrist seen applicant request solicitor 23 april 1998 prepared medical report admitted evidence supplied copy medical report dr chmielewski dr wignall informed merely glanced preferred obtain history history unfortunately contained reference incident 18 september 1996 event preceding six month usual urbane confident manner diagnosed anxiety state reactive depression caused allegation made applicant trevethan cross examination counsel respondent informed earlier incident occurred 18 september 1998 scholz dismissive importance applicant mentioned incident also opined applicant thought matter end conversation scholz latter meeting trevethan significant cross examined length ultimately conceded accusation sexual harassment could traumatic may involve reaction also conceded applicant statement burn particularly second last paragraph page 4 correct applicant reacted significantly accusation made scholz never found dr cole satisfactory witness past found opinion little assistance based deficient history despite belated valiant effort part uphold opinion initially expressed great deal material filed respondent 36 statement support decision deny liability make payment pursuant 99 theaccident compensation act included detailed signed statement waitress kate hall employed moonee valley tabaret detailing number incident involving applicant period approximately six month leading incident tabaret 18 september 1996 statement dated 15 october 1996 version made quite clear applicant interested advance become frightened pursuit called give evidence either party michael scholz also made statement 25 october 1996 interview applicant tabaret 18 september 1996 alleged informed applicant hall complaint watching constantly put disturbing letter motor car followed home alleged applicant agreed complaint true 18 september 1996 marie braden duty manager tabaret made lengthy statement complaint made kate hall regarding applicant conduct towards including leaving rather disturbing note upon car followed home applicant staring course duty alleged spoken applicant complaint time prior 18 september 1996 informed understood complaint would cause trouble 18 september 1996 hall complained applicant sitting staring tabaret three hour making feel uncomfortable explained situation scholz requested see applicant left premise also called give evidence applicant copy statement reasonable assumption well aware hall feeling towards well 18 september 1996 evening reprimanded cause scholz admission wignall infatuated young woman 20 year respond advance unmarried aged 40 difficult accept claim upset rejection conduct evening 18 september 1996 true suggests opposite caution warning scholz could done little improve emotional state doubt statement made burn state mind 19 september 1996 correct word sprung knew also knew number people aware conduct reaction hall little wonder view felt emotionally upset interview trevethan may final straw although accept person described dr cole probably emotionally insecure somewhat ingenuous event accept applicant version found statement burn disciplinary action taken trevethan reasonable justifiable constituted friendly warning significant factor development injury alleges arose course employment stated previously respondent entitled take various statement person mentioned account determining whether applicant suffered injury within meaning 82 1 theaccident compensation act1985 also entitled take material consideration review decision least material corroborated applicant evidence material corroborated statement made mr burn accept substantially correct final analysis come conclusion applicant man little credibility whose version event stand reasonable scrutiny designed suggest tribunal one event occurred 20 september 1996 led immediate development nervous depressed state resulting continuing medical treatment next 2 year inability work prepared accept opinion expressed dr wignall based solely upon veracity history applicant gave already commented prepared accept opinion dr cole based upon minimal flawed history obtained applicant circumstance dismiss application review affirm decision respondent theadministrative appeal tribunal actwas repealed 1 july 1998 included 99a dealt question cost application presently however application issued repeal legislation consider bound deal question cost accordance 99a formerly stood without discretion matter applicant must therefore pay cost respondent taxed default agreement party county court scale even incorrect entitled deal question cost matter within discretion would still make order c e r f c ei certify preceding 16 page true correct copy reason decision mr brian mccarthy senior member victorian civil administrative tribunal registrarappearancesfor applicant mr j searle instructed toth cofor respondent mr j desmond instructed hentyjepson kellydates hearing 21 22 july 1998

Pointer v Local Government Association Workers Compensation Scheme (City of Holdfast Bay) [2007] SAWCT 28 (8 June 2007).txt

pointer v local government association worker compensation scheme city holdfast bay 2007 sawct 28 8 june 2007 last updated 27 june 2007pointer v local government association worker compensation scheme city holdfast bay 2007 sawct 28workers compensation tribunal sa pointer christophervlocal government association worker compensation scheme city holdfast bay jurisdiction judicial determinationfile 8196 2005hearing date 22 23 november 2006 26 27 28 february 2007 1 march 30 april 1 23 24 may 2007judgment honour president judge wd jenningsdelivered 8 june 2007catchwords judicial determination council worker part tree team experienced soreness back driving water truck council accepted worker compensation claim determined level average weekly earnings worker put graduated return work plan breach obligation mutuality claimed determination weekly payment compensation discontinued determination particularised date worker attended work performed duty analysis evidence revealed worker compliance plan video surveillance extensive evidence medical expert lay witness presented ultimate finding medical lay video evidence dealt found assertion breach mutuality basis alleged breach worker obligation cannot stand lengthy hearing issue determination subject preliminary point determination tribunal determination set aside s 36 1 36 1a f 36 3 worker rehabilitation compensation act 1986 reg 7 worker rehabilitation compensation general regulation 1999mitsubishi motor australia ltd v jones unreported full supreme court south australia judgment number s3514 delivered 31 july 1992 project blue sky inc or v australian broadcasting authority 1998 hca 28 1998 194 clr 355gaeta v workcover corporation hih worker compensation pty ltd gaeta construction pty ltd 1999 sawct 136coca cola amatil v kartsonis 1996 sawct 16representation counsel applicant mr j warrenrespondent mr doylesolicitors applicant lieschke weatherillrespondent duddy shopov1 local government association south australia lga purpose theworkers rehabilitation compensation act 1986 act nominated employer registered group exempt employer included city holdfast bay holdfast city council 2 mr christopher pointer mr pointer worked holdfast city council 2000 2001 employed part tree team full time basis 3 september 2002 experienced soreness lower back driving water truck week 28 october 2004 experienced pain lower back nerve pressure left leg using chainsaw remove large tree incident subject worker compensation claim dated 16 november 2004 1 submitted claim 15 december 2004 holdfast city council made determination accepting claim determined level average weekly earnings 2 4 thereafter mr pointer certified unfit work 3 may end may 2005 june july august 2005 5 12 september 2005 certified fit duty number restriction day rehabilitation return work plan 5 3 prepared covered period 12 september 28 september 2005 6 pursuant plan mr pointer undertake certain restricted duty included clerical work painting picket fence bench height trestle work monday wednesday friday four hour per day every second friday rdo avoid repeated bending twisting certain lifting plan noted mr pointer totally incapacitated jan 05 sepr 12 9 05 7 rehabilitation return work plan period 29 september 9 october 8 10 october rehabilitation return work plan 6 4 prepared covering period 10 october 2005 20 october 2005 pursuant plan mr pointer undertake similar duty like restriction contained plan 5 four hour per day monday wednesday friday 9 2 november 2005 plan 7 5 prepared period 2 november 18 november 2005 similar duty restriction day hour work contained earlier two plan 10 period last plan letter dated 7 november 2005 determination 6 holdfast city council advised mr pointer satisfied breached obligation mutuality determined discontinue weekly payment compensation set hereunder relevant text letter dear mr pointerre worker compensation claim claim 43485the local government association south australia purpose theworkers rehabilitation compensation act 1986 nominated employer registered group exempt employer includes city holdfast bay advise pursuant tosection 36 1 f act worker income maintenance payment may discontinued breach mutuality breach mutuality particularised pursuant tosection 36 1a act include following e worker fails comply obligation rehabilitation return work plan act f worker refuse fails undertake work worker offered capable performing ii take reasonable step find obtain suitable employment obtained suitable employment unreasonably discontinues employment received medical report dr lipert dated 4 july 2005 express opinion able commence work hardening process attend light duty half time leading full time duty period four week similarly dr potter medical report 12 july 2005 expressed opinion fit progress work hardening rehabilitation program record attendance work september october 2005 indicate following datetimes worked12 09 054 hours14 09 054 hours16 09 054 hours28 09 051 hour19 10 05½ hour24 10 05½ hour26 10 052 hourson occasion attended work performed minimal duty left opinion duty made available within restriction refusing failing undertake work offered work capable performing satisfied breached obligation mutuality determined discontinue weekly payment compensation emphasis mine 11 foregoing attempt holdfast city council particularise breach mr pointer obligation relevant plan 12 agree mr warren counsel mr pointer thats 36 1a f refers paid work opposed work undertaken pursuant rehabilitation return work plan 7 relevant issue therefore whether mr pointer breach obligation pursuant relevant rehabilitation return work plan particular date particularised holdfast city council 13 analysis evidence relation date reveals following 12 9 05 14 9 05 16 9 05 mr pointer worked four hour day required pursuant plan 5 three day full compliance obligation pursuant plan 28 9 05 certified unfit work dr hand 8 19 10 05 mr pointer evidence attended work pain went home tried arrange appointment dr hand away organised see dr papps following tuesday leading 19 october 2005 mr pointer certified unfit work 13 18 october fit modified duty 19 31 october final two date particularised holdfast city council determination namely 24 october 26 october 2005 mr pointer certified unfit work 9 14 holdfast city council chose nominate sub section 36 1a e f act relevant sub section upon relied went particularise date upon relied mr pointer breach mutuality asserted mr pointer oneachof date attended work performed minimal duty based evidence date assertion could possibly made 19 october day mr pointer either fully complied work obligation ie 12 14 16 september certified doctor unfit work ie 28 september 24 october 26 october 15 notwithstanding mr doyle contention behalf holdfast city council intent determination breach period time employer compensating authority ought confined precisely seven date referred table top page 2 determination 10 holdfast city council absence qualification determination bound limited ground set date set particular alleging minimal work performed mr pointer 16 would different matter determination alleged general way mr pointer failed undertake work offered work capable time performing case holdfast city council alleging totality conduct mr pointer manifested degree lack co operation holdfast city council amount breach mutuality 11 stated determination holdfast city council alleging breach rehabilitation return work plan specified relevant plan particularised mr pointer breached obligation 17 mr doyle submitted tribunal look substance rather form determination substance mr pointer failed apply appropriately work made available submission reason already referred must fail 18 accept arguably move away characterisation provision mandatory directory 12 led slightly relaxed approach taken determining whether legislative pre requisite met 13 however taken indicating legislative requirement contained in 36 3 regulation 14 promulgated thereunder ignored need compliance requirement general basis upon decision discontinue must provided remains declared gilchrist dpj incoca cola v kartsonis 15 said requiring compensation authority disclose effect reason decision parliament intending fulfil number objective first place ensures compensating authority actsbona fide deciding exercise right undersection 36 cannot simply invoke provision find reason later event worker happens perchance seek review decision secondly may give worker better understanding happen amongst thing worker make informed decision whether seek review thirdly given review process devoid pleading giving reason set parameter issue debated review none objective met unless strict compliance requirement case holdfast city council bound term determination 19 extensive evidence number medical expert lay witness presented tribunal period six month together hour video surveillance mr pointer date ranging 6 august 2005 3 october 2005 20 number medical expert including mr pointer general practitioner dr hand expressed surprise mr pointer presentation depicted video surveillance inter alia included undertaking certain activity netball court daughter mowing partner lawn indeed mr walsh clinical psychologist viewed video surveillance concluded mr pointer given false information ultimate conclusion necessary appropriate deal evidence 21 evidence would relevant importance ultimately required consider merit matter would obliged determination holdfast city council couched expressed different language 22 dr hand said mr pointer honest cross examined authenticity various relevant prescribed medical certificate prescribed mr pointer prescribing relevant medical certificate mr pointer given false information misled 23 holdfast city council allege determination mr pointer misled medical expert including dr hand 24 basis foregoing determination holdfast city council compensating authority cannot stand set aside light foregoing invite party prepare final order consideration 25 judicial determination occupied ten day tribunal time whilst issue determined herein extent flagged mr warren opening address fully developed final address identified preliminary point determined tribunal agreed statement fact happened matter would disposed short period time fact regrettable note carefully party advised party wish appeal part decision appealable pursuant tos 86 1 act appeal must filed registrar accordance form titled notice appeal within 14 day delivery decision must served party 1 tb pp 14 15 2 tb pp 66 67 3 tb pp 248 251 4 tb pp 252 255 5 tb pp 256 259 6 tb pp 6 10 7 tr pp 374 377 8 tb p 44 certified unfit 28 30 september 2005 9 tb p 48 24 october certified unfit 24 25 october tb p 49 26 october certified unfit 26 28 october 10 tr p 358 11 mitsubishi motor australia ltd v jones unreported full supreme court south australia judgment number s3514 delivered 31 july 1992 per olsson j p10 12 project blue sky inc or v australian broadcasting authority 1998 hca 28 1998 194 clr 355at 516 7 per mchugh gummow kirby hayne jj 13 see examplegaeta v workcover corporation hih worker compensation pty ltd gaeta construction pty ltd 1999 sawct 136 14 see reg 7 theworkers rehabilitation compensation general regulation 1999 15 1996 sawct 16

Kirkland v Quinross Pty Limited [2008] NSWSC 286 (2 April 2008).txt

kirkland v quinross pty limited 2008 nswsc 286 2 april 2008 last updated 3 april 2008new south wale supreme courtcitation kirkland v quinross pty limited 2008 nswsc 286jurisdiction equity divisionfile number 1710 2006hearing date 28 march 2008judgment date 2 april 2008parties john birch kirkland p1 jon annette kirkland p2 st george bank limited d15 meyer gutnick d17 hama holding pty limited d18 mark ronald frank davidson d22 registrar general d23 michael david la greca d24 judgment austin jlower court jurisdiction applicablelower court file number applicablelower court judicial officer applicablecounsel ronzani p j harris d15 g rogers chee d17 d18 g curtin d22 g sirtes d23 callanan sol d24 solicitor boyd house partner p1 p2 st george bank limited d15 r l kremnizer co d17 d18 ebsworth ebsworth d22 booth d23 ellison tillyard callanan d24 catchword negligence economic loss whether solicitor requesting registrar general correct lot number stratum plan owed duty care plaintiff later became mortgagee stratum lottorrens system registrar general power correct register correcting reference lot number plan 12 1 d1 whether plaintiff entitled claim compensation solicitor 120 whether plaintiff entitled recover compensation torrens assurance fund 129 whether court grant leave nunc pro tunc 132 2 proceeding commenced without prior administrative proceedingslegislation cited real property act 1900 nsw civil procedure act 2005 nsw category principal judgmentcases cited austress freyssinet pty ltd v joseph 2007 nswsc 1513bebonis v angelos 2003 nswca 13 2003 56 nswlr 127bryan v maloney 1995 182 clr 609bullock v london general omnibus co 1970 1 kb 264 challenger managed investment ltd v direct money corporation pty ltd 2003 59 nswlr 452 2003 nswsc 1072chandra v perpetual trustee victoria ltd 2008 nswsc 178connell v odlum 1993 2 nzlr 257flounders v millar 2007 nswca 232fncb walton finance ltd v crest realty pty ltd 1987 10 nswlr 621fordyce v fordham 2006 nswca 274 2006 67 nsw lr 497 gran gelato ltd v richcliff group ltd 1992 ch 560hill v van erp 1997 188 clr 159march v e mh stramare pty ltd 1991 hca 12 1991 171 clr 506pirie v registrar general 1962 hca 58 1962 109 clr 619printy v provident capital ltd 2007 nswsc 287re minister immigration ethnic affair ex parte lai qin 1997 hca 6 1997 186 clr 622 reiffel v acn 075 839 266 ltd 2003 132 fcr 437 45 acsr 67 2003 fca 194at 69 travel compensation fund v tambree 2005 hca 69 2005 224 clr 627woolcock street investment pty ltd v cdg pty ltd 2004 hca 16 2004 216 clr 515texts cited decision see heading conclusion judgment 41 supreme courtof new south walesequity divisionaustin jwednesday 2 april 20081710 06 john birch kirkland anor v quinross pty ltd orsjudgment1his honour amended statement claim filed 17 july 2006 plaintiff part sought declaration order concerning rectification register certain lot stratum plan 71211 part plaintiff claim addressed consent order made 3 november 2006 authorising registrar general correct register unders 12 1 d1 thereal property act 1900 nsw registrar general subsequently acting authority 2 amended statement claim also seek following relief 1 declaration plaintiff entitled compensation unders 120of thereal property act 1900 nsw 2 order compensation favour plaintiff registrar general 22nd defendant mr davidson unders 120of thereal property act 3 damage 4 interest accordance withs 100of thecivil procedure act 2005 nsw 5 cost 3 present judgment address plaintiff claim relief facts4 149 old south head road bondi junction 3 storey residential flat building 2003 owner building dimepark pty ltd made application registration stratum plan subdivision convert property 12 stratum unit plus common property prior registration stratum plan dimepark entered separate contract sale 12 lot oates property pty ltd contract dated 10 november 2003 oates property set selling stratum unit time mr davidson solicitor 22nd defendant began act oates property 5 contract dimepark oates property sale unit plan contract annexed draft stratum plan specified stratum lot subject sale conditional upon dimepark registering stratum plan subdivision respect lot prior completion first four sale oak property also sale plan sale lot 2 4 10 12 shown draft plan purchaser named tsoukarellis doorey mifsud strasser convenience shall refer lot draft stratum plan annexed plan contract mark 1 lot 6 stratum plan registered stratum plan 71211 14 january 2004 plan registered identical draft plan annexed plan contract number stratum unit changed except three lot example unit north eastern corner first floor lot 6 draft stratum plan became lot 8 stratum plan registered unit south western corner first floor lot 7 draft stratum plan became lot 6 stratum plan registered unit south eastern corner first floor lot 8 draft stratum plan became lot 7 stratum plan registered lot 2 4 10 12 unit sold oates property plan became lot 4 3 12 11 respectively also change unit entitlement attached lot evidence reveal change occurred shall refer lot stratum plan registered mark 2 lot 7 oates property settled sale lot 2 4 10 12 mark 1 registration stratum plan january february 2004 apparently time mr davidson firm acting oates property aware change lot number whereas example purchaser lot 2 mark 1 contracted oates property buy unit identified draft plan called lot 2 draft plan purchaser acquired settlement memorandum transfer relating different lot namely lot 2 mark 2 8 according mr davidson identified variation lot number february 2004 step taken firm cooperation dimepark correct mr davidson referred affidavit mistake someone mr davidson office contacted department land april 2004 sent back information registrar general practice dealing application correct lot number shown deposited stratum plan unders 12 1 d1 thereal property act eric scerri surveyor prepared draft stratum plan annexed plan contract also stratum plan registered made statutory declaration 19 april 2004 identifying difference lot number draft plan registered plan attaching fresh plan amended number lot back original numbering purport explain variance occurred first place 9 mr davidson firm promptly make request registrar general unders 12 1 d1 april 2004 mr scerri made statutory declaration instead satisfy requirement ofs 12 1 d1 firm approached registered proprietor mortgagee stratum unit obtain consent application amend registered stratum plan number lot back original number 23 december 2004 mr davidson firm lodged form request correct lot number dealing ab 183103 attached form request statutory declaration mr scerri statutory declaration christopher emery solicitor mr davidson firm form request bore certificate constituting consent dimepark messrs tsoukarellis doorey mifsud strasser described purchaser lot 2 4 10 12 mortgagee lot 2 4 12 though form request clear plain name consenting purchaser mark 1 numbering used identify lot consent supplied 10 mr emery statutory declaration bear printed date 23 april 2004 date struck hand date 10 december 2004 substituted declaration mr emery said alteration draft plan made surveyor mr scerri purport explain occurred referred plan sale lot 2 4 10 12 mark 1 settlement purchase january february 2004 registration stratum plan saying time unaware numbering lot draft plan altered registered stratum plan consequently transfer lot prepared using lot number shown draft plan result incorrect lot conveyed purchaser four unit remainder unit mr emery said settlement remaining lot pending due shortly remaining lot still owned dimepark pty ltd 11 mr emery statement remaining lot still owned dimepark probably true 23 april 2004 printed date statutory declaration evidence purchase lot oates property dimepark settled time statement untrue 10 december 2004 corrected handwritten date declaration shall explain 12 1 march 2004 24th defendant michael la greca entered contract purchase one lot oates property pty ltd mistake contract sale correct identity subject property need explore problem mr la greca gave evidence settlement 3 may 2004 obtained unit intended buy namely lot 7 mark 2 lot 8 mark 1 mr la greca granted mortgage lot 7 mark 2 st george bank ltd october 2005 13 thus well 10 december 2004 registered proprietor lot 7 mark 2 mr la greca fact acknowledged mr emery statutory declaration surprising given evidence mr emery acted vendor oates property purchaser mr la greca transaction 14 august september 2004 completion contract sale dimepark oates property respect remaining lot overdue dimepark oates property agreed purchase lot 1 5 6 8 11 presumably mark 1 would completed transfer lot quinross pty ltd related company oates property quinross obtained finance completion lender whose loan arranged mr kremnizer solicitor amongst lender plaintiff approached mr kremnizer 20 december 2004 time course stratum plan long since registered agreed take mortgage lot 8 mark 2 security loan quinross 250 000 understood correct lot 8 mark 2 unit north eastern corner first floor building 15 settlement plaintiff mortgage lot 8 mark 2 took place 24 december 2004 happened day lodgement form request correct lot number mortgage stamped 29 december 2004 lodged registration mr kremnizer firm rl kremnizer co search indicates recorded register day immediately transfer lot 8 mark 2 dimepark quinross immediately mortgage evidently second mortgage lot 8 mark 2 nelpop pty ltd bleier mortgage corporation pty ltd certificate title lot 8 mark 2 issued 14 january 2005 confirms registration transfer two mortgage show second mortgage subsequently transferred meyer gutnick 17th defendant 16 form request lodged lodgement transfer lot 8 mark 2 dimepark quinross also lodgement mortgage lot 8 mark 2 plaintiff registrar general required register dealing order lodged may register dealing order give effect intention party 36 4 17 amended stratum plan 71211 purporting correct register response request correcting reference lot number registered plan unders 12 1 d1 registered 1 february 2005 evidence behalf registrar general explain happened amended stratum plan registered without consent person time registration held registered interest affected lot namely mr la greca plaintiff evidence behalf registrar general given anthony booth solicitor employed solicitor registrar general say dealt processing request registration amended stratum plan give relevant admissible evidence determination request registrar general 18 shall refer lot number registration amended stratum plan lot number mark 3 must remembered however purpose amendment restore lot number used draft stratum plan plan sale lot number mark 3 lot number mark 1 19 correction register presumably improved situation owner mortgagee unit purchased plan expected acquire lot 2 4 10 12 respectively mark 1 number amendment restored number surprisingly however amendment created good deal confusion plaintiff mr la greca acquired interest unit knew registered plan number mark 2 number number changed amendment effect unit lot 7 mark 2 owned mr la greca numbered lot 8 mark 3 unit lot 8 mark 2 owned quinross subject first mortgage favour plaintiff second mortgage favour mr gutnick numbered lot 6 mark 3 20 submitted plaintiff mr la greca matter hama holding mr gutnick protected bys 12 3a c provision offer protection person affected exercise registrar general power unders 12 1 d1 applies construction instrument made correction would prevent change lot number operating accordance registrar general determination therefore would insulate interest holder confusion numbering created also submitted numbering pursuant request dealing way affected registration plaintiff mortgage light ofs 41 correct also correct plaintiff interest holder protection indefeasibility title unders 42 protection prevent registrar general altering lot number registered estate interest still estate interest respect physical property became estate interest respect property designated new number 21 mr kirkland mr la greca gave evidence asked consent consent amendment stratum plan found amendment time occurred accept evidence follows time registrar general purported correct register correcting reference lot number sp 71211 consent proprietor mortgagee affected land consequently requirement exercise power correction unders 12 1 d1 present 22 according evidence mr kirkland plaintiff mortgage quinross went default 27 may 2005 quinross defaulted plaintiff took proceeding possession evidently obtaining order possession security property unit 8 december 2005 frustrated receiving overdue payment mortgagor rental payment tenant property engaged new solicitor discovered amendment stratum plan time 20 february 2006 mr kirkland informed unit become unit 8 also tenanted unit owned mr la greca previously lot 7 mark 2 tenant unit 8 lot 8 mark 3 lot 7 mark 2 surprisingly paying rent mr la greca plaintiff receiving rent tenant lot 8 mark 2 become lot 6 mark 3 clear evidence whether confusion lot number 23 27 february 2006 plaintiff solicitor wrote mr la greca solicitor demanding accounting rent collected tenant unit 8 apparently referring tenant mr la greca property lot 7 mark 2 amendment led mr la greca solicitor notifying registrar general occurred making demand also 27 february 2006 mr davidson ground face title client lot originally purchased amended statement claim alleges 2 march 2006 notice vacate presumably issued instigation plaintiff forwarded local court sheriff respect lot 8 mark 3 event occurred unfortunately find proof evidence notice misdirected plaintiff right respect lot 8 mark 3 right respect lot 8 mark 2 lot 6 mark 3 24 plaintiff commenced present proceeding summons filed 3 march 2006 seeking nothing specific declaration registered proprietor interest holder sp 71211 consequential order issue certificate title registration corrected stratum plan cost mr davidson registrar general court directed matter proceed pleading statement claim filed 15 march 2006 seeking declaration quinross beneficial legal owner unit 8 declaration identity registered proprietor interest holder entirety sp 71211 consequential direction registrar general rectify register issue certificate title amend stratum plan also damage compensation thereal property act interest cost 25 proceeding originally framed proceeding 24 named defendant theory proper course would establish ownership lot stratum plan possibly restoring mark 2 number lot following change solicitor plaintiff decided discontinue proceeding except seven defendant infer theory correction needed address plaintiff case respect lot 6 7 8 whose number swapped around amongst various alteration 26 necessary plaintiff obtain either consent affected defendant leave court order file notice discontinuance defendant longer party also necessary plaintiff plead remaining seven defendant step would require leave amend statement claim 19 april 2006 plaintiff solicitor wrote defendant seven would remain defendant seeking consent discontinuance defendant consented others reply eventually plaintiff made application registrar equity granted leave filing notice discontinuance non consenting defendant remaining seven leave granted respect defendant 16 june 2006 plaintiff meanwhile sought consent remaining seven defendant correction register respect lot 6 7 8 also amendment statement claim 27 evidence show registrar general supportive proposal correct numbering lot 6 7 8 although made clear preference fixing problem administratively unders 12 1 d1 rather court proceeding 20 april 2006 conferring legal representative plaintiff others legal service branch registrar general office wrote plaintiff solicitor confirming registrar general view expedient way correct problem would amendment unders 12 1 d1 consent registered proprietor mortgagee letter suggested course action agreed proceeding could disposed consent order probably excessively hopeful time plaintiff claiming compensation damage day legal service branch wrote mr la greca solicitor conveying proposal letter dated 27 june 2006 legal service branch confirmed plaintiff solicitor registrar general prepared amend register regarding lot 6 7 8 condition current registered proprietor lot registered interest consented dealing 28 appears obstacle registrar general proposal required appropriately consent everyone registered interest lot 6 7 8 mr la greca owned one lot subject mortgage st george bank mr la greca bank indicated prepared consent two lot owned quinross defaulted mortgage plaintiff may 2005 deregistered 19 march 2006 effectively remaining interest two lot mortgagee interest first mortgagee lot 6 mark 3 previously lot 8 mark 2 plaintiff claimed secured amount exceeding value property lot 7 mark 3 previously lot 6 mark 2 subject mortgage favour hama holding mr gutnick therefore task plaintiff obtain consent hama holding mr gutnick proposed renumbering 29 correspondence evidence show proved difficult task also proved difficult plaintiff obtain consent hama holding mr gutnick proposed amended statement claim necessary pay attention correspondence pertinent question causation cost 30 plaintiff solicitor prepared draft amended statement claim may 2006 seeking rectification register regard lot 6 7 8 mark 1 2 3 also compensation cost retaining seven defendant party sought consent remaining defendant filing amended pleading hama holding mr gutnick represented rl kremnizer co 26 june 2006 plaintiff solicitor wrote firm noting appearance behalf client matter registrar 16 june 2006 possible day court grant leave plaintiff file amended statement claim letter said consent forthcoming notice motion would filed letter also sought consent two party proposal rectify register restore lot 6 7 8 mark 2 numbering noting interested party consented registrar general prepared act 31 plaintiff solicitor received reply letter 26 june follow letter 10 july 2006 matter next mentioned registrar 14 february 2006 mr fernon counsel appeared hama holding mr gutnick consented short minute order included order granting plaintiff leave file amended statement claim 32 amended statement claim filed 17 july 2006 reflected discontinuance also plaintiff determination proceed relief way rectification register compensation cost seven remaining defendant following quinross first defendant fact deregistered registrar general 23rd defendant mr davidson 22nd defendant compensation cost sought mr la greca 24th defendant st george bank 15th defendant hama holding 17th defendant mr gutnick 18th defendant respect argument cost 33 consent order made 18 august 2006 hama holding mr gutnick required file serve defence 1 september 5 october 2006 rl kremnizer co sent plaintiff solicitor unverified defence two defendant defence also purported apply number defendant plaintiff time discontinued purported relate unamended statement claim pleaded substantive case plaintiff solicitor wrote rl kremnizer co 27 october 2006 drawing attention alleged defect defence threatening seek summary judgment hama holding mr gutnick 34 letter 27 october also foreshadowed application duty judge order rectifying lot 6 7 8 restore numbering mark 2 form invited hama holding mr gutnick consent application received intimation consent would given plaintiff served notice motion returnable 3 november 2006 seeking summary judgment hama holding mr gutnick declaration register lot 6 7 8 rectified matter came macready asj 3 november hama holding mr gutnick appeared counsel mr rogers consented making order rectification register 35 order made 3 november 2006 effect authorised required registrar general correct register amending amended stratum plan restore mark 2 number lot 6 7 8 order made consent affected party plaintiff mr la greca mortgagee st george bank hama holding mr gutnick registrar general registrar general subsequently acted court order presumably exercising power unders 12 1 d1 36 shall call lot number settled pursuant court order mark 4 lot number mark 4 numbering lot 6 7 8 mark 2 numbering lot thus position registrar general gave effect court order follows property plaintiff first mortgagee mr gutnick second mortgagee lot 8 mark 4 unit north eastern corner first floor lot 6 original draft stratum plan mark 1 lot 8 registered stratum plan mark 2 lot 6 amended stratum plan mark 3 property hama holding mr gutnick mortgagee lot 6 mark 4 unit south western corner first floor lot 7 draft stratum plan mark 1 lot 6 registered stratum plan mark 2 lot 7 amended stratum plan mark 3 property mr la greca registered proprietor st george bank mortgagee lot 7 mark 4 unit south eastern corner first floor lot 8 draft stratum plan mark 1 lot 7 registered stratum plan mark 2 lot 8 amended stratum plan mark 3 37 16 november 2006 plaintiff solicitor wrote rl kremnizer co informing registrar general given effect court order asserting default quinross plaintiff first mortgagee effectively owner lot 8 mark 4 hama holding first mortgagee lot 6 mark 4 effectively owner lot arrangement proposed collection rent tenant property 38 plaintiff sold lot 8 mark 4 mortgagee settlement taking place 21 june 2007 mr kirkland evidence decision take step curious first affidavit made 21 september 2006 explained plaintiff obtained order possession discovered february 2006 unit number changed gave evidence step taken september 2006 rectify register second affidavit made 14 december 2006 referred fact registrar general acted correct numbering lot 6 7 8 pursuant court order gave evidence negotiation rl kremnizer co respect rental saying intention new year seek list property sale obtain best market value 39 gave particular loss say otherwise seek prove plaintiff delay exercising power sale mortgagee mortgagor defaulted may 2005 caused numbering lot number effected registrar general 1 february 2005 third affidavit made 6 july 2007 particularise loss consequence completion sale 21 june 2007 40 according mr kirkland net sum received plaintiff completion 245 811 31 thus capital loss respect mortgage 4 188 89 additionally receive interest mortgage june 2005 onwards default rate interest mortgage 12 per annum hearing plaintiff claimed loss interest 60 000 acknowledged receiving rental payment amounting 6 755 making allowance amount plaintiff net claim damage 57 433 89 together legal cost present proceeding seek indemnity basis none defendant challenged mr kirkland figure required give oral evidence hearing though available pleadings41 pleaded certain material fact amended statement claim made substantive claim two defendant namely mr davidson registrar general case damage negligence pleaded mr davidson see case compensation unders 120of thereal property actwas pleaded mr davidson registrar general pleading would support case substantive relief defendant 42 mr davidson registrar general mr la greca st george bank filed defence amended statement claim 43 defence filed 4 october 2006 mr davidson denied contention owed plaintiff duty care breached causing damage contended request prepared lodged registration upon instruction quinross consent authority affected registered owner lot within stratum plan 71211 said registrar general properly acted upon request mortgage quinross plaintiff material time granted lot 8 stratum plan 71211 44 defence filed 14 august 2006 registrar general denied allegation liability made made following additional claim plaintiff suffered loss damage result mistaken amendment stratum plan denied loss damage result negligent act omission solicitor compensable professional indemnity insurer therefore conduct compensable torrens assurance fund pursuant tos 129 2 b thereal property act registrar general entitled correct register pursuant tos 12 1 act require order court march 2006 registrar general notified plaintiff would correct stratum plan condition plaintiff lodged formal request obtained written consent relevant party plaintiff done proceeding incompetent claim compensation unders 120of act plaintiff obtained registrar general consent leave court required act 45 amended defence filed 11 september 2006 mr la greca denied plaintiff entitled possession lot 8 amended stratum plan asserted indefeasible title lot 7 stratum plan become lot 8 amended stratum plan legal estate could affected registration amended stratum plan without knowledge consent circumstance plaintiff mortgage granted prior registration amended stratum plan related lot 8 stratum plan become lot 6 amended stratum plan 46 amended defence filed 29 august 2006 st george bank reinforced mr la greca case indefeasible title lot 8 amended stratum plan asserted registered first mortgage respect lot 8 plaintiff claim damage negligence mr davidson47 amended statement claim plaintiff claim damage mr davidson two alternative base namely negligence statutory liability unders 120of thereal property act 48 claim damage negligence amended statement claim state 22 davidson owed duty plaintiff acting legal practitioner preparation lodgement request affect interest plaintiff mortgage 23 breach duty care owed plaintiff davidson servant agent christopher emery negligently prepared wrongly lodged request registrar general result plaintiff interest mortgage detrimentally affected suffered continue suffer loss damage particular loss damage registrar general acted upon request changed reference various lot number sp 71211 without consent reference plaintiff sic thereby resulting security another lot le value ii cost incurred respect said proceeding possession iii loss repayment mortgage iv cost rectifying register defined thereal property act 1900 nsw v cost proceeding 49 several insuperable difficulty plaintiff pleading mr davidson first opinion mr davidson owe plaintiff pleaded duty care become liable compensate plaintiff economic loss event breach 50 taken several case addressed question whether solicitor one party ever owe duty care another party avoid economic loss necessary put case context within rapid development law negligence causing economic loss taken place high court australia recent year earlier case area treat concept proximity centrepiece analysis recently 1995 inbryan v maloney 1995 182 clr 609 mason cj deane gaudron jj said overriding requirement relationship proximity represents conceptual determinant unifying theme category case common law negligence recognises existence duty take reasonable care avoid reasonably foreseeable risk injury another 619 recent decision high court taken different approach result proximity longer seen conceptual determinant area woolcock street investment pty ltd v cdg pty ltd 2004 hca 16 2004 216 clr 515 528 9 per gleeson cj gummow hayne heydon jj note extensive list case decided high court period 1997 2002 cited honour footnote 80 page 158 9 51 generally speaking concept vulnerability plaintiff emerged important requirement case duty care avoid economic loss held owed thewoolcockcase gleeson cj gummow hayne heydon jj explained concept follows 530 see also 548 9 per mchugh j vulnerability context understood meaning plaintiff likely suffer damage reasonable care taken rather vulnerability understood reference plaintiff inability protect consequence defendant want reasonable care either entirely least way would cast consequence loss defendant citing stapleton comparative economic loss lesson case law focused middle theory 2002 50ucla law rev531 558 9 perre v appand pty ltd 1999 hca 36 1999 198 clr 180 plaintiff could nothing protect economic consequence defendant negligence sewing crop caused quarantining plaintiff land inhill v van erp 1997 188 clr 159 intended beneficiary depended entirely upon solicitor performing client retainer properly beneficiary could nothing ensure done inesanda finance corporation ltd v peat marwick hungerfords 1997 188 clr 241 financier could made enquiry financial position company lend money rather depend upon auditor certification account company 52 would add analysis readily extended toconnell v odlum 1993 2 nzlr 257 one case cited counsel mr davidson validity matrimonial agreement husband wife depended husband point view wife solicitor carefully explaining agreement providing certificate explained effect implication husband could otherwise rely fact wife solicitor given certificate therefore unable protect consequence solicitor want reasonable care 53 analysis applied position vendor solicitor responding purchaser requisition title though outcome depend upon precise analysis instant fact regard matter purchaser position vulnerability alternative avenue inquiry available example respect matter zoning unpaid rate difficulty arisen however requisition relates subject vendor solicitor special knowledge example content unregistered agreement vendor third party affecting land cfgran gelato ltd v richcliff group ltd 1992 ch 560 another case cited counsel mr davidson existence unregistered easement created land transaction vendor solicitor acted cfbebonis v angelos 2003 nswca 13 2003 56 nswlr 127 case necessary make factual assessment order determine whether purchaser position vulnerability sufficient together relevant circumstance give rise duty care owed vendor solicitor thegran gelatocase held duty existed inbebonis handley ja beazley heydon jja agreed questioned decision 135 42 suggesting might anomalous lay vendor would owe duty care purchaser solicitor would unnecessary resolve issue fact distance away requisition title 54 counsel mr davidson placed emphasis following observation handley j inbebonis v angelos 134 5 42 solicitor acting one party ordinarily owe duty another exceptionally may responsibility party assumed 55 notion assumption responsibility guiding principle also addressed high court inwoolcock gleeson cj gummow hayne heydon jj said 531 case pure economic loss bryan v maloneyis example reference made notion assumption responsibility known reliance negligent misstatement case likemutual life citizen assurance co ltd v evatt 1968 1968 hca 74 122 clr 556 1970 122 clr 628 1971 ac 793 andshaddock associate pty ltd v parramatta city council 1 1981 1981 hca 59 150 clr 225 seen case central plank plaintiff allegation defendant owed duty care contention defendant knew plaintiff would rely accuracy information defendant provided may professor stapleton suggested 2002 50ucla law rev531 558 9 case explained reference notion vulnerability 56 present case mr davidson employed solicitor mr emery acting oates property quinross undoubtedly owed contractual probably also tortious duty care acted quinross mortgage lot 8 mark 2 plaintiff plaintiff client represented rl kremnizer co mortgage transaction making request behalf client mr davidson initiated process could cause damage plaintiff control outcome action placed application registrar general statute entitled perhaps obliged grant application consent proprietor mortgagee lot obtained even plaintiff registered interest time making request would vulnerable suffer loss hand mr davidson registrar general statutory power correct lot number enlivened unders 12 1 d1 except consent proprietor mortgagee stratum lot regardless content information supplied support request open registrar general satisfy consulting register requirement consent fully satisfied fortiori circumstance plaintiff interest arose making request plaintiff cannot position vulnerability regard conduct mr davidson making request reason could said evidence mr davidson assumed responsibility plaintiff making request contrast situation withhill v van erp 1997 188 clr 159andconnell v odlum case plaintiff depended upon solicitor discharging retainer due care could nothing ensure occurred 57 plaintiff pleading contend mr davidson owed duty care would required draw registrar general attention registered interest arose six day request launched 58 assuming contrary view mr davidson owed plaintiff duty care time lodgement request another difficulty plaintiff would show breach duty request fail take account plaintiff interest time making request interest clearly request deficient failing identify registered interest mr la greca failing obtain consent view would constitute breach duty care owed mr davidson plaintiff plaintiff vulnerability existed mr davidson might make request without proper regard position rather position third party duty mr davidson plaintiff would arise handley ja described inbebonisas responsibility assumed favour another party plausible argue mr davidson assumed responsibility plaintiff take care address registered interest someone else mr la greca duty care would amount underwriting accuracy application favour every interest holder 59 reason sufficient dispose plaintiff claim negligence mr davidson additionally note plaintiff proved loss claim caused breach duty seek attribute mr davidson question causation also arises assessment plaintiff statutory claim registrar general shall address detail come issue suffice say approach question causation respect claim negligence causing economic loss application test causation enunciated high court inmarch v e mh stramare pty ltd 1991 hca 12 1991 171 clr 506 say causation essentially question fact answered reference common sense experience allowing possibility multiple cause loss rather application test personal injury case acknowledged application test may subject refinement economic loss case see particular comment ipp ja inflounders v millar 2007 nswca 232at 38 commenting observation gleeson cj intravel compensation fund v tambree 2005 hca 69 2005 224 clr 627at 638 28 issue causation commonly involve normative consideration sometimes referred reference value policy fortunately present case dictate common sense relatively clear statutory test causation imposed bys 129 considered seems indistinguishable test causation negligence causing economic loss consequently reasoning causation context ofs 129would equally applicable question causation would arise plaintiff proved mr davidson owed duty care breached plaintiff claim mr davidson unders 12060 alternative claim mr davidson made para 24 amended statement claim person whose act omission given rise loss damage suffered continues suffered plaintiff purpose ofsection 120real property act 1900 nsw 61section 120 appears inpart 13 civil right remedy division 2 proceeding compensation following term far relevant case 120 1 person suffers loss damage result operation act respect land loss damage arises b error misdescription omission register may take proceeding court competent jurisdiction recovery damage 2 proceeding may taken person whose act omission given rise loss damage referred subsection 1 b registrar general 3 proceeding registrar general taken accordance withpart 14 62 inchallenger managed investment ltd v direct money corporation pty ltd 2003 59 nswlr 452 2003 nswsc 1072 bryson j made following observation abouts 120 456 69 inpt 13 120authorises proceeding recovery damage brought person suffers loss damage result operation act respect land loss damage arises stated circumstance subsection 2 sub 3 effect proceeding kind dealt in 120are brought registrar general taken accordance withpart 14 understanding 120does create cause action entitlement recovery damage sub 1 authorises proceeding recovery damage taken perhaps circumstance authorisation bys 120is superfluous entitlement would exist general law 63 fact thechallengercase necessary honour decide whethers 120created statutory private cause action person registrar general view demand respect expressed part considered exposition ofparts 13and14by experienced judge somewhat odd treat statutory language merely confirming adding whatever right action would otherwise exist perhaps explained basis thrust ofs 120is confirming section abrogate private right action make provision case registrar general taken accordance withpart 14 event view follow observation honour result thats 120does confer upon plaintiff new cause action mr davidson course plaintiff would still prove act omission mr davidson given rise loss damage 120 2 difficult task fact 64 cause action asserted mr davidson negligence plaintiff failed make case ground result claim damage compensation mr davidson unsuccessful plaintiff claim compensation registrar general65 amended statement claim also asserts para 26 registrar general liable compensate plaintiff reason provision ofsection 120of thereal property act 1900 nsw 66 present case loss damage claim suffered plaintiff explained lost interest time mortgagor default may 2005 completion sale mortgaged stratum lot june 2007 allowance rental received b capital loss sale mortgaged stratum lot c cost proceeding possession cost correcting lot number register e cost present proceeding 67section 120allows person suffered loss damage result operation act respect stratum lot take proceeding registrar general underpart 14 loss damage arises inter alia error misdescription omission register circumstance compensation payable addressed in 129 question causality raised proceeding registrar general unders 129are proceeding compensation torrens assurance fund registrar general normal defendant 132 1 68section 129provides far relevant present case 129 1 person suffers loss damage result operation act respect land loss damage arises act omission registrar general execution performance function duty act relation land c error misdescription omission register relation land entitled payment compensation torrens assurance fund 2 compensation payable relation loss damage suffered person extent loss damage consequence act omission person b extent loss damage consequence fraudulent wilful negligent act omission solicitor licensed conveyancer real estate agent ii compensable indemnity given professional indemnity insurer c extent person failed mitigate loss damage 69 submitted thats 129 2 b applicable present case reached conclusion explained plaintiff failed make case negligence mr davidson subparagraph b application critical question unders 129 present circumstance whether category loss damage claimed plaintiff recoverable fund ground loss damage result operation act arisen act registrar general changing lot number 1 february 2005 misdescription lot number made occasion 70 earlier reason judgment referred briefly test causation applicable action negligence opinion statutory language result operation act loss damage arises stated matter enunciates substantially test causality namely common sense test expounded high court inmarch v stramare view taken bryson j thechallenger managed investmentscase 86 recently honour explored issue anothers 129case chandra v perpetual trustee victoria ltd 2008 nswsc 178 7 march 2008 described tort law pragmatic approach rather one founded highly defined enquiry 17 added practical limit imposed deciding causation point recognized assessment based common sense fact event become remote little connected outcome treated cause outcome even though must existed outcome occur 71 consequence applying negligence test causation thats 129 1 probably satisfied showing operation thereal property actmaterially contributed loss without dominant cause comparereiffel v acn 075 839 266 ltd 2003 132 fcr 437 45 acsr 67 2003 fca 194at 69 case cited 72 necessary apply test causation present fact determine whether category loss damage claimed plaintiff fall withins 129 1 interest73 plaintiff claim interest 60 000 adjusted allowance rent received calculated default rate interest period time default may 2005 time completion mortgagee sale june 2007 opinion evidence show plaintiff loss mortgage interest whole period result operation thereal property actin respect mortgaged lot reached conclusion interest lost part period fall within description 74 period may 2005 february 2006 taken plaintiff moving towards possession mortgaged lot oblivious change lot number evidence inconsistent proposition plaintiff kept money time incorrect lot numbering cause loss mortgage interest time discovered change unit number default mortgagor consequent time taken enforce security entitled recover interest period fund 75 late february 3 november 2006 plaintiff pursued litigation correct lot numbering evidently take step towards sale mortgaged property curiously give evidence show sale process delayed incorrect lot numbering strictly plaintiff good title first mortgage stratum lot north eastern corner first floor come lot 6 mark 3 rather lot 8 mark 2 position exercising power sale mortgagee convey good title however seems obvious inference proven fact sale process would rendered difficult change lot number particularly bearing mind unit 6 unit 8 tenanted certificate title plaintiff would able hand settlement would lot 8 circumstance view rational course plaintiff pursue correct lot number selling 76 reason given accept argument legal proceeding unnecessary however approach initially employed litigation unnecessarily complex time consuming excessive term cost involved joinder 26 defendant view plaintiff lost interest period february 2006 filing amended statement claim 17 july 2006 seeking correct lot number inappropriate procedure entitled recover fund lost interest 77 statement claim amended proceeding became far correcting lot number concerned proceeding correction lot number 6 7 8 evidence show prosecuted plaintiff due vigour delay correction register 17 july mid november 2006 due lack cooperation hama holding mr gutnick view plaintiff loss interest time loss damage result operation act particular 12 1 d1 upon registrar general relied changing lot number 1 february 2005 arose act registrar general changing lot number misdescription lot number thereby produced therefore unders 129 1 c plaintiff entitled compensation fund interest lost period 17 july mid november 2006 78 mid november 2006 time early 2007 plaintiff endeavour sell mortgaged lot without explanation whatever delay sale process extending month without explanation length time taken sale seems large portion delay mid november late june caused matter incorrect lot number alternatively period plaintiff failed mitigate loss damage unders 129 2 c specifically see plaintiff could put property sale immediately mid november perhaps auction early december settlement end january 2007 therefore seems plaintiff entitlement compensation fund lost interest limited period end january 2007 79 conclusion plaintiff claim compensation lost interest entitled compensation period 17 july 2006 31 january 2007 otherwise claimed interest default rate 12 claim challenged capital loss80 plaintiff claim capital loss 4188 89 difference amount lent amount recovered mortgagee sale evidence show problem lot number affected value mortgaged stratum lot sale price even temporary loss mistaken numbering corrected 3 november 2006 well mortgaged property sold prima facie mortgagee sale realises le mortgagor debt explanation mortgagee taken insufficient security view plaintiff proven claim category cost possession proceedings81 plaintiff provide evidence cost incurred possession proceeding moreover nothing evidence indicate cost caused incorrect lot number rather mortgagor default process realising security view plaintiff proven claim cost correcting lot number register82 plaintiff legal cost obtaining order made 3 november 2006 opinion cost incurred result operation act respect mortgaged lot cost arising misdescription lot number register following reason registrar general corrected lot number 1 february 2005 act 12 1 d1 operated create appearance plaintiff mortgage held lot 8 mark 2 become mortgage lot 6 mark 3 arguably appearance reality consent proprietor mortgagee required bys 12 1 d1 obtained event plaintiff protection ofss 41and42 practical effect registrar general action put plaintiff position act clarify right 83 opinion probably necessary plaintiff embark upon litigation kind order correct mistaken numbering fact indicate hama holding mr gutnick uncooperative solicitor respond correspondence seeking consent arrangement would lead registrar general exercising power issue brought court interlocutory circumstance circumstance seems unlikely hama holding mr gutnick would co operated voluntarily without litigation consenting registrar general correcting problem unders 12 1 d1 84 necessary refer submission counsel mr davidson abouts 12 1 may registrar general power correct error omission register unders 12 1 available correct lot number plan notwithstanding specific provision ofs 12 1 d1 thats 12 1 give registrar general broader flexible power counsel mr davidson referred authority construction ofs 12 1 namelyfncb walton finance ltd v crest realty pty ltd 1987 10 nswlr 621at 629g 630b pirie v registrar general 1962 hca 58 1962 109 clr 619at 623 644 establish error identified register registrar general power correct error indeed duty opinion would open registrar general acting unders 12 1 rather thans 12 1 d1 correct lot number without regard whether proprietor mortgagee affected lot consented change question whether interest holder consented proposed change fundamental fair proper exercise discretion opinion therefore would open plaintiff sidestep lack consent hama holding mr gutnick persuading registrar general act unders 12 1 rather thans 12 1 d1 85 consequently appropriate plaintiff act taking legal proceeding rather seeking administrative correction register provide mechanism requiring party whose consent needed address issue consent cost proceeding related application numbering lot 6 7 8 opinion result operation act therefore view plaintiff entitled compensated cost fund 86 would exclude however cost relating proceeding prior amendment statement claim 17 july 2006 cost preparing amended pleading said proceeding misdirected time could said cost incurred unamended proceeding resulted operation act arose incorrect lot numbering 87 summary plaintiff entitled compensated fund part cost proceeding related correction register eventually achieved pursuant order court 3 november 2006 excluding cost incurred prior 17 july 2006 cost preparation amended statement claim excluding cost relating part proceeding claim compensation related correction register cost proceedings88 plaintiff claim recovery remainder cost proceeding principally cost pursuing compensation claim assessed view claim compensation fund unders 129but claim cost proceeding successful litigant unsuccessful litigant cost pursuing compensation claim loss damage result operation act arising registrar general act misdescription register consistent withs 132 5 implies distinction claimant loss damage recoverable fund claimant cost court proceeding also consistent bryson aj judgment inchandra v perpetual trustee victoria ltd 2008 nswsc 178 registrar general defence unders 132 2 89section 132 2 provides follows 132 2 court proceeding may commenced unless administrative proceeding commenced determined relation compensable loss b 12 month date administrative proceeding determined relation compensable loss except leave court consent registrar general 90 defence registrar general pleaded proceeding incompetent claim compensation unders 120 plaintiff obtained registrar general consent leave court required provision although defence filed long ago 14 august 2006 appears plaintiff made request registrar general consent hearing commenced interlocutory application court leave counsel plaintiff unable give satisfactory explanation failure pursue matter hand registrar general make strike application participated proceeding particular consented making court order 3 november 2006 correction register 91 counsel plaintiff made application leave unders 132 2 nunc pro tunc hearing although brief attempt made approach registrar general consent effectively time application made considered argument whether registrar general might impliedly consented bringing compensation proceeding might estopped relying ons 132 2 view nothing evidence court would establish consent estoppel registrar general fully properly co operated making order designed lead correction register cannot construed consent plaintiff claim relief proceeding including particular compensation claim compensation claim registrar general relied ons 132 2 defence nothing suggest done otherwise maintain position 92 counsel registrar general submitted point taken unders 132 2 merely technical point bryson j said thechallenger managed investmentscase 76 part 14took present form part amendment enacted 2000 intended operate wide ranging reform part 14exhibits legislative intention compensation claim addressed first instance administrative proceeding registrar general court administrative process implemented court cautious allow legislative policy thwarted 93 hand drawn complex proceeding taken inordinately long time come final hearing last relevant party court counsel opportunity make full submission claim compensation relevant matter court decline leave plaintiff required pursue administrative process wish persist claim compensation satisfactory opportunity come court entail delay substantial additional cost compensation truly payable fund prejudice registrar general making determination effect counsel registrar general invited make submission prejudice said client may taken forensic decision differently aware application leave would made leave would granted submission specific persuaded prejudice would significant encouragement given claimant sidestepping procedure ordained bypart 14 present case whatever reason reached point described unusual circumstance granting leave could hardly seen creating precedent avoidance administrative process94 satisfied thats 132 2 give court discretion grant leave present circumstance although subsection prohibits thecommencementof proceeding except leave view statutory language exhibit intention prevent court exercising discretionary power nunc pro tunc proceeding commenced weighing discretionary consideration applicable taking particularly account overriding purpose thecivil procedure act 2005 nsw facilitate quick cheap resolution real issue civil proceeding 56 1 view correct course grant leave costs95 plaintiff partially succeeded claim compensation torrens assurance fund pursued claim without following administrative procedure ordained bypart 14 deprived registrar general advantage conferred upon bys 132 5 according provision court proceeding commenced following administrative proceeding determined offer compensation compensation awarded court le compensation offered determination claimant cost court proceeding payable registrar general registrar general cost payable claimant unless court order otherwise plaintiff proceeded administratively registrar general would opportunity make offer compensation protected cost court determination lesser amount although decided circumstance grant leave unders 132 2 plaintiff advanced good reason pursuing administrative process compensation circumstance would unfair require registrar general pay plaintiff cost 96 counsel plaintiff informed court client unsuccessful mr davidson registrar general otherwise would seek cost hama holding mr gutnick least resist claim cost plaintiff ground delay 32 plaintiff succeeded claim compensation registrar general accordingly make claim cost hama holding mr gutnick made claim would upheld agree submission made counsel party 34 mere non attendance client direction hearing basis cost order although uncooperative delayed response request consent correction register obligation consent respond informal request consent faced notice motion acted circumstance substantive claim view would inappropriate order pay plaintiff cost part cost 97 counsel plaintiff made claim cost mr la greca st george bank 33 obviously basis order 98 defendant cost counsel hama holding mr gutnick told court client sought cost anyone 34 99 st george bank sought order cost mr davidson basis request never filed case made fact bank also sought cost registrar general basis amended stratum plan registered bank made substantive claim relief registrar general proceeding basis suggesting bank recover cost absence establishing foundation substantive claim 100 accept submission counsel bank fact order correction register made consent rather contested hearing preclude court determining responsible purpose ordering cost minister immigration ethnic affair ex parte lai qin 1997 hca 6 1997 186 clr 622 fordyce v fordham 2006 nswca 274 2006 67 nsw lr 497 austress freyssinet pty ltd v joseph 2007 nswsc 1513 substantive claim relief behalf bank basis court could make determination 101 opinion mr la greca better position bank question cost benefit correction register procured proceeding opinion proper outcome bear cost 102 plaintiff unsuccessful claim damage compensation mr davidson see reason cost follow event view finding basis giving plaintiff benefit abullockorder recoupment cost defendant bullock v london general omnibus co 1970 1 kb 264 seeprinty v provident capital ltd 2007 nswsc 287 conclusions103 plaintiff claim damage compensation mr davidson dismissed cost 104 leave granted plaintiff unders 132 2 thereal property act nunc pro tunc commence present proceeding registrar general payment compensation torrens assurance fund plaintiff claim torrens assurance fund compensation succeed extent indicated otherwise say compensation lost interest rate 12 period 17 july 2006 31 january 2007 compensation part plaintiff cost proceeding relate correction register eventually achieved pursuant order court 3 november 2006 excluding cost incurred prior 17 july 2006 cost preparation amended statement claim excluding cost relating part proceeding claim compensation related correction register 105 except respect mr davidson cost order cost intention plaintiff defendant bear cost proceeding last updated 2 april 2008

Walker v Cape Australia Onshore Pty Ltd [2019] FCCA 2397 (29 August 2019).txt

walker v cape australia onshore pty ltd 2019 fcca 2397 29 august 2019 last updated 22 october 2019federal circuit court australiawalker v cape australia onshore pty ltd 2019 fcca 2397catchwords industrial law alleged dismissal contravention general protection alleged adverse action various complaint inquiry relation employment physical disability dismissal employment legislation disability discrimination act 1992 cth 6fair work act 2009 cth s 340 341 342 351 360 361 550federal circuit court australia act 1999 cth 75federal circuit court rule 2001 cth r 21 02 1 liquor control act 1988 wa case cited board bendigo regional institute technical education v barclay 2012 hca 32 2012 248 clr 500 2012 86 aljr 1044 2012 220 ir 445 2012 290 alr 647celand v skycity adelaide pty ltd 2017 fcafc 222 2017 256 fcr 306 2017 274 ir 420construction forestry mining energy union v mccorkell construction pty ltd 2 2013 fca 446 2013 232 ir 290 2013 65 ailr 101 911construction forestry mining energy union vbhp coal pty ltd 2014 hca 41 2014 253 clr 243 2014 88 aljr 980 2014 245 ir 354 2014 314 alr 1 2014 66 ailr 102 268construction forestry mining energy union others v clarke 2008 fcafc 143 2008 170 fcr 574 2008 176 ir 245construction forestry mining energy union v endeavour coal pty ltd 2015 fcafc 76 2015 231 fcr 150 2015 250 ir 422construction forestry mining energy union v pilbara iron company service pty ltd 3 2012 fca 697 2012 64 ailr 101 659cross v harbour city ferry pty ltd harbour city ferry or 2 2017 fcca 1713devonshire v magellan powertronics pty ltd or 2013 fmca 207 2013 231 ir 198 2013 275 flr 273 2013 65 ailr 101 892evans v trilab pty ltd 2014 fcca 2464 2014 66 ailr 102 287general motor holden pty ltd v bowling 1976 136 clr 676 1976 51 aljr 235 1976 12 alr 605harrison v control pty ltd 2013 fmca 149 2013 230 ir 452 2013 273 flr 190 2013 65 ailr 101 866maritime union australia v geraldton port authority 1999 fca 899 1999 93 fcr 34 1999 94 ir 244 1999 165 alr 67maslen v core drilling service pty ltd anor 2013 fcca 460murrihy v betezy com au pty ltd 2013 fca 908 2013 238 ir 307ramos v good samaritan industry 2013 fca 30russell v institution engineer australia engineer australia 2013 fca 1250shea v energyaustralia service pty ltd 2014 fcafc 167 2014 242 ir 159 2014 66 ailr 102 303shea v truenergy service pty ltd 6 2014 fca 271 2014 242 ir 1 2014 314 alr 346storey v monitoring centre pty ltd or 2015 fcca 3310walsh v greater metropolitan cemetery trust 2 2014 fca 456 2014 243 ir 468 2014 66 ailr 102 285wzasx v minister immigration border protection 2017 fca 1415the shorter oxford english dictionary historical principle 3rdedn oxford clarendon press 1973 applicant peter walkerrespondent cape australia onshore pty ltd acn 009 120 021file number peg 251 2014judgment judge antoni lucevhearing date 6 7 july 2015date last submission 7 july 2015delivered perthdelivered 29 august 2019 delivered judge street pursuant tos 75of thefederal circuit court australia act 1999 cth representationcounsel applicant mr dv bladessolicitors applicant ilberyscounsel respondent mr j snadensolicitors respondent arnold bloch leiblerorders 1 application amended 12 september 2014 dismissed federal circuit courtof australiaat perthpeg 251 2014peter walkerapplicantandcape australia onshore pty ltd acn 009 120 021respondentreasons judgmentintroductionin proceeding applicant peter walker mr walker alleges various contravention general protection provision thefair work act 2009 cth fw act former employer respondent cape australia onshore pty ltd acn 009 120 021 cape australia court made order consent 17 july 2015 giving leave mr walker discontinue amended consolidated application bechtel western australia pty ltd bechtel wa order cost notice discontinuance relation bechtel wa filed mr walker 17 july 2015 although mr walker discontinued proceeding bechtel wa 10 day hearing hearing proceeded basis leave granted mr walker discontinue bechtel wa order cost transcript p 2 alleged adverse action relation various alleged complaint inquiry made mr walker course employment cape australia andthe dismissal mr walker employment cape australia 26 june 2014 court acknowledges reason judgment significantly delayed essential reason case load perth registry court several year recently november 2017 described federal court extreme judicial resourcing perth registry court described federal court resourced wzasx v minister immigration border protection 2017 fca 1415at 32 per mckerracher j case management consequence effect obvious obvious flow therefrom relation case pertinent note court access read relevant paper including pleading evidence submission referred 4 5 hereunder circumstance delay court regret effect upon court reasoning reason judgment pleading evidence submissionsthe court regard pleading specifically mr walker amended consolidated application amended consolidated statement claim cape australia amended defence court regard evidence whole including affidavit filed mr walker namely mr walker affidavit sworn 2 april 2015 walker april 2015 affidavit andmr walker affidavit sworn 25 june 2015 walker june 2015 affidavit affidavit filed behalf cape australia namely affidavit jason gary king mr king affirmed 26 may 2015 king affidavit affidavit catherine elizabeth thomson m thomson sworn 26 may 2015 thomson affidavit andthe affidavit geoffrey ross weaver mr weaver sworn 26 may 2015 weaver affidavit transcript hearing transcript includes oral evidence submission party proceeding court read read prior finalising reason judgment exhibit tendered proceeding andthe written outline submission filed mr walker cape australia claim made mr walkerin matter alleged adverse action taken cape australia mr walker relation employment first question court must resolve whether adverse action second question adverse action taken mr walker exercise workplace right disability amended statement claim alleges four separate incident adverse action namely dismissal mr walker employment 26 june 2014 allegation cape australia supported policy bechtel wa put differently position adopted bechtel wa respect various issue cape australia considered mr walker unfit mobilisation wheatstone project site andthat cape australia insisted mr walker provide additional information bechtel wa bechtel wa medical provider aspen medical question dismissal mr walker employment adverse action factual backgroundit necessary set basic factual background relation matter person witness involved nature wheatstone project wheatstone project site term mr walker employment contract relationship bechtel wa cape australia setting relevant law dealing issue arise person involvedit convenient outset set name position primary person involved event subject proceeding mr walker applicant appointed position hr ir manager wheatstone project cape australia commencing 20 january 2014 working dismissal employment cape australia 26 january 2014 walker april 2015 affidavit 17 112 weaver affidavit 166 mr walker worked human resource industrial relation approximately 15 year including time project hr ir manager rio tinto 2010 2012 resigned order commence full time law study charles darwin university walker affidavit 1 5 cape australia corporate entity part cape plc global corporate entity founded 1893 based london provides multi disciplinary service including access system insulation refractory lining painting coating blasting industrial cleaning training assessment large industrial asset weaver affidavit 12 15 wheatstone project cape australia provided service bechtel wa including scaffold erection dismantling service painting fire proofing insulation service weaver affidavit 19 walker april 2015 affidavit 19 bechtel wa contractor engaged chevron australia pty ltd one joint venturer wheatstone project others kuwait foreign petroleum exploration company woodside petroleum limited kyushu electric power company pe wheatstone pty ltd respect engineering procurement construction commission wheatstone project weaver affidavit 17 18 mr king employed cape australia project manager wheatstone project september 2013 30 year experience construction operation installation industry completed certificate level qualification project management construction occupational safety health whilst working europe prior october 2011 project manager wheatstone project responsibility cape australia contract service bechtel wa including responsibility safety quality production construction human resource industrial relation king affidavit 3 13 m thomson first employed cape australia recruiter november 2011 cape australia recruitment mobilisation coordinator august 2012 march 2014 appointed resourcing manager thomson affidavit 5 7 m thomson background employment recruitment dating 2008 2012 received tafe level diploma human resource management thomson affidavit 3 4 9 mr weaver employed cape australia various human resource position relevant time cape australia hr director responsible developing managing national industrial relation strategy implementing major organisational change restructures recruiting member senior human resource management team managing cape australia human resource strategy including recruitment training worker compensation claim weaver affidavit 4 5 mr weaver time relevant event approximately 28 year experience human resource across industry including motor vehicle manufacturing mining petroleum energy master business administration macquarie university obtained 1995 2014 qualified become graduate member australian institute company director weaver affidavit 3 6 11 kinetic health cape australia medical provider relevantly conducted pre employment medical assessment cape australia thomson affidavit 33 46 48 sometime prior april 2014 kinetic health changed name sonic healthplus walker april 2015 affidavit 33 aspen medical bechtel wa medical provider undertook medical assessment bechtel wa particularly purpose determining person fitness access site upon bechtel wa engaged thomson affidavit 41 46 necessary court make observation respect witness mr walker particularly impressive witness tendency dogmatic detriment forced concede statement made affidavit therefore oath either wrong partially correct see example concession mr walker forced make cross examination relation hiring m chiplin work hr cape australia transcript p 43 line 34 40 see also m thompson evidence transcript p 108 109 budget allocation m chiplin position transcript p 43 line 42 45 44 line 1 9 interview date time transcript p 45 line 45 47 46 line 1 2 andwhether compute access book medical assessment transcript p 53 line 21 24 endeavour distinguish responsibility accountability undertaking certain task transcript pp 33 line 1 9 38 line 16 20 seemingly endeavour avoid responsibility ensuring certain administrative task associated personnel recruitment performed endeavour rendered futile concession already made cross examination responsibility transcript p 21 line 20 22 37 39 andhis endeavour deny responsibility recruitment function part role transcript pp 23 24 circumstance conceded responsible facet human resource management wheatstone project see b emphasised recruitment expertise application role endeavoured downplay cross examination almost generic word transcript pp 23 line 1 14 64 line 16 17 70 line 34 35 measure mr walker dogmatism seen insistence wheatstone project site remote site insistence bechtel wa responsibility wheatstone project site need quantify risk needing medical attention whilst wheatstone project site respect obvious wheatstone project site remote site obvious site scale would negligent site manager understand risk personnel may site understand step might need taken event particular individual either individual medical emergency larger site emergency furthermore employer site manager need aware employee visitor site disability order make necessary reasonable adjustment facilitate work required done employee visitor disability discrimination act 1992 cth 6 disclosure disability constitutes discrimination person disclosure made information may may constitute discrimination mr walker seem appreciated distinction practical reality necessity bechtel wa party responsible wheatstone project site know risk disability mr walker might pose whether step needed taken relation disability mr walker evidence also suffered reason seeming endeavour pas responsibility much junior m thomson matter responsibility transcript p 40 overall mr walker impressive witness extent conflict evidence mr weaver mr king m thomson court preferred evidence witness mr weaver mr king appeared court solid reliable witness gave evidence truthfully best ability recall prepared forthright necessary evidence also exhibited time passed became increasingly circumspect dealing mr walker due performance conduct employment relation mr weaver little little effective challenge evidence cross examination court reason doubt truthfulness evidence given either mr weaver mr king m thomson impressive witness good recall relevant detail matter good grasp detail relevant hr ir system process cape australia evidence demonstrated far au fait system process mr walker court generally accepted m thomson evidence without reservation overall court preferred evidence mr weaver mr king m thomson mr walker particularly conflict evidence mr walker three witness wheatstone projectthe wheatstone project enterprise construct liquefied oil gas project walker april 2015 affidavit 8 weaver affidavit 16 relation work wheatstone project cape australia office perth metropolitan area canning vale jandakot sitethe wheatstone project oil gas field processing facility located ashburton north wheatstone project site approximately 12 kilometre onslow approximately 1400 kilometre north perth nature wheatstone project site neighbouring town onslow described mr weaver weaver affidavit 24 30 follows 24 wheatstone project remote location exceptionally large complex site several kilometre wide direction long distance facility including accommodation area food area construction zone experience site enormous complex took time become familiar 25 way example wheatstone project air strip bus used transport personnel arriving plane site b accommodation area able sleep approximately 6 000 personnel c distance accommodation area area main meal served approximately 1 kilometre site contains numerous facility eating mess hall tavern entertainment area gymnasium large swimming pool e personnel transported bus construction zone food area accommodation area area f drive one side construction zone another could take 15 minute 26 site operational construction zone location building road access point regularly change example tenure hr director cape temporary gravel road makeshift path numerous temporary aluminium demountable hut moved around requirement site changed due nature work wheatstone project established workplace everything static 27 site located desert terrain hot dusty mean average maximum temperature january 41 degree celsius average annual rainfall 280 mm 28 due heat dust distance involved personnel site transported air conditioned bus construction zone accommodation meal area 29 view medical facility site visit wheatstone project aspect site relevant role familiar location scope size medical facility site 30 nearest town onslow small visited onslow time site consisted petrol station small iga supermarket pub approximately three block house side main street hospital onslow visit know detail size operation relation medical facility wheatstone project site onslow onslow small town approximately 500 resident medical facility including small local hospital king affidavit 17 andthe wheatstone project site medical facility including doctor nurse medical facility run aspen medical similar extended first aid significant prolonged medical issue requires personnel flown wheatstone project site perth someone unable work three day due illness injury routinely flown wheatstone project site decision one made aspen medical neither cape australia personnel involved decision making process king affidavit 18 19 employment contractmr walker commenced employment cape australia hr ir manager 20 january 2014 pursuant contract employment dated 16 january 2014 employment contract walker april 2015 affidavit 17 annexure pwa 02 term employment contract relevantly included term effect clause 9 employment located mr walker work wheatstone project onslow perth performance training duty required also location required clause 10 12 mr walker would paid salary 162 500 per annum working perth 250 000 per annum performing work wheatstone project plus access bonus scheme superannuation contribution clause 13 mr walker hour work perth notionally 38 per week monday friday inclusive andwhen wheatstone project average 65 hour per week basis three week one week work cycle duty responsibility position hr ir manager discussed project manager company may vary duty responsibility necessary consultation may also required carry duty within skill confidence training additionally cl 13 mr walker required carry duty within skill competency training promote interest cape australia use best endeavour protect promote cape australia activity reputation refrain acting conflict interest cape australia andto best knowledge ability perform duty assigned clause 17 provided mr walker employment subject three month probationary period period manager monitor behaviour performance clause 23 entitled fitness work provided follows company may require time attend company nominated doctor cost full partial medical examination relation continued employment upon termination may required post employment medical also required comply random drug alcohol testing throughout duration employment company may also require undertake medical test required suspected influence drug alcohol prior commencement work duty company may requested furnish report arising medical examination including pre employment medical client facilitate entry site signing contract consent disclosure clause 24 provided termination case probationary employee giving one week notice employment pay lieu thereof cape australia satisfied behaviour performance full part time employee giving one month notice writing payment lieu thereof subject cape australia right terminate employment without notice serious breach obligation case misconduct mr walker said understood together majority cape australia management would commence working perth eventually mobilise wheatstone project site walker april 2015 affidavit 20 mr walker say told cape australia anticipated role would complete april 2017 walker april 2015 affidavit 23 mr walker evidence duty hr ir manager included following providing advice education internal hr ir er issue obligation partner line management manage cape australia workforce ensuring compliance employee collective agreement meeting legislative obligation ensure wheatstone project site activity complied relevant legislation law ethical standard andto manage payroll function wheatstone project site walker april 2015 affidavit 24 mr walker asserted role primarily desk job would operating machinery similar walker april 2015 affidavit 25 relevant observe mobilisation wheatstone project site delayed mr walker say although originally planned take place end february 2014 delayed sometime april may june 2014 walker april 2015 affidavit 28 lawit convenient stage set law respect adverse action proceeding must proven respective party context adverse action proceeding mr walker assert establish exercised workplace right pleaded statement claim conduct complained fact occurred andthat conduct constitutes adverse action 342 1 thefw act mr walker prof conduct alleges conduct carried prohibited reason cape australia prove balance probability motivated impermissible reason fw act 361 1 board bendigo regional institute technical education v barclay 2012 hca 32 2012 248 clr 500 2012 86 aljr 1044 2012 220 ir 445 2012 290 alr 647 barclay maritime union australia v geraldton port authority 1999 fca 899 1999 93 fcr 34 1999 94 ir 244 1999 165 alr 67 geraldton port authority 221 per rd nicholson j inbarclaythe high court said task court proceeding alleging contravention reason adverse action determine balance probability employer took adverse action employee ask whether prohibited reason reason included prohibited reason barclayat 5 per french cj crennan j adverse action found taken prohibited reason reason including prohibited reason action substantial operative reason employer taking adverse action employee barclayat 104 per gummow hayne jj test whether adverse action taken prohibited reason barclayat 129 per gummow hayne jj e xamining whether particular reason operative immediate reason action call inquiry mental process person responsible action barclayat 140 per heydon j use word 340 1 thefw actrequires causal link established adverse action complained matter referred 340 thefw act russell v institution engineer australia engineer australia 2013 fca 1250 russell 60 per foster j inrussellat 63 per foster j federal court observed sufficient prohibited reason one several reason taking action prohibited reason must operated substantial operative factor taking adverse action relation evidence bearing upon decision made employer french cj crennan j inbarclaysaid 41 employer took adverse action employee question fact 44 direct evidence decision maker state mind intent purpose bear upon question adverse action taken although central question remains adverse action taken andat 45 question one fact must answered light fact established proceeding generally extremely difficult displace statutory presumption 361 direct testimony given decision maker acting behalf employer direct evidence reason decision maker took adverse action may include positive evidence action taken prohibited reason may unreliable contradictory evidence given decision maker objective fact proven contradict decision maker evidence however direct testimony decision maker accepted reliable capable discharging burden upon employer even though employee may officer member industrial association engage industrial activity gummow hayne jj inbarclayat 127 said determining application 346 federal court ass whether engagement employee industrial activity substantial operative factor constitute reason potentially amongst many reason adverse action taken employee assessing evidence led discharge onus upon employer 361 1 reliability weight evidence balanced evidence adduced employee overall fact circumstance case reason decision maker time adverse action taken focus inquiry court inmaslen v core drilling service pty ltd anor 2013 fcca 460at 17 per judge lucev relation approach adopted inbarclaysaid suggested decision maker subjective intention accepted primary judge context relevant objective fact provide defence adverse action claim mere assertion enough however whether employer took adverse action prohibited reason question fact primary judge determine evidence bearing mind employer bear onus show take adverse action prohibited reason inbarclaythe high court also observed purpose 361 thefw actwas place defendant employer onus proving lie peculiarly within employer knowledge barclayat 50 per french cj crennan j 86 per gummow hayne jj 149 per heydon j adopting said ingeneral motor holden pty ltd v bowling 1976 136 clr 676 1976 51 aljr 235 1976 12 alr 605at 617 per mason j mr walker submits making one complaint inquiry reason dismissal allegation raised 361 thefw actoperates create presumption mr walker dismissed including making one inquiry complaint onus cast respondent prove otherwise displace presumption respondent need establish making mr walker one complaint inquiry substantial operative factor dismissing walsh v greater metropolitan cemetery trust 2 2014 fca 456 2014 243 ir 468 2014 66 ailr 102 285 greater metropolitan cemetery trust 2 17 per bromberg j federal court noted relevant authority operation s 360 361 thefw actare discussed inconstruction forestry mining energy union v mccorkell construction pty ltd 2 2013 fca 446 2013 232 ir 290 2013 65 ailr 101 911 bromberg j follows therefore mere declaration innocent reason intent taking adverse action may satisfy onus upon employer contrary inference available fact barclayat 54 per french cj crennan j question whether proscribed reason substantial operative factor constitute proscribed reason whether operative immediate reason adverse action barclayat 127 per gummow hayne jj storey v monitoring centre pty ltd or 2015 fcca 3310at 128 per judge manousaridis proscribed reason sole reason taking adverse action person may regarded taken adverse action particular reason reason action include reason fw act 360 observed high court federal court breach 340 thefw actif adverse action taken reason whose underlying fact coincide existence exercise workplace right long adverse action taken existence exercise workplace right construction forestry mining energy union v bhp coal pty ltd 2014 hca 41 2014 253 clr 243 2014 88 aljr 980 2014 245 ir 354 2014 314 alr 1 2014 66 ailr 102 268 bhp coal 20 per french cj kiefel j construction forestry mining energy union v endeavour coal pty ltd 2015 fcafc 76 2015 231 fcr 150 2015 250 ir 422 endeavour co 32 per jessup j complaint inquiryan employee workplace right employee able make complaint inquiry relation employment 341 1 c ii thefw act inevans v trilab pty ltd 2014 fcca 2464 2014 66 ailr 102 287 trilab 16 per judge lucev court noted divergent approach emerged court federal court employee able make complaint inquiry one approach 341 1 c ii complaint inquiry need arise statutory regulatory contractual provision complaint inquiry relation person employment devonshire v magellan powertronics pty ltd or 2013 fmca 207 2013 231 ir 198 2013 275 flr 273 2013 65 ailr 101 892 murrihy v betezy com au pty ltd 2013 fca 908 2013 238 ir 307 murrihy contrasting approach 341 l c ii complaint must underpinned statutory contractual entitlement right shea v truenergy service pty ltd 6 2014 fca 271 2014 242 ir 1 2014 314 alr 346 shea 6 625 per dodds streeton j harrison v control pty ltd 2013 fmca 149 2013 230 ir 452 2013 273 flr 190 2013 65 ailr 101 866 trilabat 24 per judge lucev mr walker submits wider approach ofmurrihyshould preferred appeal fromshea 6 full court federal court cautioned implying 341 constraint would inhibit employee ability freely exercise important statutory right make complaint shea v energyaustralia service pty ltd 2014 fcafc 167 2014 242 ir 159 2014 66 ailr 102 303 energyaustralia service 12 per rares flick jagot jj complaint indirect nexus mr walker term condition employment may still come within scope 341 1 c ii thefw act construction forestry mining energy union v pilbara iron company service pty ltd 3 2012 fca 697 2012 64 ailr 101 659 pilbara iron service 64 per katzmann j word relation used 341 1 c ii thefw actare wide import use phrase identifies relationship subject matter complaint complainant employment required greater metropolitan cemetery trust 2 41 per bromberg j subject matter complaint raise issue potential implication complainant employment likely requisite nexus satisfied pilbara iron servicesat 69 per katzmann j greater metropolitan cemetery trust 2 42 per bromberg j inramos v good samaritan industry 2013 fca 30the federal court recognised possibility complaint made employee comment made management concerning work issue might dependent upon circumstance admit conclusion adverse action could taken employee complaint see alsotrilabat 47 per judge lucev ingreater metropolitan cemetery trust 2 applicant raised probity issue relation contract supplier supplied service applicant managed course employment federal court stated whether employee contractual duty report possible misdeed others failure report suspected wrong potential reflect badly upon cause prejudice employment reason either two factor held contract complaint made applicant raised issue potential implication employment relation employment within meaning 341 c ii thefw act party differ proper construction 341 1 c thefw act along line split federal court theshea 6 view complaint inquiry must one employee able make based upon instrument contract employment award legislation broadermurrihyview employee make complaint inquiry matter provided relation employee employment dichotomy view proper construction 341 1 c thefw actis reflected judgment court applied view seetrilab issuesmr walker claim cape australia contravened 340 1 ii thefw actby taking adverse action within meaning item 1 342 1 thefw act mr walker dismissing reason included exercised workplace right within meaning 341 1 c ii thefw act make complaint inquiry relation employment particular complaint inquiry made mr walker relation employment concerned refusal aspen medical bechtel wa ass mr walker fit duty request aspen medical bechtel wa access mr walker general practitioner andrelevant human resource industrial relation policy practice procedure bechtel wa alternatively mr walker claim dismissed cape australia contravention 351 1 thefw actfor reason included mr walker physical disability type 2 diabetes nothing role administrative location close proximity medical assistance meant mr walker le able perform job increased risk others simply type 2 diabetes inherent requirement role require adverse action taken mr walker dismissal light diabetes andthe adverse action contravention 351 1 thefw actwas cape australia support bechtel wa policy cape australia decision consider fit duty mobilisation wheatstone project insist upon access provided general practitioner provision information course employment approximately march 2014 june 2014 mr walker also claim made complaint inquiry cape australia bechtel wa relation employment unrelated medical complaint including limited following bechtel wa drug alcohol policy related employee site mr walker concerned possible contravention theliquor control act 1988 wa lc act practice allowing open unpackaged alcohol leave licensed area say raised cape australia bechtel wa several time february 2014 march 2014 walker april 2015 affidavit 62 70 aspect bechtel wa drug alcohol policy permitted standing employee without pay prior confirmatory testing walker april 2015 affidavit 74 75 79 search contractor room site without contractor knowledge consent issue brought mr walker attention contractor wheatstone project mr walker raised concern cape australia advised mr walker would raised bechtel wa mr walker raise bechtel wa walker april 2015 affidavit 81 91 privacy concern interview checklist guideline issued bechtel wa walker april 2015 affidavit 92 98 andthe disclosure worker compensation history registration interest working wheatstone project walker april 2015 affidavit 99 104 complaint inquiry said mr walker initiative others request employee cape australia medical examination assessmentsat time mr walker employment cape australia would appear requirement mr king satisfy also medical cape australia cape australia medical assessor kinetic health well medical aspen medical bechtel wa medical provider basis respective medical assessment cape australia determined whether employee fit duty cape australia bechtel wa determined whether employee fit duty wheatstone project site king affidavit 49 52 15 january 2014 prior commencing employment cape australia mr walker undertook medical examination kinetic heath assessed fit proposed duty hr ir manager wheatstone project restriction january 2014 medical assessment walker april 2015 affidavit 13 15 course january 2014 medical assessment mr walker disclosed suffered type 2 diabetes late january 2014 mr walker m thomson attended meeting cape australia national training manager m water present together mr scott m bassett bechtel wa discus personnel mobilisation wheatstone project site part project bechtel wa required personnel going wheatstone project site undergo medical assessment aspen medical late january 2014 meeting m thomson say unsurprised requirement undertake medical assessment aware large construction project requirement specific medical assessment undertaken thomson affidavit 41 late january 2014 meeting bechtel wa provided cape australia officer present information brief relation pre employment medical thomson affidavit 42 annexure cet 08 heading planning consideration information brief say conduct pre employment medical assessment thorough examination individual health wellbeing aim examination ass individual capacity safely work wheatstone project site respect medical assessment recommendation information brief indicates follows three sic medical assessment recommendation follows fit proposed dutiesunfit proposed dutiesfit proposed duty restrictionscurrently unfit recommended investigation subcontractor receive medical assessment recommendation either fit proposed duty restriction currently unfit recommended investigation contact bechtel occupational health coordinator advice guidance following late january 2014 meeting mr walker m thomson worked cape australia pre employment medical assessment process became apparent aspen medical pre employment medical assessment process required greater level detail required cape australia pre employment medical assessment process process complicated fact bechtel wa informed cape australia assessment process completed aspen medical paperwork thomson affidavit 43 45 m thomson contacted kinetic health process ultimately put place took number week establish finalise enabled single medical undertaken meet requirement cape australia bechtel wa relation personnel assigned wheatstone project site required approximately 10 employee including mr walker mr king undertake second medical assessment process m thomson unaware prior reading walker april 2015 affidavit mr walker undertake undertaken second medical assessment aspen medical thomson affidavit 46 50 3 april 2014 mr walker underwent second medical examination sonic health plus formerly kinetic request bechtel wa april 2014 medical assessment mr walker assessed fit duty hr ir manager wheatstone project walker april 2015 affidavit 30 35 37 annexure pwa 03 second medical examination mr walker disclosed type 2 diabetes walker april 2015 affidavit 36 would appear reason april 2014 medical assessment bechtel wa required medical assessment completed using paperwork provided aspen medical would review assessment least inference january 2014 medical assessment completed aspen medical form requirement wheatstone project personnel walker april 2015 affidavit 31 32 prior april 2014 medical assessment mr walker performing duty hr ir manager wheatstone project perth 4 april 2014 mr walker say received medical recommendation dr eaton aspen medical stating mr walker unfit mobilisation wheatstone project site medical recommendation requesting information transcript p 9 line 18 20 evident reference fourth category medical assessment referred 68 sometime april 2014 mr walker informed aspen medical recommendation mr king say mr walker conversation following effect mr walker aspen referring aspen medical allowing site diabetes unlawful discriminatory people diabetes medical condition required manage telling provide extra medical information mr king bechtel requirement need approve fit go site prevent unnecessary risk bechtel authorise mobilisation within erms adequately assessed suitability site mr walker unlawful king affidavit 53 mr king say respond mr walker although agree view considered mr walker entitled opinion mr king opinion king affidavit 54 mr weaver also say mr walker conversation approximately late april 2014 concerning april 2014 medical assessment weaver affidavit 73 mr weaver say mr walker appeared agitated referred fact another medical bechtel wa requesting information whether diabetes control mr walker said object whole process improper unreasonable discriminatory weaver affidavit 74 mr weaver say attempted reassure mr walker bechtel wa reasonable information likely used manage risk wheatstone project site particularly relation medical emergency went say follows bechtel asking information good faith need manage risk site medical emergency huge contract cape bechtel lot policy procedure need comply part overall risk management approach given size nature project opinion think request reasonable asked would provide information peter decide provide information good chance let site sure provision contract well state medical assessment get access site weaver affidavit 75 mr weaver say tone conciliatory coaching nature trying reassure mr walker nothing needed concerned relation request also made clear mr walker decision whether provided information bechtel wa weaver affidavit 77 mr weaver expressly denies saying word effect bechtel project could want orthe consent enabled bechtel whatever wanted medical information mr weaver say hold view weaver affidavit 78 mr weaver say mr walker indicate intended said little mr weaver response weaver affidavit 76 first occasion become aware requirement undertake medical assessment cape australia employee mr walker diabetes weaver affidavit 79 81 following conversation mr walker hear anything anyone else relation april 2014 medical assessment weaver affidavit 84 mr weaver account event disputed walker june 2015 affidavit m thomson say late april 2014 conversation mr walker following effect mr walker aspen absolute waste time issue process unlawful make get assessment done certain paperwork get decide go site m thomson mean site mr walker cape unfair peter work pluto referring similar large scale project bechtel risk project manage risk mr walker red tape trying squeeze money u unlawful peter process place issue thomson affidavit 51 m thomson say time conversation unaware comment bore relation april 2014 medical assessment thomson affidavit 52 mr walker denies ever conversation effect set 82 walker june 2015 affidavit 143 court view m thomson evidence conversation occurred preferred m thomson impressive witness cross examined relation conversation reason m thomson evidence accepted evidence mr walker alleged said consistent view mr walker otherwise expressed mr king mr weaver king affidavit 53 weaver affidavit 74 respectively cited 75 77 april 2014 mr walker corresponded aspen medical objecting medical recommendation via exchange email email set annexure pwa 04 walker april 2015 affidavit necessary refer email detail 4 april 2014 8 13am ashleigh davis medical pem coordinator wheatstone project aspen medical sent email mr walker referring attached medical recommendation appear attached mr walker response sent three day later weekend intervened 1 55pm follows hi ashleigh talk unable understand information sought relevant theinherent requirement actual positionof office based er ir manager increased risk health safety others different working role wheatstonethan location moreover possible restriction could put place issue whether risk needing medical attention wheatstone medical staff project wanting quantify bechtel chevron may want accept discrimination direct indirect 8 april 2014 7 40am m davis sent mr walker response follows hi peter please see dr eaton ashleighthis working anisolated areawith known medical condition associated various complication possibly require medical evacuation worse case scenario therefore important know condition well controlled individual compliant treatment minimise risk untoward event occurring isolated area hope suffice sincerelydr garth eatonthank youashleighforty five minute later mr walker responded following term hi ashleigh thank worked isolated far isolated wheatstone fifo site many year including manager responsible health safety site luxury gp site hospital within 30 minute medivac people site variety reason therefore fully understand issue risk associated remote site distant perth wheatstone isolated deeming person unfit merely minimise risk medical evacuation discrimination happy provide detail would help two medical role one merely different paperwork gps practice specialise assessment construction mining isolated site found mefully fit duty restriction criterion permitted used meet inherent requirement role ass person unfit role merely remove possibility ofworse casescenarios occurring inappropriate use medical information provided consented judgment control compliance gp medical condition role place others risk stress actual duty factor considered working height machinery equipment fully accept need make project safe possible everyone paragon health medical assessment relating health must within lawful boundary believe concern examining doctor would either advised restriction determined unfit neither additional layer assessment view unrelated fitness carry duty please advise m davis responded almost immediately indicating passing mr walker email dr eaton would let mr walker know response mr walker responded within minute following term many thanks deliberately difficult two gps advise fully fit one say unfit role surprised honest industrial relation specialist acutely aware law relating matter high risk job would issue admin role different working perth 30 minute hospital important medical assessment inadvertently evolve time make decision thing unrelated person job eight day later 16 april 2014 12 25pm m davis emailed mr walker following term please see response dr eaton regarding review state policy promulgated need confirmation diabetic especially medication going work isolated area eg wheatstone condition well controlled stable individual compliant treatment isolation important aspect case veronique asked status medical would please able advise anything else please hesitate ask little hour later mr walker responded m davis following term thank respond detail could please provided copy policy mentioned response unfortunately would expected consideration point rather mere reference policy well established law medical assessment cannot used screen illness unrelated specific task minimise cost inconvenience employer nothing related location site specific role increase risk others decline assessment basis somethingmayhappen discrimination assessment must ensure test ass current health status attempt predict future deterioration repeat wheatstone isolated think folly rely claim however purely hypothetical basis increase risk others different say albany location specific role direct correlation appearance complication issue appears response potential illness appears consequence sought project wanting screen anybody may become absent work require medical resource site employer permitted australian law screen people employment basis blanket policy eliminate worse case scenario permissible prevent complication thatmayappear regardless location task put another way even high likelihood complication occurring provided related role creates risk others still ground deny employment discrimination legislation effect decision dr eaton declaring unfit role without bothering determine inherent requirement role implementing blanket policy related achieving health standard rather individual health requirement likely result termination employment consider medical assessment misused purpose determining fitness inherent requirement role also repeat two doctor found fully fit without restriction upon personal examination discussion role confirms view current assessment unrelated role addition policy please advise exactly risk assessed identified relation inherent requirement specific role take matter would appreciate someone could telephone discus m davis responded five minute later relevantly following term passed email manager may able assist better understanding control hopefully case resolved soon hand jayne appears mr walker objected medical recommendation basis previous certification fitness type 2 diabetes view make le fit position hr ir manager involved manual labour 16 april 2014 bechtel wa occupational health co ordinator m alex preston contacted mr walker telephone requesting information relating type 2 diabetes said wheatstone project required manage risk problem occurring response mr walker asked m preston bechtel wa making assessment role rather employer cape australia andalso inquired risk bechtel wa trying manage mr walker say mr preston responded saying word effect wheatstone project site remote trying manage potential risk emergency would get someone contact mr walker discus matter walker april 2015 affidavit 41 16 april 2014 bechtel wa health safety manager mr wayne bank contacted mr walker telephone conversation ensued follows mr bank said would get bechtel wa legal team resolve issue mr walker indicated trying avoid complicating matter involving party referred certified fit role two occasion dr eaton finding unfit without reference inherent requirement role mr bank responded saying wheatstone project site remote bechtel wa policy seek information due potential risk medical evacuation issue related inherent requirement mr walker role said mr walker right limit risk assessment bechtel wa policy mr walker requested copy policy referred mr bank declined provide asked risk mr walker limit mr bank replied risk medically evacuated medical evacuation non work related discussion ensued nature condition wheatstone project site isolation fact bechtel wa use local hospital medical facility site following mr walker indicated given consent accessing personal medical information purpose pre employment medical assessment commercial concern minimising risk medical evacuation andmr bank sought mr walker consent release medical record could reviewed mr walker gave consent albeit protest try resolve matter walker april 2015 affidavit 42 mr walker say conclusion call mr bank mr king asked telephone call two worked open plan office mr king present time call mr walker gave mr king outline issue explained concern respect discrimination potential industrial relation issue future employee wheatstone project site mr king replied word effect give information walker april 2015 affidavit 43 45 mr king say conversation respect telephone call following effect mr walker talking bechtel medical information want unlawful ask provide peter mobilise erms unless approved work king affidavit 55 mr king expressly denies told mr walker give information meaning bechtel wa say substance conversation set 99 mr king say would instruct mr walker hand personal medical information bechtel wa within scope role function authority make request king affidavit 60 5 30pm 16 april 2014 mr walker sent mr bank email authorising mr bank access mr walker medical file mr bank replied minute later indicating would pursuing matter walker april 2015 affidavit 46 annexure pwa 05 mr walker say week later received telephone call mr king wheatstone project site advising mr bank unhappy angry questioned medical assessment approximately week later mr king telephoned mr walker wheatstone project site said word effect give bechtel wanted would mobilised walker april 2015 affidavit 47 48 time latter telephone call mr king referred mr walker say met mr weaver reference mr walker medical assessment asked mr weaver cape australia would take bechtel wa issue potential discrimination risk management relation cape australia employee mr walker say mr weaver said cape australia would nothing bechtel wa project could wanted referred clause 23 employment contract mr walker say mr weaver said consent cape australia furnish report arising medical examination cape australia client facilitate entry wheatstone project site walker april 2015 affidavit 49 50 mr walker say said mr weaver think consent allow bechtel wa use information improper purpose mr weaver said responded consent enabled bechtel wa whatever wanted medical information would duty care also wheatstone project biggest contract cape australia extremely important cape australia walker april 2015 affidavit 51 53 mr walker subsequently provided aspen medical copy letter general practitioner dated 7 april 2014 providing information regarding mr walker type 2 diabetes walker april 2015 affidavit 54 pwa06 april 2014 mr walker met mr weaver mr king mr weaver office cape australia office jandakot april 2014 jandakot meeting dispute said april 2014 jandakot meeting mr walker say april 2014 jandakot meeting mr king mr weaver said among thing word effect cape australia would intervene medical complaint bechtel wa could make request desired andthat bechtel wa contacted cape australia queried whether mr walker trouble maker walker april 2015 affidavit 105 cape australia say mr walker said aspen medical determined currently unfit deployed wheatstone project site subject providing information general practitioner type 2 diabetes reason demonstrate anything fit duty andthe wheatstone project site remote site town onslow nearby cape australia say mr weaver responded effect see issue employment contract required mr walker undertake medical examination facilitate access client site mr weaver would provide information requested matter mr walker decide significant difference perth onslow availability medical care event health incident may need evacuated perth andbechtel wa required information meet duty care obligation appeared reasonable health safety risk management request mr king mr weaver denied contacted bechtel wa bechtel wa queried whether mr walker trouble maker case mr walker say told go ahead provide information bechtel wa mr king mr weaver say say mr walker cape australia position alleged mr walker said concerning providing information simply occur court view mr king mr weaver whilst doubt exhibiting exasperation mr walker nevertheless relatively careful time court view likely said alleged said mr walker evidence mr king mr weaver say preferred even mr walker told provide information bechtel wa cape australia say prejudicial alteration mr walker employment position mr walker wanted mobilise wheatstone project site always case remained case bechtel wa determined whether anyone went onto wheatstone project site m thomson say attended meeting 2 may 2014 two representative bechtel wa m bassett m naaykens together mr walker discus requirement aspen medical assessment procedure put place cape australia m thomson say meeting became heated mr walker took exception bechtel wa process whereby would background verification check determine employee role suitability final say mobilised wheatstone project site based check m thomson say mr walker said word effect requirement bechtel right unlawful bechtel decide get site cape want mobilise someone right role one day one referring wheatstone project site personnel sue unfair treatment thomson affidavit 54 m thomson say toward end meeting mr walker went bathroom took opportunity apologise behalf cape australia mr walker conduct thomson affidavit 56 m thomson say spoke mr walker meeting indicated meeting go well nothing cape australia could bechtel wa mobilisation system point going mr walker indicated agree going investigate take response m thomson told leave thomson affidavit 58 m thomson say later day spoke mr weaver indicated concern way mr walker dealing bechtel wa making everything harder picking fight process place medical one want change except meeting bechtel wa saying process unlawful meeting got heated went bathroom m thomson apologise bechtel wa representative thomson affidavit 59 one purpose 2 may 2014 meeting m thomson hand relationship bechtel wa cape australia mr walker thomson affidavit 57 following 2 may 2014 meeting m thomson say feel comfortable even though matter mr walker area responsibility deter relevant bechtel wa team continuing liaise directly relation recruitment wheatstone project thomson affidavit 63 m thomson say 3 may 2014 telephoned m scott bechtel wa apologise way mr walker spoken two bechtel wa representative 2 may 2014 meeting enquired whether representative okay bechtel wa representative indicated bit taken aback mr walker bit aggressive thomson affidavit 62 court infer regard fact mr walker already given consent bechtel wa access medical record would need either mr king mr weaver indicate mr walker ought give bechtel wa medical information requested short bechtel wa already mr walker permission access medical information necessity either mr king mr weaver tell mr walker provide information early cross examination mr walker asked felt unjust required provide medical information responded unnecessary rather unjust transcript p 12 line 28 33 response given written oral evidence set mr walker conduct relevant time either untrue true mean mr walker protestation discriminatory conduct untrue either way adversely affect credibility evidence proceeding apparent issue one resulted adverse action consequence mr walker raising issue rather issue seems mr walker whilst disagreed policy provide medical information bechtel wa ultimately point two month prior mr walker ultimate dismissal employment matter concluded apart latent threat mr walker investigate matter stage sale alcoholbechtel wa policy position relation sale alcohol site mr walker alleges apparent discrepancy relation alcohol policy whether alcohol could taken away licensed premise premise open evidence way email dated 22 may 2014 exhibit 9 mr bradley cape australia addressed mr walker number people including mr king relation unopened alcohol detected room following mr king sent email referred open alcohol permitted taken away tavern drug alcohol policyon 20 march 2014 mr walker gave mr king mr uhlman cape australia project commercial manager draft copy letter suggested sent bechtel wa regarding drug alcohol policy walker april 2015 affidavit annexure 7 mr walker say purpose draft provide feedback suggestion improve policy remove inconsistency protect cape australia bechtel wa mr king want send letter reference drug alcohol policy email sent bechtel wa mr walker mr walker say seeking ventilate particular issue bechtel wa stage merely close prior discussion mr walker focus minor unimportant matter demonstrated cross examination transcript p 14 line 31 32 indicated part letter said part attempt align cape australia policy bechtel wa policy change word refrain phrase refrain consuming alcohol part policy abstain two word course mean thing shorter oxford english dictionary historical principle 3rdedn oxford clarendon press 1973 vol p 8 vol ii p 1779 stand downon 28 march 2014 mr walker raised mr mark bushel bechtel wa query concerning drug testing policy wheatstone project site whether standing suspension person positive drug test without pay 9 april 2014 mr walker told mr gray bechtel wa non negative result drug alcohol test meant employee would paid period employee stood mr walker sent mr gray lengthy response replete legal authority issue concluding understanding unless breach drug alcohol policy considered refusal work employer obliged pay employee requesting discussion issue email advice copied chamber commerce industry representative asked organisation position issue mr walker mr walker submitted response one sent good faith diplomatically raised issue thought required attention unprofessional generate conflict 11 april 2014 mr gray bechtel wa replied mr walker stating previous position indicating bechtel wa policy reviewed legal counsel going take matter mr walker 15 april 2014 sent mr king mr weaver mr bradley email suggesting cape australia obtain legal advice walker april 2015 affidavit annexure paw9 mr walker received response mr weaver week later asked mr weaver directly opinion say told cape australia would seeking legal advice mr weaver happy mr walker making inquiry made word effect contract worth much cape australia mr walker submits mr weaver response consistent mr weaver evidence weaver affidavit 92 mr weaver say told mr walker inquiry made outside remit mr walker duty important tell bechtel wa job andcape australia role contractor deliver upon work agreed reason mr walker engaged communication mr gray issue 7 may 2014 course email respect another issue thanks mr gray reply relation drug alcohol policy query go say amongst thing respectfully disagree position taken policy contrary well established authority andi doubt challenged prefer avoid seek guidance happens final communication mr walker good example cape australia say problem leading mr walker dismissal employment albeit part mr walker job review comment bechtel wa policy raised issue bechtel wa told bechtel wa proposed nothing told cape australia proposed seek legal advice respect happy mr walker done relation making inquiry relation issue mr walker saw fit course email unrelated issue express disagreement bechtel wa policy speculate future outcome action might understandable mr walker sought agitate issue within cape australia taking matter mr weaver following mr weaver response referred x mr weaver response made apparent cape australia happy mr walker making inquiry making least inferentially inquiry ought made directly bechtel wa possible effect commercial relationship bechtel wa cape australia mr walker response directly raise matter bechtel wa course dealing unrelated matter thus making complaint inquiry drug alcohol policy issue manner mr walker pursues deal issue case manner contrary express implied advice mr weaver complaint inquiry ought directed bechtel wa event cape australia planned take matter cross examination mr walker conceded researched judgment decision fair work commission federal court new south wale supreme court house lord relation issue order produce email replete authority unsuccessfully searched journal article concerning issue sending mr gray bechtel wa employee relation manager circumstance wher conceded told mr king trouble bechtel wa issue transcript pp 16 20 also considered cape australia minor issue one much secondary pressing issue mobilisation personnel wheatstone project site transcript pp 15 63 time wasted mining minutia irrelevant detail 73 80 82 weaver affidavit 88 king affidavit 6 therefore complaint inquiry issue cape australia rather conduct mr walker continuing pursue matter directed considered cape australia minor issue ought subject focus mr walker bhp coalat 20 per french cj kiefel j endeavour coalat 32 per jessup j bechtel wa policy positionsas part mr walker role hr ir manager reviewed commented bechtel wa policy relevant job done address potential issue might raised employee cape australia walker june 2015 affidavit 26 32 dispute bechtel wa reserved right prevent mobilisation site based medical assessment drug alcohol search policy interview check list guideline policy concerning room search policy respect sale alcohol andhad policy respect workcover claim history evidence court precise term policy position save interview check list guideline present purpose content policy largely immaterial event existence disputed unnecessary resolve whether policy position adopted cape australia suffices observe part cape australia agreement bechtel wa cape australia policy procedure required aligned bechtel wa policy procedure walker june 2015 affidavit 29 order expression support cape australia bechtel wa policy constitute adverse action necessary mr walker demonstrate expression support constituted adverse action context proceeding diminution right privilege entitlement matter enjoyed employment reason cape australia supporting relevant bechtel wa policy position save contractual obligation cape australia policy procedure aligned bechtel wa observation mr weaver provision information relation mr walker medical condition reasonable risk management measure difficult see evidence alleged support event matter assuming manifestation support support manifest adverse action prejudicial alteration mr walker position employment cape australia either alleged expression support expression made whenever made relation bechtel wa policy therefore adverse action fitness mobilisationit alleged adverse action taken mr walker cape australia unfit mobilisation wheatstone project site evidence establishes medical provider cape australia kinetic assessed mr walker twice occasion assessed fit work basis cape australia say never considered mr walker unfit mobilisation dispute mr walker also assessed aspen medical provider bechtel wa aspen make assessment taken highest mr walker unfit mobilisation provided aspen confirmation condition control complying treatment regimen assessment mr walker permanently unfit mobilisation rather would mobilised pending medical information provided ultimately provided mr walker court view case cape australia insisted mr walker provide information bechtel wa sought bechtel wa order ass mr walker respect fitness mobilise wheatstone project indicated see x court view mr walker required cape australia provide information best mr walker suggested provide information insisting provided adverse outcome effect instance cape australia mr walker court view cape australia ass mr walker unfit mobilisation wheatstone project made difference cape australia thought mr walker unfit mobilise even mr walker assessed unfit mobilisation worse position assessment would otherwise already considered unfit mobilise bechtel wa would make decision mobilisation andmobilising mr walker wheatstone project site required prior mr walker dismissal employment case mr walker mobilisation wheatstone project site dependent upon anything cape australia rather view bechtel wa aspen capacity bechtel wa medical provider nothing done cape australia altered position mr walker regard regard pertinent observe bechtel wa respondent proceeding longer respondent proceeding see 1 follows relation fitness mobilisation issue prejudicial alteration mr walker position employment cape australia therefore adverse action relation issue dismissal employmentsick leavefrom end may 2014 mr walker became ill flu like symptom continued attend work cape australia mr walker health continued deteriorate afternoon friday 13 june 2014 went home work early notifying mr geoff yeoman project commercial manager cape australia fact leaving worksite mr walker returned work tuesday 24 june 2014 mr walker subsequently received letter termination cape australia dated 26 june 2014 dismissalon 26 june 2014 mr walker dismissed employment cape australia following mr weaver meeting mr walker inform decision dismiss mr walker employment cape australia mr walker sent following letter cape australia dear peter termination employment discussion today confirm ongoing concern performance caused u lose trust confidence employment cape australia therefore terminated accordance clause 24 contract employment letter formal notification employment terminated effective close business thursday 26 june 2014 paid one month pay lieu notice notice payment applicable accrued entitlement paid nearest practicable pay run today date employee assistance program 1800 303 090 remain available next four week please ensure returned company property including limited equipment document confidential information intellectual property later close business monday 30 june 2014 remind ongoing obligation poach cape staff client least 12 month use cape australia confidential information time future peter wish well future endeavour sincerely geoff weaverhr directorthere dispute mr walker dismissal employment constituted adverse action mr weaver made decision dismiss mr walker employment 26 june 2014 mr weaver say basis decision mr walker poor performance caused lose trust confidence mr walker reason weaver affidavit 148 168 mr weaver met mr walker 26 june 2014 jandakot office informed decision dismiss mr walker employment told mr walker ground poor performance caused lose confidence mr walker weaver affidavit 163 necessary therefore examine cape australia reason dismissing mr walker whether mr walker dismissal occurred mr walker either exercised workplace right physical disability cape australia say dismissed mr walker concern performance specifically mr walker performance relation three matter follows unable unwilling deal administrative aspect role top role proven someone became fixated upon minor issue unable resolve issue andthat failed form good working relationship indeed formed bad toxic unproductive relationship co worker relation mr walker failing perform administrative aspect role generally top role evidence non preparation authority recruit form transcript p 105 line 10 13 function conceded accountable transcript p 38 line 16 20 non preparation failure finalise employment contract thomson affidavit 116 118 unilateral alteration employment contract weaver affidavit 110 114 thompson affidavit 119 transcript pp 107 108 non attendance interview see evidence m thompson transcript p 108 improper preparation interview note importance interview note recruitment process acknowledged mr walker cross examination transcript pp 35 36 exhibit 3 interview note prepared example incomplete illegible transcript pp 68 69 see court observation transcript p 143 incomplete aspect interview note seemingly often went aspect interviewee technical competence attested m thompson transcript pp 102 103 113 line 1 22 andthe non engagement heavy rigid driver transcript pp 105 106 unnecessary cape australia establish prove correct assessment mr walker performance proceeding issue whether performance related reason right unfair ultimately even reason dismissal wrong unfair case court consider provided designed intended camouflage prohibited reason court view case fact reasoning respect mr walker performance might wrong unfair alter basis reason prohibited reason relation whether mr walker exercising workplace right workplace right relied upon 341 1 c ii thefw act relating employee able make complaint inquiry relation employment law respect workplace right constituted complaint inquiry relation employment discussed 48 58 cape australia submitted mr walker exercise workplace right workplace right source complaint made founded particular instrument whether legislative quasi legislative award contract employment approach echo approach inshea 6 court presently constituted however prefers broader approach constitutes workplace right set inmurrihy adopts said federal court relation breadth phrase relation employment purpose 341 1 c ii thefw actingreater metropolitan cemetery trust 2 41 42 per bromberg j reason relation mr walker alleged complaint inquiry court view complaint concerning assessed unfit mobilisation objection providing medical information aspen matter clearly relate employment inquiry concerning searching accommodation wheatstone project site bechtel wa policy position relation thereto matter relation employment given meant mobilised wheatstone project site likewise inquiry concerning standing employee test positive drug alcohol without pay potentially matter relation employment given potential mobilisation wheatstone project site andthe complaint inquiry relating job candidate information workcover insistence bechtel wa cape australia complete interview checklist use interview checklist guideline query concerning legality lawfulness bechtel wa policy position sale alcohol matter relation mr walker employment relate duty required perform may effect relation mobilisation wheatstone project site comparegreater metropolitan cemetery trust 2 42 per bromberg j pilbara iron servicesat 69 per katzmann j meeting jandakot office mr weaver invited mr walker speak mr king needed clarification relation decision end mr walker employment weaver affidavit 164 mr walker spoke mr king telephone call initiated consequence mr weaver speaking mr king rather mr walker speaking mr king king affidavit 102 103 tellingly conversation mr king said mr walker word effect peter issue atrs lack contract employment etc behind atrs sit write thing contract control responsibility collaborative developed good relationship people cape bechtel took issue geoff office mean last comment taking medical information bechtel mobilise example fill confidence right job bringing risk project mean mobilise let go king affidavit 103 mr king gave evidence reason terminating mr walker employment limited mr walker performance attitude toward bechtel wa failure build constructive relationship role dismissed complaint inquiry raised proceeding king affidavit 105 106 court accepts evidence hearing attempt mr walker exculpate shortcoming respect recruitment activity arguing activity part role submission must fail court pointed hearing transcript p 130 inconsistent evidence recruitment function required undertaken mr walker hr ir manager see 20 c andthe general nature human resource function plain enough evidence particular m thomson mr walker either know term recruitment function court observed closing submission transcript p 131 gave impression know degree submission made counsel mr walker behalf acknowledged shortcoming endeavoured justify reason certain circumstance applicable mr walker employment period january april 2014 worked canning vale office primary office whereas recruitment team based jandakot mr king mr weaver mobilised wheatstone project site mr walker therefore operating remotely andthat sick leave period time late june 2014 circumstance particularly b assist mr walker senior management employee could expected might wherewithal work collaboratively appropriately colleague notwithstanding time different location worth observing evidence performance improve april 2014 thus seems immaterial fact two senior management employee mr walker required work operating remotely hardly impediment electronic age noting particular evidence disclosed significant communication email telephone availability skype conducting interview meeting transcript p 100 respect mr walker absence sick leave absence example somewhat minor nevertheless emblematic communication difficulty employee cape australia mr walker period time mr walker simply absent failed communicate absence anyone cape australia transcript p 115 thomson affidavit 97 106 likewise mr walker evidence provided example circumstance although employed manage significant difficulty managing people around example m chiplin whatever basis difficulty managing people appear difficulty unrelated complaint inquiry difficulty example performance issue mr king mr weaver appeared mr walker performance role court satisfied mr walker responsible matter mr king also mr weaver said constituted failure perform matter indeed failure perform role matter made view intending camouflage prohibited reason regard court prefers evidence mr king mr weaver mr walker relation matter responsible accountable two synonym accepts reliable evidence mr walker performing well role relation late april 2014 meeting mr walker performance discussed mr weaver mr king court accepts performance issue discussed stage mr walker including issue failure issue contract employment person employed wheatstone project site mr walker approach bechtel wa requirement medically assessed king affidavit 87 91 court accepts relation relevant concern held mr weaver mr king significant change mr walker performance prior dismissal employment weaver affidavit 93 97 second reason mr walker dismissal flow respect first issue respect performance namely likely try deal minor issue lacked capability resolve maturity sensitivity major issue question mr walker dealing non critical perceived mr weaver mr king minor issue rather major issue including critical issue mobilisation personnel wheatstone project site said fourth largest resource construction site world plainly enormous scale term size number personnel employed obvious concern see 140 king affidavit 80 relation critical issue including mobilisation personnel evidence mr walker ensuring area responsible properly managed relation contract employment obviously concern cape australia people commenced without contract employment issued mr walker manager responsible oversight issue raised late april 2014 meeting response described mr king court accepts issue contract employment job description king affidavit 86 mr walker response clearly demonstrates lack insight concern abrogation senior management employee responsibility managing area work concerned manner could described abrupt dogmatic evidence mr walker form good relationship co worker particular m thomson collaborative approach evidence numerous example failure form good relationship issue relationship court view sufficient establish matter concern one reason cape australia determining dismiss mr walker employment see weaver affidavit 152 154 thomson affidavit 93 96 fair observe evidence consistent said mr king mr weaver complaint inquiry made mr walker fact making complaint inquiry caused concern manner approach dealing people dealing issue caused cape australia concern ultimately caused cape australia dismiss mr walker cape australia concern fact mr walker made complaint inquiry certain matter rather way communicated complaint inquiry whilst connection back complaint inquiry connection provide reason mr walker dismissal comparebhp coalat 20 23 per french cj kiefel j endeavour coalat 32 per jessup j instance court satisfied evidence consistent reason given mr king mr weaver dismissal mr walker employment regard court accepts direct testimony mr king mr weaver director decision maker reason dismissal mr walker even reason dismissal given mr king mr walker able made matter fact evidence court still accepts reason dismissal mr walker case sufficient evidence view said formed mr king mr weaver court conclude even view incorrect still formed basis reason mr walker dismissal employment mr walker claim dismissed cape australia contravention 351 1 thefw actfor reason included physical disability type 2 diabetes mr walker claim respect cannot made court concluded reason dismissal mr walker employment cape australia based upon performance conduct relationship workplace simply evidence cape australia employee pertinently mr weaver mr king regard paid consideration mr walker type 2 diabetes determining mr walker ought dismissed employment regard observation made evidence whole court satisfied substantial operative reason mr walker dismissal related performance conduct relationship workplace perceived cape australia reason mr walker dismissal employment matter relation complaint inquiry exercise workplace right disability claimed follows allegation contravention general protection cape australia dismissing employment made conclusion ordersthe court concluded mr walker allegation contravention general protection cape australia dismissing employment 26 june 2014 made application amended 12 september 2014 must dismissed order accordingly court note reason provision 570 thefw actthis court fair work jurisdiction principally cost jurisdiction cost much exception cost rule construction forestry mining energy union others v clarke 2008 fcafc 143 2008 170 fcr 574 2008 176 ir 245at 28 30 per tamberlin gyles gilmour jj see also observation inceland v skycity adelaide pty ltd 2017 fcafc 222 2017 256 fcr 306 2017 274 ir 420at 70 74 89 per logan j 161 164 per bromberg j assuming cost payable seecross v harbour city ferry pty ltd harbour city ferry or 2 2017 fcca 1713 however cape australia considers might entitled cost application cost made r 21 02 1 thefederal circuit court rule 2001 cth certify preceding one hundred eighty five 185 paragraph true copy reason judgment judge antoni lucevassociate date 29 august 2019

Minister for Immigration and Border Protection v SZMTA & Anor [2018] HCATrans 34 (16 February 2018).txt

minister immigration border protection v szmta anor 2018 hcatrans 34 16 february 2018 last updated 20 february 2018 2018 hcatrans 034in high court australiaoffice registrysydney s245 2017b e w e e n minister immigration border protectionapplicantandszmtafirst respondentadministrative appeal tribunalsecond respondentapplication special leave appealkiefel cjgageler jtranscript proceedingsfrom brisbane video link sydneyon friday 16 february 2018 10 54 amcopyright high court australiamr g r kennett sc may please court appear withms r francoisfor applicant instructed clayton utz lawyer mr blount may please court appear learned friend mr p w bodisco first respondent instructed shelly legal kiefel cj thank sorry appear lectern able manage without one otherwise adjourn borrow one mr kennett manage honour kiefel cj mr kennett think might hear respondent mr kennett court plea kiefel cj thank mr blount honour reason say leave granted honour turn primary contention applicant honour erred relying mere possibility occurrence repeated concise statement special leave question arise state court relies speculation kiefel cj speaking would assisted able outline honour reasoning path mr blount honour reasoning path unhelpfully terribly well stated come back submission evidence base inference critical document support respondent 13 august 2010 fact regarded get honour reasoning respectful submission follows respondent knew department file relating respondent protection visa application tribunal tribunal say application book page 6 point 11 respondent also knew successful foi application made department file contained favourable document including email 13 august 2010 already referred particular document application book 112 respondent would expectation general law favourable document would read proper regard application respondent made commonwealth australia respondent know email 13 august 2010 referred covered section 438 certificate section 438 give discretion section 438 3 kiefel cj necessary show want procedural fairness relation document document client possession legal representative mr blount yes kiefel cj something know document point one know whether used reasoning mr blount believe evidence honour infer used kiefel cj something adverse document would course identify would mr blount yes kiefel cj hand something favourable would expected would rely upon hearing either way point something either adverse favour silence deafening document mr blount yes honour necessary point favourable document upon told decision maker kiefel cj point result document though point something likely occurred respect document mr blount yes kiefel cj whole point realm speculation mr blount understand honour respectful submission happened evidence honour infer particular document referring regard application book page 19 honour go bottom page 19 point 40 see tribunal say tribunal considered document letter support provided department honour go page page 20 see decision maker enumerated document support applicant enumeration document honour find document 13 august 2010 honour say right end judgment kiefel cj amongst document subject certificate mr blount yes kiefel cj say favour taken account mr blount yes kiefel cj point put forward denial procedural fairness mr blount reason put forward would necessity u kiefel cj would relied upon said favourable mr blount would great respect expected tribunal know business general law would take account favourable document fact know document sitting subject discretion part decision maker whether decision maker may regard content document know decision maker actually discretion kiefel cj point favourable know decision maker would put forward favourable would put forward mr blount respect honour although physically handed time tribunal hearing impression put forward front decision maker know received foi information know document know document front tribunal kiefel cj mention hope tribunal take view favour mr blount respect honour hope expectation tribunal carry duty procedurally fair way kiefel cj mention tribunal mr blount kiefel cj allow tribunal either fall error mr blount yes kiefel cj way could take advantage error way fall mr blount kiefel cj game playing mr blount yes sure positive thought went applicant mind kiefel cj sound mr blount may case kiefel cj perhaps strongest point mr blount second point would make application special leave really give rise point principle unusual fact underline fact document already produced applicant certificate nature 438 issued applicant unusual highly unlikely decision court would make respect particular fact would application beyond particular fact court would considering kiefel cj applicant special leave say approximately 916 case pending federal court involve non disclosurecertificates notification question drawing inference relying upon speculation relation establishing matter surrounding certificate question general importance mr blount would submission honour yes may case respect type certificate issued affidavit mr aharoni detail specificity particular matter beyond fact deal generally certificate present fact would assist court determining general outcome general principle might apply case submission return high unusual nature fact case suggesting reasonable vehicle determine point procedural fairness general way procedural fairness tends turn fact case certainly point would like make may honour honour expressed respect fact document front u inmzafzit quite clear assumption made judge case well material covered certificate adverse situation fact judge go far hypothesise material either neutral positive respect general principle previously talked saying really turn particular fact arise case also point legislation already refused application special leave already refused comparable legislation course case ofsingh honour case ofmzafzand case ofsinghare closely related singhdoes adopt reasoning process ofmzafzand case decided full court federal court denied special leave would also submit test honour applying derived fromaala whether applicant case denied possibility successful outcome informed certificate return argument honour said strong informed certificate way applicant able make submission discretion exercised take regard content certificate unless honour question kiefel cj thank need hear mr kennett grant special leave matter time estimate mr kennett would think half day honour kiefel cj yes would agree time mr blount mr blount yes honour kiefel cj yes thank would please ensure instructing solicitor obtain copy timetable need complied court adjourn reconstitute 11 08 matter concluded

R v Binder [1990] VicRp 50; [1990] VR 563 (11 August 1989).txt

r v binder 1990 vicrp 50 1990 vr 563 11 august 1989 r v bindersupreme court victoria appeal divisioncrockett 1 mark 2 nathan 3 jj26 27 june 11 august 1989appeals application leave appeal gerhard binder manfred langer sentence imposed county court melbourne fact stated judgment mark j grace solicitor applicant binder dr j f bleechmore applicant langer m weinberg qc dpp bj king rjh maidment crown crockett j relation application heard together advantage reading draft reason judgment prepared mark j published agree order proposes disposition application nothing add mark j application leave appeal manfred langer langer gerhard binder binder sentence imposed county court melbourne langer pleaded guilty knowingly concerned importation commercial quantity narcotic substance cocaine contrary s233b thecustoms act 1901 cth 1 may 1989 judge shea sentenced term imprisonment 15 year declined fix minimum period would eligible parole binder pleaded guilty imported australia contrary s233b 1 b thecustoms actnarcotic good consisting le trafficable quantity heroin 24 april 1989 judge hanlon sentenced eight year imprisonment declined fix minimum period eligibility parole maximum penalty offence langer pleaded guilty imprisonment life offence binder pleaded guilty imprisonment 25 year application heard together question raised whether failure learned judge gave similar reason fix minimum term attended error although sentence imposed offence commonwealth law accepted u s17 1 2 victorianpenalties sentence act 1985applied provide 17 1 subject sub 2 person convicted court offence sentenced imprisoned term imposed term natural life term le two year court must term imposed le two year le twelve month court may part sentence fix lesser term section called minimum term term imposed term person natural life least six month le term sentence offender shall eligible released parole 2 court shall required fix minimum term court considers nature offence antecedent offender render fixing minimum term inappropriate hand matter parole governed prisoner act 1967 cth s5 vest relevant discretion governor general australia s5 4 governor general required express parole order subject condition person relates shall parole period subject supervision parole officer appointed accordance order shall obey reasonable direction officer subject condition specified order langer member group least four person effected importation 6 332 kilogram cocaine relatively sophisticated ingenious method necessarily involved substantial preparation planning langer person named mitchell met south america time 1987 present time bolivia year mitchell australian returned 14 july 1987 langer arrived sydney 1 december 24 february 1988 delay applicant participated accepting delivery package frankfurt airport west germany detected contain cocaine cocaine concealed fabric trunk made compressed paper laminated panel held together metal frame panel impregnated cocaine required recovered process described cooking total amount pure cocaine originally trunk calculated 6 332 kilogram substitution made authority delivery langer result one kilogram remaining trunk came hand according evidence 6 332 kilogram cocaine wholesale value approximately 900 000 street level 3 1 million langer arrested 24 february 1988 tathra beach motor village near bega participated formal record interview signed day bega police station said received package favour friend made admission knowledge content carpenter living west germany certificate tendered behalf relevant west german authority indicating prior conviction accepted langer connection australia family tie visit solely purpose committing offence binder also west german national approximately 12 30 friday 4 november 1988 arrived melbourne airport passenger thai airline flight bangkok travelled federal republic germany passport resident thailand four year arrival melbourne airport binder searched found wearing two pair sock concealed two separate package one foot arch package consisted plastic bag containing white coloured substance later identified impure heroin weighing 97 5 gram 74 per cent 71 6 gram pure heroin street value sold gram 130 000 160 000 binder conveyed headquarters australian federal police melbourne tape recorded interview conducted admitted knowing substance concealed shoe heroin imported australia first gave untrue version plea judge hanlon officer federal police gave evidence later cooperative helpful given information proved accurate led attempt make arrest officer also agreed binder gave much information able cooperated making certain telephone call help inquiry put personal risk also said binder de facto wife living thailand came australia purpose committing offence passing sentence langer judge said langer 31 year age west german national prior conviction later regard circumstance consider appropriate sentence 15 year imprisonment sentence court given good deal consideration whether fix minimum term particular offence involving large quantity drug antecedent accused include fact foreign national connection country except enter australia purpose completing illicit importation render inappropriate opinion fix minimum term circumstance court obliged fix minimum term propose exercise discretion favour fixing minimum term case case binder judge said taking matter consideration sentence imprisoned period eight year regard background antecedent notably apart entering visitor right country seems would inappropriate set minimum period time would eligible parole citizen another country giving address country nevertheless resident another country circumstance seems inappropriate court set parole period therefore sentence confined imprisonment eight year set minimum term material court policy procedure department immigration regard deportation person convicted criminal offence victoria case prisoner foreign citizen australia temporary entry permit unders6of themigration act 1958 cth prisoner becomes prohibited non citizen unders7 3 period specified permit expires person may apply temporary entry permit remain australia unders7 2 policy department grant application unless applicant satisfies certain criterion including good character bona fide purpose remain australia prisoner may also apply grant entry permit remain australia permanently application granted satisfies condition set s6a 1 themigration act department determines prisoner satisfy condition deportation order may signed director department state victoria unders18on ground prisoner prohibited non citizen practice department execute order person released custody similarly informed practice policy attorney general department relation detention release person sentenced imprisonment commission federal offence federal offender sentenced imprisonment non parole period specified minister justice recommends prisoner released parole s5 prisoner act 1967 licence large unders19aof thecrimes act 1914 cth minister sign recommendation governor general approves form parole order licence large prisoner released completion non parole period deportation order signed offender may liable deported always released licence deported licence provides return australia licence period expired practice department immigration make decision regarding deportation close date person possibly released prison submitted mr weinberg qc director public prosecution commonwealth reality release prison whether completion head sentence non parole period langer binder deported counsel langer binder submitted minimum term fixed status foreign national prospect deportation learned judge mind relevant sentencing process also submitted discretion s17 2 thepenalties sentence act 1985to withhold minimum term required existence element nature offence antecedent offender proper exercise addition said exceptional circumstance justified withholding fixture minimum term mr grace solicitor binder contended judge case failed apply provision international covenant civil political right sentence effectively involved discrimination offender according nationality mr grace also submitted sentence binder manifestly excessive learned judge failed give sufficient weight assistance provided binder police mr weinberg qc submitted matter learned judge adverted properly within ambit antecedent provided s17 2 submitted judge proper exercise discretion entitled decline set minimum term also submitted necessary regard reality immediately release whether serving full term non parole period applicant would deported event said parole academic question authority would able supervise properly period parole would grant reason submitted fixing minimum term would effectively provide lesser sentence imposed australian citizen thus submitted australian citizen sentenced eight year minimum six would vulnerable service full term eight year alternatively supervision parole authority full eight year non citizen given sentence would deported expiration non parole period six year thus fully beyond law country time two year earlier time full release australian citizen two line authority bear question first might thought support submission director second put behalf langer binder r v hull 1969 90 wn pt 1 nsw 488 r v macaulay 1969 90 wn pt 1 nsw 682 r v chapman 1971 1 nswlr 544 new south wale court criminal appeal held undesirable specify non parole period sentence alien said parole system peculiarly appropriate prisoner rehabilitated locally many aspect inappropriate case prisoner alien observed latter two authority mere application said hull three decision however concern s4 3 parole prisoner act 1966 nsw expressed differently victorian counterpart s17 2 thepenalties sentence act 1985 new south wale provision referred antecedent character whereas s17 2 refers antecedent view adopted case expressed brinsden j dissenting judgment bensegger v r 1979 war 65 expressed similar view zaharoudis salihos 1986 22 crim r 233but relevant legislation radically amended majority bensegger considered liability deportation provide proper reason decline fix minimum term bensegger accordingly one second line case line might thought begun r v riche 1977 2 nswlr 876 new south wale court criminal appeal departed hull macaulay chapman although purporting distinguish riche street cj member court agreed said 878 mere fact offender french national facing prospect deportation justify withholding non parole period added mere fact foreign alien nationality constitute antecedent character provide basis relevant legislation withholding non parole period riche followed r v chi sun tsui 1985 1 nswlr 308 notwithstanding amendment power fix non parole period include taking account reason court considers sufficient r v mesdaghi 1979 2 nswlr 68 hull macaulay chapman finally laid rest street cj member court agreed said far case made relevant prospect deportation longer regarded correctly stating law s17 2 victorian act expressed language legislation considered authority comprising two line mentioned decision therefore necessarily matter choice word antecedent example think clearly wider antecedent character authority suggest restricted prior conviction may embrace relevant fact circumstance background past history offender see cobiac v liddy 1969 hca 26 1969 119 clr 257 past period sentence r v poulton 1974 vicrp 85 1974 vr 716 follows think matter learned judge referred declining fix minimum term capable within ambit antecedent s17 2 question however whether relevant antecedent opinion matter mentioned provided insufficient reason withholding minimum term save reference nature offence reliance appears placed langer binder foreign national connection tie australia come commit offence dishonest breach purpose given permit neither case judge refer prospect deportation matter refer result fixture minimum term inappropriate opinion proper exercise discretion s17 2 requires relevant connection antecedent punishment sentence reflects sentence court imposes end result process governed matter strictly relevant mere nationality opinion street cj correctly implied cannot properly thought aggravate crime provide foundation punishment director public prosecution commonwealth conceded similarly degree offender friend relative tie australia factor properly influence sentence adversely offender certainly cannot suggested person greater tie australia could regarded favourably sentence person le none director case seek support argument way understood submitted practice policy department immigration conjunction attorney general department cth taken account regard contended court must conclude minimum term fixed applicant serve term submitted end minimum term overwhelming probability would released licence deported accordingly contended unfair discrimination australian national sentence remains vulnerable serve full term alternatively submitted deportation one case would remove offender jurisdiction australian authority australian national even released parole would remain within think ready answer task court sentence offender basis accordance rule law equal law two offender one national non national receive according proper sentencing principle sentence case national minimum term fixed opinion proper court decline fix minimum term non national reference forecast effect executive policy service term imposed correct discharge sentencing function take account possible effect present executive policy term imprisonment court proposes think direct analogy circumstance considered court r v yates 1985 vicrp 3 1985 vr 41 five member convened enable entertainment argument long standing precedent r v douglas 1959 vicrp 28 1959 vr 182was leading example effect remission prisoner ignored sentencing process reviewed upshot court yates murphy j dissenting confirmed victoria law many year since yates course statute amended light court observation however context law stood yates decided trial judge entitled take account possibility remission arriving appropriate sentence 46 majority said task sentencing judge impose punishment circumstance considers appropriate offence offender judge imposing custodial sentence assume offender would probably earn full remission could give effect probability increasing length term imprisonment would otherwise imposed would imposing sentence thought appropriate something act would contrary principle also contrary clear intention parliament 47 court concerned control extent sentence imposed actually carried court would clearly acting contrary legislation instance increase would otherwise appropriate sentence amount part amount remission might earned would act contrary law court attempt sentence exclude prerogative crown grant early release prisoner sentenced imprisonment term natural life could think equally said withholding minimum term present case court foreclosed chance langer binder released expiration head term removed governor general discretion grant parole majority yates reminded u said court r v governor majesty gaol pentridge ex parte cusmano 1966 vicrp 78 1966 vr 583 587 duty sentencing judge impose sentence appropriate offence relevant circumstance turn fix minimum term permissible light duration sentence imposed power v r 1974 hca 26 1974 131 clr 623 628 9 four member high court said indeed think misnomer refer minimum sentence maximum sentence truth one sentence imposed trial judge cannot altered paroling authority see also r v campbell godfrey moran 1970 vicrp 16 1970 vr 120 130 r v bruce 1971 vicrp 80 1971 vr 656 657 r v currey 1975 vicrp 63 1975 vr 647this court held proviso s190 1 thesocial welfare act 1970 predecessor s17 2 thepenalties sentence act 1985 given operation allow example suitability offender parole relevant consideration exercise discretion confers 650 young cj member court agreed said however hesitation come conclusion proviso s190 1 given wide operation come conclusion purpose fixing minimum term determine convicted person eligible parole concerned suitability parole whether person released parole entirely matter parole board court part decision question honour went say s190 concerned lessening punitive aspect sentence imposed direction given parliament honour said therefore seen direction minimum term fixed unless court opinion nature offence antecedent offender offender entitled benefit lessening burden punishment inflicted upon clear enough opinion present case mere lack tie australia status foreign nationality matter punishment one militate lessening burden punishment power held court determine minimum period according accepted principle sentencing offender imprisoned held erroneous fix non parole period shortest time required paroling authority form proper view rehabilitation prospect offender approach high court power opinion consistent court currey particularly said 627 judge fixing non parole period must believe regard time within paroling authority must consider prisoner case time prisoner must remain confinement honour went emphasise separation function trial judge parole board clearly expressed policy relevant legislation chi sun tsui street cj 310 observed two matter serving sentence passed criminal court implementing immigration law stand entirely separate compartment power 629 four judge said read legislation way suggested fulfils legislative intention gathered term act ie provide mitigation punishment prisoner favour rehabilitation conditional freedom appropriate prisoner served minimum time judge determines justice requires must serve regard circumstance offence opinion court imposing sentence according proper sentencing principle regard relevant save expressly required statute thepenalties sentence actnow possible effect executive policy extent sentence imposed actually served bensegger court criminal appeal western australia similarly apprised executive practice policy emphasised director similar argument addressed burt cj one majority said 71 unthinkable court ignore criterion laid exercise discretion decline make order fix minimum term intention expressed unexpressed operate deny occasion exercise governor general discretion conferred upon statute whether exists practice discretion minister usually exercised agree observation honour went refer unreported decision western australia monaim osman v r 21 june 1972 court said fact applicant home egypt likely remain state release custody circumstance said relate nature offence antecedent matter required considered court render fixing minimum term inappropriate burt cj expressed opinion also opinion true apparent reason sentence given case set neither judge expressly said relevancy attached antecedent mentioned reason director submitted relevancy could relation possibility deportation like prospective factor regard reality relevancy sought shown unaware follows discretion miscarried judge took account consideration reason believe irrelevant would accordingly allow appeal fix minimum term although nature offence must regarded grave langer particularly grave court rarely ever declined fix minimum term analogous circumstance case binder would disturb head sentence eight year although inclined think sentencing judge take account professed assistance binder given police little high side think appears information provided range sentence subject offence recent year court seen fit impose course clearly established assistance information provided offender police given due weight favour sentence r v golding 1980 3 crim r 26 r v mcgookin robinson 1986 20 crim r 438 r v perez vargas 1987 8 nswlr 559and r v wood unreported victorian court criminal appeal 2 may 1989 propose allowance regard reflected minimum term circumstance propose binder sentenced term imprisonment eight year court fix period five year becomes eligible parole case langer conceded period 15 year properly within range sentencing discretion regard length would propose court fix period 12 year langer becomes eligible parole nathan j advantage reading judgment mark j draft form concur conclusion upon fact law namely matter foreign nationality residence lack connection australia fall within ambit antecedent referred s17 2 thepenalties sentence act 1985 also concur conclusion reason court regard relevant possible effect executive policy extent sentence imposed actually served offender may ultimately certainly deported however cannot find fault manner trial judge exercised discretion fix minimum term concluded judge regard prospective possibility restricted somewhat tartly wholly antecedent matter quote word trial judge first langer judge reciting offender age nationality lack prior conviction quantity drug relevant consideration said antecedent accused include fact foreign national connection country except enter purpose completing illicit importation matter binder trial judge said regard background antecedent notably apart entering visitor right country seems would inappropriate set minimum period would eligible parole citizen another country giving address country nevertheless resident another country necessary refer reason view judge base discretion upon prospect future deportation executive decision specifically tied fact foreign nationality langer case foreign residence binder case fact neither connection australia transiently purpose committing crime compelling inference available judge concluded neither could expected remain australia expiration prison term neither langer binder would obtain benefit lessening burden imprisonment service parole period discretion exercised act must viewed context parole system s17 within division act entitled fixing minimum term served parole granted find judge historical examination concludes parole served likely served would inappropriate proper exercise specific discretion given act may fix minimum term could trigger service parole period consider similar issue raised resolved r v currey 1975 vicrp 63 1975 vr 647 case middle aged bank officer defrauded employer trial judge said view course law breaking isolated event life think regard antecedent domestic educational social nature regard nature particular offence likely offend view suitable subject placed probation upon appeal chief justice reviewing term thenpenal reform act 1956which almost identical term s17 said 650 cannot opinion doubted introduction 1956 penal reform intended lessen burden punishment upon prisoner provide earlier release gaol circumstance merit provide rehabilitation supervision prisoner released court affirmed issue eligibility offender parole whether applicant suitable candidate supervision see also r v marjoribanks 1962 vicrp 16 1962 vr 110 chief justice said 650 come conclusion purpose fixing minimum term determine whether convicted person eligible parole concerned suitability parole whether prisoner released parole entirely matter parole board fundamental purpose parole underscored chief justice returning offender host community follows prospect return purpose imposing sentence parole may become ingredient turn compass word antecedent section widely drawn see cobiac v liddy 1969 hca 26 1969 119 clr 257 r v poulton 1974 vicrp 85 1974 vr 716and r v bruce 1971 vicrp 80 1971 vr 656 term restricted antecedent criminal history offender made referable antecedent fact could render fixing minimum term inappropriate thus issue assessing appropriateness penalty respect antecedent matter peculiar offender fall within ambit section must necessarily vary case antecedent defined oxford english dictionary merely past event person life event person history relevant sentence case past event trial judge referred highly pertinent predicate upon eligibility parole based offender community may benefit service continuing supervision offender parole period may assist rehabilitation fulfil function criminal law therefore parole system place sentence either applicant much revealed antecedent referred judge neither showed connection nexus australia characterisation transient visit country appears accurate came solely exclusively purpose prosecuting illegal transaction trial judge found antecedent fact foreign residence foreign nationality allied inextricably connected lack connection australia important antecedent consideration fact foreign nationality nationality attached lack prior residence australia exercised judge mind trite observe may many foreign national resident country could well eligible suitable subject parole sentence determined accordingly case judge found converse foreign resident prior connection australia likely amenable parole pre existing fact hence exercised discretion view quite properly fix minimum term issue probable deportation subsequent executive decision parole licence trial judge constructed purpose appeal consider impugn way trial judge exercised discretion reason appeal dismissed appeal allowed solicitor applicant binder grace macgregor solicitor applicant langer ellinghaus lindner solicitor respondent j buckley solicitor director public prosecution cr willlams

Lloyd Helicopters Pty Ltd v Civil Aviation Safety Authority (No 2) [2014] FCA 1070 (2 October 2014).txt

lloyd helicopter pty ltd v civil aviation safety authority 2 2014 fca 1070 2 october 2014 last updated 3 october 2014federal court australialloyd helicopter pty ltd v civil aviation safety authority 2 2014 fca 1070citation lloyd helicopter pty ltd v civil aviation safety authority 2 2014 fca 1070parties lloyd helicopter pty ltd v civil aviation safety authority desmond john byfield greg dealfile number nsd 828 2014judge griffith jdate judgment 2 october 2014catchwords administrative law practice procedure interlocutory application strike point claim discovery category sought set aside application dismissedlegislation civil aviation act 1988 cth 9acases cited ebner v official trustee bankruptcy 2000 hca 63 2000 205 clr 337lloyd helicopter pty ltd v civil aviation safety authority 2014 fca 1009minister aboriginal affair v peko wallsend ltd 1986 hca 40 1986 162 clr 24nadh 2001 v minister immigration multicultural indigenous affair 2004 fcafc 328 2004 214 alr 264date hearing 2 october 2014place sydneydivision general divisioncategory catchwordsnumber paragraph 18counsel applicant mr sullivan qc mr brennansolicitors applicant norton whitecounsel respondent mr b shieldssolicitors respondent legal branch civil aviation safety authorityin federal court australianew south wale district registrygeneral divisionnsd 828 2014between lloyd helicopter pty ltdapplicantand civil aviation safety authorityfirst respondentdesmond john byfieldsecond respondentgreg dealthird respondentjudge griffith jdate order 2 october 2014where made sydneythe court order interlocutory application dismissed applicant interlocutory application pay respondent cost respondent file serve point defence 8 october 2014 note entry order dealt rule 39 32 thefederal court rule 2011 federal court australianew south wale district registrygeneral divisionnsd 828 2014between lloyd helicopter pty ltdapplicantand civil aviation safety authorityfirst respondentdesmond john byfieldsecond respondentgreg dealthird respondentjudge griffith jdate 2 october 2014place sydneyreasons judgmentthe court interlocutory application filed respondent proceeding proceeding nature judicial review judicial review application challenge conduct civil aviation safety authority casa also decision casa resulted cancellation exemption granted applicant nature exemption applicant entitled manage rostering deployment flight crew accordance fleet risk management system exempt requirement would otherwise apply civil aviation order 48 substantive application heard five day period commencing 10 november 2014 applicant filed amended originating process amended point claim point claim subject interlocutory application today dated 22 september 2014 point claim mr shield appeared casa pointed somewhat unusual judicial review application particularly reference length point claim 58 page long contain 475 paragraph view casa interlocutory application casa yet filed defence response point claim order made 5 september 2014 casa directed serve point defence 26 september 2014 also directed amended originating process point claim filed served applicant 19 september 2014 indicated point claim subject existing dispute filed served 22 september 2014 interlocutory application seek strike many paragraph point claim various ground return moment also seek set aside court order consent discovery proceed way category also deal moment mr shield objection pleading fall various category first category paragraph complains 96 117 contain allegation directed officer casa involved conduct audit culminated cancellation decision serious allegation made officer arising prior employment applicant resulted terminated 2005 event leading decision express view stage whether substance allegation made raise serious matter authority clear stage proceeding court proceed basis allegation fact pleaded ought accepted substance particularly absence point defence part respondent seems proper approach court proceed basis allegation fact made good whether case course hasten add remains seen accepting proper approach stage court cannot accept casa submission allegation made rubric actual ostensible bias unarguable ought struck mr shield argued heart bias claim directed mr skeldon proposition enmity towards applicant mr shield said enmity alone would sufficient make good case actual ostensible bias accept sufficient disable applicant relying pleading concerning actual ostensible bias part point claim course matter applicant trial make good factual matter pleaded mr skeldon also persuade court factual matter produce actual ostensible bias decision maker part court expect hear argument issue nature extent mr skeldon involvement conduct leading making cancellation decision impact involvement mr byfield ultimate decision maker clear ample scope party take different viewpoint type matter seems matter arguable permitted go trial second category paragraph objection taken relating safety air navigation particular 456 466 point claim paragraph one view appear raise matter going merit choosing approach safety air navigation prefers compliance civil aviation order 48 contrast approach reflected exemption applicant enjoyed cancelled regard 466 pleading evident applicant intention raise apeko wallsendinspired failure take account mandatory relevant consideration argument seeminister aboriginal affair v peko wallsend ltd 1986 hca 40 1986 162 clr 24 reference obligation casa unders 9aof thecivil aviation act 1988 cth regard safety air navigation important consideration exercise regulatory power function referring approach taken stage proceeding pleading defence issued prepared find stage allegation failure take account mandatory relevant consideration without substance matter ought go trial without expressing view ultimate prospect argument succeeding third category paragraph objection taken 36 95 point claim paragraph many way similar paragraph relating mr skeldon raise series matter concerning casa employee alleged role conduct audit process leading making cancellation decision mr shield say ought struck relate event directly concerned decision subject challenge consider however matter appear raised support argument pattern conduct informs applicant case actual ostensible bias similar reason given regarding mr skeldon satisfied paragraph point claim ought struck drew party attention respect tonadh 2001 v minister immigration multicultural indigenous affair 2004 fcafc 328 2004 214 alr 264at 115 remains seen whether mr sullivan qc persuade court client case fit within principle allsop j honour alluded decision context ostensible bias nevertheless consider allegation ought allowed go forward applicant given opportunity persuade court allegation made good relevant requirement laid inebner v official trustee bankruptcy 2000 hca 63 2000 205 clr 337are satisfied fourth category paragraph objection taken 141 161 point claim paragraph relate main event concerning conduct 2014 audit mr shield complains substance pleading going evidence rather material fact appears many paragraph fact nature narrative chronology seems however unacceptable case bias unreasonableness forefront judicial review challenge also consider many event matter raised would appear go question nature extent participation allegation bias directly made consider matter allowed go forward trial fully understand mr shield complaint consequence allowing matter proceed trial require court make finding fact large range matter somewhat unusual judicial review case unusual judicial review case prominence given bias actual ostensible multiple allegation unreasonableness decision making fact hearing determination take considerable time sufficient pleading struck respect matter raised applicant also take account indication given mr sullivan qc appeared mr brennan behalf applicant written submission long party adopt disciplined approach matter capable heard determined within five day allocated trust assessment correct made clear court five allocated day purpose mr sullivan qc included outline submission 104 timetable directed ensuring matter completed within five day face timetable seems reasonable second aspect interlocutory application relates discovery applicant seek order discovery made consent 5 september 2014 set aside reference made category discovery unnecessary burdensome understood case correctly mr shield say category least unnecessary relate matter directly concerned decision cancel exemption mr shield acknowledged matter respect earlier objection directed point claim relate regulatory engagement applicant business casa indicated satisfied applicant precluded taking case trial insofar allegation concerning bias unreasonableness concerned necessarily follows category discovery relating matter ought set aside point circumstance date respondent filed point defence indicated earlier interlocutory application seelloyd helicopter pty ltd v civil aviation safety authority 2014 fca 1009 dispute discovery meaningful conducted within proper pleading framework framework exist without benefit seeing casa response point claim also emphasise mr shield emphasised argument many allegation fact especially serious nature relating actual ostensible bias contested reason would dismiss interlocutory application order applicant interlocutory application pay respondent cost certify preceding eighteen 18 numbered paragraph true copy reason judgment herein honourable justice griffith associate dated 2 october 2014

Australian Competition & Consumer Commission v Radio Rentals Limited (with Corrigendum dated 24 August 2005) [2005] FCA 1133 (17 August 2005).txt

australian competition consumer commission v radio rental limited corrigendum dated 24 august 2005 2005 fca 1133 17 august 2005 last updated 24 august 2005federal court australiaaustralian competition consumer commission v radio rental limited 2005 fca 1133corrigendumaustralian competition consumer commission v radio rental limited acn 007 527 782 walker store pty ltd trading rent acn 007 973 962 844 2003finn jadelaide17 august 2005 corrigendum 24 august 2005 federal court australiasouth australia district registry 844 2003between australian competition consumer commissionapplicantand radio rental limitedacn 007 527 782first respondentwalker store pty ltd trading rent acn 007 973 962second respondentjudge finn jdate order 17 august 2005where made adelaidecorrigendum1 page 10 par 30 reason judgment delete partner insert flat mate certify preceding one 1 paragraph true copy corrigendum reason judgment herein honourable justice finn associate dated 24 august 2005federal court australiaaustralian competition consumer commission v radio rental limited 2005 fca 1133trade practice unconscionable conduct 51aa 51abtrade practice act 1974considered retailer mentally incapacitated customer multiple dealing frequent service telephone call whether retailer knew ought known customer disadvantagetrade practice unconscionable conduct unwritten law basis unconscionable dealing doctrine limit knowledge requirementcorporations aggregation knowledge possessed employee proof knowledge purpose unconscionable dealing doctrinetrade practice act 1974 cth 51aa 51absocial security act 1991 cth australian competition consumer commission v c g berbatis holding pty ltd 2003 hca 18 2003 214 clr 51citedcommercial bank australia ltd v amadio 1983 hca 14 1983 151 clr 447discussedbridgewater v leahy 1998 hca 66 1998 194 clr 457citedhart v connor 1985 ukpc 1 1985 ac 1000citedblomley v ryan 1956 hca 81 1956 99 clr 362referred toaustralian competition consumer commission v samton holding pty ltd 2002 117 fcr 301 citedlouth v diprose 1992 hca 61 1992 175 clr 621discussedmicarone v perpetual trustee australia ltd 1999 sasc 265 1999 75 sasr 1citedmelverton v commonwealth development bank australia scnsw 30 june 1989 citedowen gutch v homan 1853 engr 883 1853 4 hlc 997citedgarcia v national australia bank ltd 1998 hca 48 1998 194 clr 395citedaustralian competition consumer commission v simply knead franchising pty ltd 2000 fca 1365 2000 104 fcr 253citedaustralian competition consumer commission v c g berbatis holding pty ltd 2 2000 fca 2 2000 96 fcr 491citedcameron v qantas airway ltd 1995 fca 1304 1994 55 fcr 147citedjones v dunkel 1959 hca 8 1959 101 clr 298consideredhurley v mcdonald australia pty ltd 1999 fca 1728 2000 atpr 41 741citedgarry rogers motor aust pty ltd v subaru aust pty ltd 1999 fca 903 1999 atpr 41 703citedaustralian competition consumer commission v keshow 2005 fca 558citedre hih insurance ltd prov liq hih casualty general insurance ltd prov liq 2002 nswsc 171 2002 41 acsr 72citedcubillo v commonwealth 2 2000 fca 1084 2000 103 fcr 1citedkrakowski v eurolynx property ltd 1995 183 clr 563not followedmacquarie bank ltd v sixty fourth throne pty ltd 1998 3 vr 133discussedre chisum service pty ltd 1982 1 aclc 292referred tobeach petroleum n l v johnson 1993 fca 283 1993 115 alr 411citeddunlop v woollahra municipal council 1975 2 nswlr 447citedelliot v nanda 2001 fca 418 2000 111 fcr 240citedstern v mcarthur 1988 hca 51 1988 165 clr 489citedquistclose investment ltd v roll razor ltd 1970 ac 567 citedaustralian competition consumer commission v radio rental limited acn 007 527 782 walker store pty ltd trading rent acn 007 973 962 844 2003finn jadelaide17 august 2005in federal court australiasouth australia district registry 844 2003between australian competition consumer commissionapplicantand radio rental limitedacn 007 527 782first respondentwalker store pty ltd trading rent acn 007 973 962second respondentjudge finn jdate order 17 august 2005where made adelaidethe court order 1 application dismissed 2 applicant pay respondent cost application note settlement entry order dealt order 36 federal court rule federal court australiasouth australia district registry 844 2003between australian competition consumer commissionapplicantand radio rental limitedacn 007 527 782first respondentwalker store pty ltd trading rent acn 007 973 962second respondentjudge finn jdate 17 august 2005place adelaidereasons judgmenta principal claim 81 applicable principle 9 section 51aa thetrade practice act10 ii section 51ab thetrade practice act232 mr groth 25 personal history 25 ii personal circumstance 38radio rental walker store 61mr groth dealing radio rental walker store 69 agreement 75 ii credit application 120 iii service provision mr groth 134 iv telephone call radio rental 139witness issue adverse inference 148consideration 153conclusion principal claim 197the ancillary claim 204 raising service agreement without mr groth knowledge consent 206 ii transferring overpaid fund one agreement another without consent 212 iii accepting return good 216conclusions 2181 proceeding concern dealing ronald groth radio rental ltd radio rental walker store pty ltd walker store walker store operated agency radio rental radio rental retailer walker store leased electrical good mr groth intellectual disability schizophrenic illness receipt disability pension sole source income period november 1996 october 2002 entered fifteen rental two loan nineteen service agreement radio rental three rental agreement walker store related electrical good payment made agreement totalled 20 700 43 2 australian competition consumer commission accc proceeded two company thetrade practice act 1974 cth tp act alleges entering enforcing thirty nine agreement company guilty unconscionable conduct purpose 51aa 51ab act put shortly matter raise issue importance consumer may able adequately manage affair retailer dealing person 3 unconscionable conduct alleged company entering respective agreement mr groth pleaded following term company knew ought known mr groth presentation verbal skill 1 mr groth person intellectual disability 2 mr groth could read agreement 3 mr groth could understand term condition agreement 4 mr groth unable understand right option benefit agreement 5 mr groth unable make worthwhile judgment whether entering agreement best interest knew ought known record 6 unlikely best interest mr groth enter agreement radio rental walker store 7 mr groth recipient disability pension sole source income time knew ought known record 8 credit application completed employee contained information incorrect unrealistic inadequate 9 mr groth monthly liability radio rental walker store ranged 267 01 365 61 10 mr groth monthly liability radio rental walker store ranged 30 2 40 5 income 11 mr groth monthly liability radio rental walker store would result financial hardship whereby generally unable afford basic necessity living food clothing accommodation health travel expense essential utility general household expense incidental personal expense 12 mr groth actual monthly payment radio rental walker store significantly greater monthly liability radio rental walker store would result financial hardship whereby generally unable afford basic necessity living food clothing accommodation health travel expense essential utility general household expense incidental personal expense alleged well company know matter recklessly indifferent 4 additional principal claim three ancillary complaint unconscionable conduct made radio rental relating raising service agreement without mr groth consent ii transferring fund one agreement another without consent iii accepting return good substantial payment deal separately later reason 5 critical issue raised accc pleading relate radio rental knew reason know employee mr groth capacity personal circumstance result dealing record though mr groth range radio rental employee gave evidence unsurprising significant period time spanned agreement recollection witness dimmed point many instance either quite incomplete non existent accc consequence attempted structure case measure around inferred company record mr groth banking record financial dealing commitment 6 one consequence emphasis documentary evidence trial m strong sc closing address accc became apparent accc seeking mount single claim unconscionable conduct founded cumulatively compositely twelve matter set took mr groth intellectual disability starting point would note passing relief sought amended application par 1 amended statement claim par 95 97 suggested case composite one accc written outline opening rather accc end seeking propound two distinct claim unconscionable conduct first put shortly composite claim second free standing claim two company took advantage mr groth known financial circumstance 7 later indicate consider new claim ought accepted given pleaded state evidence financial hardship principal claim8 ease exposition refer first applicable legal principle matter secondly mr groth condition capacity personal circumstance thirdly various agreement entered mr groth related dealing radio rental 1 applicable principles9 two distinct body law necessary make reference first relates 51aa tp act second 51ab act considering section individually note common ground party prerequisite satisfied whether respondent conduct unconscionable purpose either section section 51aa thetrade practice act10 section provides 1 corporation must trade commerce engage conduct unconscionable within meaning unwritten law time time state territory 2 section apply conduct prohibited section 51ab 51ac 11 whatever may outer reach provision seeaustralian competition consumer commission v c g berbatis holding pty ltd 2003 hca 18 2003 214 clr 51at 42 46 accepted side proceeding presently relevant specie unconscionable conduct unconscionable dealing doctrine expounded particular high court incommercial bank australia ltd v amadio 1983 hca 14 1983 151 clr 447 see alsobridgewater v leahy 1998 hca 66 1998 194 clr 457 see generally bigwood exploitative contract ch 6 2003 put short form doctrine involves knowing exploitation one party special disadvantage another dealing cfberbatis holding pty ltd 5 bridgewater 75 76 whether active conduct exploiter part passive acceptance benefit unconscionable circumstance hart v connor 1985 ukpc 1 1985 ac 1000at 1024 12 dealing contractual exploitation often evidenced inadequacy consideration moving stronger party amadio 475 see bigwood 267 ff nonetheless contractual dealing may context unconscionable notwithstanding adequacy consideration ibid 13 referred passive exploitation adequacy consideration reason present proceeding unconscionable conduct alleged radio rental relates primarily passive exploitation involve assertion inadequacy consideration particular agreement 14 constitute position special disadvantage vi à vi another exemplified many case convenient collection case see bigwood 239 246 circumstance condition position person dealing refer illustrative purpose fullagar j exemplifying catalogue inblomley v ryan 1956 hca 81 1956 99 clr 362at 405 poverty need kind sickness age sex infirmity body mind drunkenness illiteracy lack education lack assistance explanation assistance explanation necessary important qualification special disadvantage criterion requirement disadvantage special mason j commented inamadio 462 qualify word disadvantage adjective special order disavow suggestion principle applies whenever difference bargaining power party order emphasize disabling condition circumstance one seriously affect ability innocent party make judgment best interest party know ought know existence condition circumstance effect innocent party 15 matter unnecessary consider possible reach special disadvantage requirement called circumstance transactional see bigwood 242 ff situational e g australian competition consumer commission v samton holding pty ltd 2002 117 fcr 301 318 disadvantage type disadvantage accc alleges mr groth suffered well recognised one 16 critically purpose present application requirement unfair unconscientious advantage taken opportunity created one party position disadvantage vi à vi amadioat 462 raise contentious question knowledge one party required position special disadvantage unconscionable dealing doctrine attracted 17 turning case law matter necessary emphasise understand well accepted proposition function unconscionable dealing doctrine simply relieve person improvident bargain e contractual imbalance hart v connor 1024 party failure fact conserve interest dealing deane j observed inlouth v diprose 1992 hca 61 1992 175 clr 621at 638 intervention equity merely relieve plaintiff consequence foolishness ii central purpose doctrine relieve taking unconscientious advantage amadioat 462 exploitation victimisation another hart v connorat 1024 bridgewater v leahyat 75 76 louth v diproseat 638 short relieve abuse power possessed one party virtue position special disadvantage 18 dominant party conduct characterised unconscionable stigmatised wrongful party necessarily must actually must properly able regarded knowledge position special disadvantage vi à vi micarone v perpetual trustee australia ltd 1999 sasc 265 1999 75 sasr 1at 584 melverton v commonwealth development bank australia scnsw 30 june 1989 hodgson j use language mason j inamadio 462 must shown dominant party know orought know existence innocent party disabling condition circumstance effect 19 considerable scholarly debate country reach given ought know part argued stray far standard actual knowledge see example bigwood 250 ff attenuated level knowledge required said doctrine becomes disconnected animating purpose proscribing advantage taking exploitation becomes device correcting defective consent contractual imbalance ibid see also duggan unconscientious dealing parkinson ed principle equity 146 148 2nded 2003 contrast burn equitable doctrine unconscionable dealing elderly australia 2003 29 monash ulr 342 whatever merit view past expressed like opinion see example equity contract finn ed essay contract 140 142 present moment contour australian law matter reasonably settled binding 20 accepted starting point today isamadio scase addition know ought know observation mason j later elaborated knowledge requirement 467 following term actual knowledge b occupies situation special disadvantage relation intended transaction b cannot make judgment interest take unfair advantage superior bargaining power position entering transaction conduct unconscionable instead actual knowledge situation aware possibility situation may exist aware fact would raise possibility mind reasonable person result put matter deane j case 474 disability sufficiently evident stronger party make prima facie unfair unconscientious procure accept weaker party assent impugned transaction circumstance procured accepted 21 court subsequently resorted various formula encapsulate knowledge falling short actual knowledge nonetheless sufficient sight must lost subject required knowledge actual something le knowledge particular state affair embodies judgment disabled party ability conserve affair party dealing state affair sufficiently evident stronger party person actually know state affair wilfully ignorant sense intent knowing despite evident cfowen gutch v homan 1853 engr 883 1853 4 hlc 997at 1035 person must least aware circumstance would cause reasonable person position suspect evident state affair may exist 22 avoided resort formulaic description constructive knowledge notice duty inquire etc tend provenance deflect attention inquiry required made hence kirby j comment ingarcia v national australia bank ltd 1998 hca 48 1998 194 clr 395at 430 c onstructive notice sufficient unconscientious dealing ii section 51ab thetrade practice act23 section 51ab 1 provides corporation shall trade commerce connection supply possible supply good service person engage conduct circumstance unconscionable term unconscionable undefined however 51ab refer non exhaustive list matter court may regard determining whether corporation contravened 51ab 1 24 unlike 51aa 51ab limit unconscionable conduct conduct unconscionable within meaning unwritten law others pointed reason construing section import limitation seeaustralian competition consumer commission v simply knead franchising pty ltd 2000 fca 1365 2000 104 fcr 253at 30 37 australian competition consumer commission v c g berbatis holding pty ltd 2 2000 fca 2 2000 96 fcr 491at 24 indeed section face referring possiblesupply travel beyond unwritten law understand view reason give term ordinary possible meaning context supply possible supply good service expressed variously serious misconduct something clearly unfair unreasonable cameron v qantas airway ltd 1995 fca 1304 1994 55 fcr 147at 179 showing regard conscience irreconcilable right reasonable australian competition consumer commission v samton holding pty ltd 2002 117 fcr 301 44 see alsohurley v mcdonald australia pty ltd 1999 fca 1728 2000 atpr 41 741at 22 simply conduct unfair garry rogers motor aust pty ltd v subaru aust pty ltd 1999 fca 903 1999 atpr 41 703at 46 see generallyaustralian competition consumer commission v keshow 2005 fca 558at 91 ff 25 reason later give probably little practical difference 51aa 51ab applied conduct radio rental question proceeding 2 mr groth personal history26 outlining mr groth condition capacity personal history important emphasise case concerned mr groth objective circumstance rather concern ought perceived radio rental employee dealt dealt affair become apparent difference fundamental importance proper resolution matter anticipate conclusion notwithstanding significant disability incapacity suffers made evident radio rental justify conclusion radio rental walker store engaged unconscionable conduct purpose 51aa 51ab tp act 27 mr groth born renmark south australia 1942 contracted polio aged nine hospitalised considerable period considerable educational difficulty left school aged fourteen progressed grade five never worked first went pension put seventeen presently relevant time recipient disability support pension would appear information provided centrelink december 1996 shortly mr groth first radio rental agreement december 2002 radio rental offered settlement mr groth mr groth fortnightly pension progressed 351 80 per fortnight 524 00 per fortnight note passing dispute party benefit concession mr groth said respondent received mr groth lived mother hospitalisation 1981 died 1982 28 mid 1966 period mr groth apparently episode exhibitionism psychiatric consultation royal adelaide hospital note consultation stated iq would somewhere range 50 60 unable see seriously society view offence 29 1980s mr groth committed number behavioural offence committed occasion either hillcrest glenside psychiatric hospital medical report period described mild borderline intellectual retardation iq assessed 1981 approximately 75 80 1984 range 70 79 late 1985 three month stay hillcrest hospital diagnosed suffering schizophrenia anti psychotic medication modecate prescribed 30 prior 1988 hospitalised appears mr groth resided various relative else lived hostel 1988 made contact sister margaret vickers given evidence proceeding moved sydney year live partner mr bernie wood mr vickers weaned mr groth modecate time living sydney came believe schizophrenic 31 mr groth left sydney without telling mr vickers mr wood early 1991 returned adelaide according mr vickers terrified raised voice happened lot time early 1991 may account precipitate departure sydney offended adelaide committed hillcrest hospital may 1991 resumed medication psychotic condition march 1992 prescribed fluphenazine 32 though resided relative adelaide mr groth returned sister sydney varying period late 1993 1996 late 1996 returned adelaide live independently successfully applied south australian housing trust rental accommodation unit novar garden moved november 1996 mr groth recognised cousin leslie thomson novar garden day two took residence unit mr thomson wife cheryl lived around corner mr groth saw mr thomson almost daily living novar garden shown around area including location shop use bus 33 22 november 1996 mr groth entered first rental contract radio rental subject proceeding 34 outline detail sequence agreement entered mr groth merely note aspect personal history lived novar garden unit early june 2002 time time went sydney stay mr vickers mr wood june 2002 returned sydney live 35 interpolate radio rental evidence year mr groth exemplary credit paying history time behind payment due either direct debit rejection two occasion radio rental error affect credit rating company would also note mr groth monthly rental liability part ranged 25 35 per cent monthly income draw figure schedule annexed accc amended statement claim schedule b reproduced reason 36 time return sydney mr groth financial difficulty began emerge mr groth several credit card obtained early 1990s statement account one variously described cole cole myer target card exhibit quite significant atypical increase expense incurred mr groth december 2001 june 2002 corresponding escalation monthly balance minimum monthly amount payable period monthly balance rose 240 50 1 574 31 minimum monthly amount payable 10 00 52 00 mr groth harris scarfe account revealed like trend period monthly balance reach order target card charge incurred contributed significantly balance minimum monthly payment june 2002 48 00 previous norm 10 00 monthly 37 september 2002 mr groth difficulty insufficient fund bank account meet direct debit payment radio rental commitment target harris scarfe card mr vickers became aware mr groth radio rental walker store agreement sought legal advice mr groth behalf concerning agreement resulted exchange radio rental lawyer led ultimately settlement mr groth two company finalised 14 january 2003 b personal circumstances38 cannot seriously disputed mr groth suffers level intellectual retardation significant incapacity earlier indicated necessary reach definitive view level retardation extent incapacity concern rather ought apparent others presented conduct action suggested ability capacity defer making finding latter matter later reason 39 two expert report prepared proceeding one dr michael wood psychologist called accc professor robert goldney psychiatrist called radio rental additionally evidence given mr groth ii mr vickers mr bernie wood respective observation mr groth year iii number radio rental employee recollection dr wood40 dr wood interviewed mr groth 21 2 hour administered test ass intellectual functioning mr groth reading spelling arithmetic assessed handicap level oral comprehension significantly average level memory dr wood concluded limited intellectual ability iq 64 placed bottom 1 population difficulty understanding implication action dr wood considered mr groth past diagnosis suffering psychosis probably incorrect evidence presence psychosis time interview given mr groth marked deficit learning memory dr wood considered close impossible ever understood use video recorder complex electronic equipment possibility reading following instruction supplied appliance unlikely 41 meeting accc official lawyer prior interview mr groth dr wood expressed view broad sense basis told accc case mr groth disabled agreed cross examination never changed view 42 note interview mr groth noted mr groth fit looking man fluent clearly spoken respect described mr groth presentation part follows mr groth presented interview tall reasonably tidily clad individual known whether special effort made another person ensure dressed appropriately first obvious indication intellectual handicap first meeting speech spoke little using basic word 43 cross examination confirmed reference note first impression mr groth speaking ability fluent clearly spoken 44 examination gave following answer upon respondent place considerable reliance impression change two half hour yes way fluent sense speech easily could understand clearly certainly fluent amount information provided limited formal testing fluency described extremely limited actually generation spontaneous generation word able estimate far two half hour first impression changed 35 40 minute 45 dr wood also conceded cross examination read professor goldney report changed view whether mr groth suffered schizophrenia nonetheless said known time would changed opinion mr groth functioning mr groth demonstrating symptom time understanding mr groth modecate time keep stable noted incorrect 46 dr wood agreed person disability could course conduct life compensate tend hide disability however think mr groth history demonstrated insight behaviour professor goldney47 professor goldney examination mr groth took probably 11 2 hour test mr groth cognitive functioning tested extensively dr wood report noted mr groth conversation demonstrate obvious thought disorder able conceal symptom schizophrenic illness late interview rapport established 48 report reviewed past assessment made mr groth specific clinical psychological setting noted even accessed clinical situation wide range variation mr groth reported iq noted number general medical setting involving specialist comment made intellectual ability suggesting could make reasoned decision health give permission surgery professor goldney stated general medical setting example indicated time mr groth well able present manner immediately suggest markedly intellectually disabled considered convincing evidence mr groth schizophrenic illness along borderline intellectual retardation 49 turning dr wood report professor goldney indicated give due consideration mr groth psychotic illness probably mr groth capacity conceal symptom contrary dr wood view mr groth presented professor goldney considered presented well interview situation quite searching question asked extent limitation became apparent 50 professor goldney went note dr wood indicated mr groth spoke little using basic word commented neither assessment speech interview interpretation detailed response 268 page transcript interview mr groth accc supplied 51 professor final comment wood report dr wood considered sufficiently context assessment made previously referred fact mr groth assessed general medical setting minimal reference intellectual capacity indeed even assessed psychiatric psychological setting wide difference opinion regard intellectual capacity psychologist psychiatrist enviable position able ask question patient client question would appropriate person community ask 52 report returned importance context assessment occurred noted earlier said matter report went extending contextual argument consider situation shop assistant shop assistant assessment person shop assistant position make detailed enquiry person cognitive mental state functioning indeed expected person furthermore even concern capacity person would require considerable degree cautious judgment term pursuing matter lest offence given shopper feel discriminated 53 professor goldney mistakenly assumed dr wood assign specific iq figure mr groth 64 interpreted dr wood assessment delineate person borderline intellectual ability iq 75 80 previously expressed view mr groth degree intellectual retardation probably borderline degree ii mr groth able present relatively unremarkable manner obvious behavioural manifestation disorder able participate conversation quite engaging manner thus consider intellectual retardation particularly obvious schizophrenic illness apparent combination disorder would make liable engage activity would bring abnormal behaviour attention 54 giving evidence chief professor goldney indicated health insurance commission record disclose mr groth provided anti psychotic medication 1996 also indicated mr groth illness active time dr wood test may little effect mr groth performance may subtle cognitive disturbance nonetheless accepted cross examination symptom active schizophrenia necessarily able observed mr groth mr vickers bernie wood55 evidence mr groth mr vickers mr wood mr groth significant reading difficulty mr groth stated could read little bit read radio rental document signing able read letter received sydney radio rental 2002 bernie wood read confirmed mr wood 56 mr groth evidence paid phone electricity bill cash exemplified inability simple arithmetical calculation indicated simply gave money person paying post office would take money bill would give change said able count change hoped person dealing honest also gave evidence know dollar term much pension going radio rental never worked much left equally indicated first went radio rental think could afford 57 evidence given mr groth confirmed substance mr vickers bernie wood quite limited ability operate ordinary machine appliance complexity unable operate atm machine returned first microwave rented three day unable use could use number function vcr rented 58 finally evidence suggestible purchased wireless fan suggestion man boarding accepted choice appliance proposed radio rental sale staff obtained harris scarfe card suggestion person boarded neighbour told radio rental direct debit system arrange service thing 59 would interpolate point evidence far go provides level support dr wood conclusion mr groth reading arithmetical capacity radio rental personnel60 defer consideration evidence witness mr groth presented outline sequence dealing respectively mr groth radio rental walker stores61 following account business general practice two company drawn primarily affidavit radio rental personnel gave evidence précised respondent closing address par 67 ff description procedure followed entering rental leasing agreement intended provide context later follows embody finding fact actual practice procedure followed respect individual agreement disputed proceeding neither necessarily reflect appreciation practice procedure radio rental employee dealt mr groth rental agreement entered 62 radio rental operating south australia 50 year largest electrical retailer state also agency new south wale victoria queensland western australia northern territory offer number method customer may pay product payment cash ii agreement rent product opportunity make offer acquire product end rental term iii loan agreement various interest rate 63 company maintains call centre two department finance service separate number seen call made radio rental mr groth assume significance accc case claim made 329 call radio rental february 1998 november 2001 finance department call centre usually staffed 7 10 personnel took call customer related account call centre personnel log customer inquiry radio rental system rr system system maintained separate credit history account held customer considerable reliance placed mr groth credit history matter 64 service department call centre generally staffed 6 8 people dealt customer call relation product said faulty requiring service call information logged rr system service department period 1996 2002 radio rental 40 45 service technician servicing white brown good service facility provided product subject rental agreement free charge ii pursuant service agreement radio rental maintenance repair particular customer owned product iii cash delivery work otherwise provided customer service call instigated call service call centre service technician received job sheet evening particular job undertaken seen mr groth made regular use service technician three given evidence 65 turning rental loan process customer wished obtain product way rental loan agreement sale personnel would complete application credit otherwise known confidential basis information provided customer period 1996 1 november 1998 application credit prepared manually salesperson would take customer desk located area adjacent shop floor obtain customer information fill pre printed form required among thing customer name identification ii customer address long customer address whether customer owned property renting boarding iii customer previous address iv employment detail source income family detail relative friend credit reference v detail monthly expenditure including rent car expense living expense monthly income credit refer later particular aspect credit application form 66 completed manual credit application faxed particular retail store radio rental head office acceptance department would review application applying manual score card system score card went various criterion point allotted criterion included rating current customer craa assessment residential stability employment would note point able scored current customer good rating numerically much greater able scored criterion result application score card system customer got le 24 point application would rejected middle range point 25 34 would require investigation review application manager point 35 would result approval application process generally took 30 minute hour according one sale personnel gave evidence 1 november 1998 credit application system became automated thereafter customer detail entered directly screen application assessed electronically transmitted credit approval computer system applied automated score card application produced automatic approval review recommendation decline advice depending point score attributed radio rental approved another application within previous six month system would automatically flag new application review case assessed manually 67 application credit approved acceptance department sale personnel would prepare rental loan contract would interpolate standard term condition lengthy complex would invite close scrutiny ordinary purchaser said sale staff gave evidence matter standard practice would go term condition either rental loan agreement every provision would highlight term agreement including cost product b term rental loan agreement c monthly repayment due date payment obligation e residual value product end rental term f ability make offer purchase product end rental term g ability upgrade product returning existing product qualifying period h equipment would installed radio rental personnel additional charge service facility whereby radio rental service personnel would attend effect repair product rental term additional charge j warranty applicable product 68 walker store earlier noted retailer business leasing electrical good traded business name rent home radio rental agent south australia november 2001 mr groth dealing radio rental walker store 69 scope complexity issue raised necessary break mr groth dealing radio rental following discrete category 1 dealing sale personnel 2 credit application 3 service provision radio rental 4 telephone call radio rental 70 dealing individually number background matter need refer first first four rental agreement entered radio rental rundle mall store balance elizabeth store get elizabeth store mr groth take bus adelaide train elizabeth 25 kilometre north east city evidence first trip elizabeth cousin came 71 secondly seen mr groth returned number appliance shortly prior expiry rental period rented new like appliance stead facility described radio rental upgrading provided rental agreement use uncommon according tony karutz radio rental salesman 72 thirdly making reference radio rental employee perceived mr groth light presentation voice conduct point foreshadow view presented witness later discus matter greater length context considering evidence generally presented mr groth witness box day somewhat slow speech fluent clear said language educated person neither childlike matter displayed considerable memory gave evidence limitation consider obviously presented mentally retarded virtue appearance speech manner communication 73 fourthly accc annexed five schedule amended statement claim deal variously particular mr groth agreement respondent schedule particular cumulative liability respondent entry agreement schedule b particular financial hardship based monthly income monthly expense schedule c particular amount actually paid six particular agreement schedule table actual payment made mr groth respondent month table financial hardship resulting actual payment schedule e though schedule assistance given number agreement question proceeding period time considered reproduced reason considerable length important respect self explanatory reason used generalisation drawn 74 aspect schedule contentious particularly schedule c provide underpinning accc case radio rental insofar relies upon alleged financial hardship suffered mr groth consequence ongoing liability radio rental figure used schedule drawn documentary evidence insofar relate mr groth pension rent actual liability actual payment made radio rental time time purpose schedule e particular considered schedule c demonstrate mr groth regularly paid radio rental given month actual rental liability month agreements75 referring evidence number agreement individually refer history nature rental loan agreement service agreement insofar give rise dispute dealt separately later reason see ancillary claim although reference made following based exhibit 9 précise history set respondent closing address transaction history76 22 november 1996 mr groth entered rental agreement fisher paykel refrigerator fisher paykel washing machine first agreement 3 november 1998 mr groth returned refrigerator entitled rental agreement additional cost replaced maytag refrigerator similar capacity seventh agreement around 4 april 2002 mr groth returned refrigerator replaced fisher paykel refrigerator similar capacity thirty third agreement agreement terminated 25 november 2002 refrigerator returned radio rental context settlement mr groth paid instalment due agreement either time advance 14 april 1999 mr groth offered purchase fisher paykel washing machine entitled agreement radio rental accepted offer 13 september 2001 mr groth entered rental agreement new fisher paykel washing machine twenty sixth agreement mr groth trade previous washing machine new washing machine new agreement terminated 25 november 2002 washing machine returned context settlement mr groth paid instalment due agreement either time advance 77 5 december 1996 mr groth entered rental agreement phillips colour television second agreement 17 march 1999 mr groth offered purchase television radio rental group accepted offer 78 19 february 1997 mr groth entered rental agreement hi fi stereo video cassette recorder vcr third agreement 14 october 1999 mr groth offered purchase vcr radio rental accepted offer mr groth also entered rental agreement sony hi fi stereo video cassette recorder 24 april 2001 twenty fourth agreement agreement also terminated 25 november 2002 vcr returned radio rental group mr groth paid instalment due agreement either time advance 79 28 may 1997 mr groth entered rental agreement microwave oven fourth agreement mr groth returned microwave three day later 31 may 1997 advising unhappy function mr groth paid three month rental payment 72 fee terminating agreement end minimum rental term 11 february 1998 mr groth entered rental agreement microwave oven fifth agreement 6 october 1999 mr groth offered purchase microwave offer accepted 28 october 1999 mr groth entered rental agreement another microwave fifteenth agreement 2 november 2000 mr groth offered purchase microwave radio rental accepted offer 80 1 september 1998 mr groth entered loan agreement vax barrel vacuum cleaner sixth agreement mr groth paid loan full 25 february 2000 mr groth paid instalment due loan either time advance 81 23 february 1999 mr groth entered new rental agreement philip 48 51cm mono colour television cabinet eighth agreement 3 november 2000 mr groth traded exchanged television entitled rental agreement replaced philip 62 63cm colour television twentieth agreement time mr groth offered purchase cabinet radio rental accepted offer agreement terminated 25 november 2002 television returned context settlement claim mr groth radio rental group mr groth also entered rental agreement philip 62 63cm colour stereo television 7 april 2000 sixteenth agreement agreement also terminated 25 november 2002 television returned mr groth paid instalment due agreement either time advance save occasion late 2002 82 14 april 1999 mr groth entered rental agreement fisher paykel clothes dryer tenth agreement 18 september 2000 mr groth offered purchase dryer radio rental accepted offer 83 28 april 1999 mr groth entered rental agreement sony hi fi stereo shelf system twelfth agreement 23 march 2001 mr groth returned stereo replaced sony mini hi fi system twenty third agreement agreement terminated 25 november 2002 stereo returned context settlement radio rental mr groth paid instalment due agreement either time advance 84 2 august 2001 mr groth entered loan agreement dimplex heater twenty fifth agreement mr groth made frequent repayment toward loan however account fell arrears mid 2002 unlike account mr groth fell behind payment account given conduct account apparent loan agreement subsequently terminated context settlement claim made mr groth radio rental mr groth returned heater 85 22 november 2001 mr groth entered rental agreement sony mavica digital still camera thirty first agreement agreement terminated 25 november 2002 camera returned context settlement mr groth paid instalment sue inrent agreement either time advance 86 14 february 2002 mr groth entered rental agreement pioneer dvd vcd cd player thirty second agreement agreement terminated 25 november 2002 dvd player returned context settlement mr groth paid instalment due agreement either time advance 87 apart fifteen rental two loan agreement mr groth entered nineteen annual service agreement radio rental figure includes number case sequence successive agreement renewal respect appliance agreement required mr groth make monthly payment 8 00 10 00 respect good previously rented subsequently purchased 88 exemplify cumulative effect sequence rental agreement mr groth relationship respondent 28 october 1999 date 15thagreement entered least nine agreement respondent towards end relevant period 14 february 2002 november 2002 mr groth 13 current agreement respondent pursuant required make monthly payment 89 final matter refer relates mr groth payment respondent various agreement generally made fortnightly payment save april 2001 rental liability directly debited bank account apparent transaction history mr groth regularly paid occasion significantly required pay many various agreement consequence case rental agreement seems accelerate payment time option offering pay residual amount purchase appliance question number appliance bought case service agreement entered purchasing appliance effect overpayment trigger payment full notice radio rental system turn led either raising new service agreement credit balance paid agreement offer made enter new annual service contract payment received raising agreement b specific transactions90 way preface follows indicate six radio rental service personnel gave evidence three recollection mr groth could say dealing would followed standard practice explaining agreement three varying recollection explicit tony karutz david haywood involved respectively last two rental agreement entered mr groth mr karutz salesperson nine agreement though evidence recall serving four five occasion 91 extent witness rely simply upon practice explaining agreement filling credit application treat evidence circumspection given several acknowledged mr groth regular customer least time credit application automated screen access purported previous detail financial otherwise mr groth view real likelihood occasion explanation given term matter inquiry made relation credit application relaxed may case person without rental history company 92 also indicate mr groth demonstrated considerable memory dealing radio rental consider aspect evidence unreliable particularly relation explanation given rental agreement equally place little weight alleged lack discussion existing liability radio rental level time agreement whether could afford agreement entering given function sale personnel saw performing give credit approval consider context sale floor one discussion could expected course 93 distinctly evidence accept elizabeth lower demographic area use mr haywood word lot customer elizabeth store pension quote mr haywood unusual people deck whole house appliance radio rental spend 300 per month also note point made salesperson called mr groth used pension card regularly radio rental providing identification card express term identify disability pension although appears annotation dsp reverse side 94 finally considering evidence radio rental personnel respondent emphasise none recollection mr groth challenged cross examination evidence know intellectually disabled unable understand right obligation put salesperson took unfair advantage 95 specific transaction considered drawn primarily exclusively emphasised accc closing address par 55 70 first agreement first refrigerator washing machine96 mr groth evidence moved novar garden unit needed fridge washing machine went radio rental told salesperson identified barry barry silverman took washing machine told one real easy operate mr silverman recollection dealing mr groth mr groth evidence read document signed could recall barry explained term condition ii second agreement first television97 mr groth evidence chief choose first tv selected already packed ready delivered came store response phone call radio rental said previously told larry larry fanto looking tv time really want one yet took hey ready cross examination indicated rang radio rental concerning television got phone call larry radio rental looking television might spoken larry though could remember mr groth also indicated trouble television set flat hey showed operate later kept breaking time 98 mr fanto also dealt mr groth third fourth agreement recollection mr groth cross examined credit application made mr groth indicated financial information expense etc supplied customer indicated practice query unrealistically low amount living expense second agreement 160 per month equally said figure given customer existing commitment radio rental wrong figure given job check said examination checking role sale staff acceptance department checking iii third agreement first vcr99 need said dealing mr groth remembered salesman larry evidence could work video function thing complicated could even set clock mr groth selected vcr iv fourth agreement first microwave100 microwave returned mr groth cousin three day purchased mr groth evidence could operate previously indicated radio rental wanted return happy function said evidence aware returned end minimum rental period would pay three month rental radio rental credit history agreement noted mr groth reason wanting return microwave radio rental employee offered show use properly customer wanted return quite happy pay three month rental mr groth confirmed accuracy recorded 101 mr groth rented second le complex microwave ordinary microwave february 1998 v sixth agreement loan agreement vacuum cleaner102 salesperson dealt mr groth agreement identified evidence mr groth evidence entered explanation loan agreement rental agreement understood loan loan finished give back examination accepted would infer later date rang radio rental told loan agreement vi eighth agreement second television103 mr neville spark salesperson dealt mr groth agreement recall dealing mr groth cross examined credit application agreement similarity seventh agreement said applicant give rise inference eighth adaptation seventh existing radio rental liability eighth said understated 57 per month 104 mr spark also cross examined figure included living expense credit application 120 00 per month 27 69 week said query low figure could go told application approval system vii tenth agreement dryer105 need noted rental mr groth chose clothes dryer reason gave renting novar garden one clothesline shared eight people viii twelfth agreement first hi fi106 first agreement tony karutz salesperson could recall selling hi fi mr groth evidence cannot recall first came remember mr groth sight recall dealing four five occasion including present nonetheless appropriate point outline mr karutz impression mr groth recorded affidavit 25 mr groth always pleasant polite mr groth presentation change period dealing initial dealing mr groth noted nothing ordinary recollection dealing mr groth several time noted speaking found little slow mean appeared intellectually disabled speech little slow recall mr groth always seemed know product wanted came store 107 indicated mr groth asked name occasion phoned advance coming store occasion knew one occasion brand wanted fisher paykel questioned occasion product looking example worked mr karutz swore 31 suspect know mr groth intellectually disabled fact pensioner cause concern experience unusual deal pensioner regularly particularly elizabeth store 32 never reason doubt mr groth knew buying cannot recall mr groth ever suggesting anyone might need help work thing suggesting necessary 33 mr groth dealing radio rental quite year remember account good shape recall account never arrears reason think would trouble making payment observation mr groth excellent customer seemed problem paying paying time 34 obtain relevant information customer judge acceptable credit level totally credit acceptance department determine ever look mr groth monthly credit radio rental think oh gee high believe got much never reason dealing radio rental number year reference account history always paid time never reason doubt 108 returning hi fi agreement mr groth evidence indicated salesperson wanted hi fi one also played record ix sixteenth agreement third television109 mr groth said reason bought larger television tv played eye call real good thought got bigger screen could see better said well agreement number others mention made money already paying radio rental x twentieth agreement fourth television110 tony karutz salesperson agreement recollection entered six month sixteenth agreement third television reason mr groth gave renting television bedroom could watch bed agreement contentious reason two separate credit application filled first exhibit thirty six month term monthly repayment rate 60 mr groth monthly income incorrectly stated 1 733 33 double correct amount living expense stated 433 33 figure appear credit application twenty third agreement mr karutz salesperson 111 second credit application twentieth agreement later approved 60 month original application could located copy application put evidence printout made mr groth settlement radio rental show incorrect figure income living expense figure 316 default figure time printout 112 accc sought make much two application apparent inconsistency radio rental accepts inaccuracy income figure also question accuracy living expense 443 33 exhibit application notable figure departs significantly living expense figure 120 00 characteristically inserted mr groth previous application twenty third agreement next rental agreement figure income living expense appear transposed living expense revert appear default figure commencing 300 00 evidence m goode radio rental employee figure 433 33 would calculation default system time application done however evidence system introduced september 2001 twentieth agreement entered 3 november 2000 xi twenty fourth agreement second vcr113 salesperson agreement george haffner remembered dealing mr groth previously spoken phone buying vcr mr haffner evidence mr groth called knew wanted asked question seemed quite good knowledge product mr groth came store asked mr haffner affidavit mr haffner state recall mr groth neatly dressed recall physical disability anything unusual stood appeared normal nothing speech way spoke stood mr haffner also stated recalled applying usual practice relation credit application rental agreement filling credit application would question income living expense provided customer would explain certain thing rental agreement would go le detail existing customer generally good understanding rental system work said mr groth told existing radio rental customer said word effect understood told 114 cross examination indicated could remember detail went mr groth discus whether mr groth could afford enter agreement mr groth gave evidence effect mr haffner put hat acceptance department probably come xii twenty fifth agreement heater115 mr karutz salesman could recall detail transaction mr groth evidence told heater could rented bought mr karutz confirmed case said explained would paying interest much would paying loan agreement reason gave salesperson could remember mr karutz wanting heater small one home good saw bigger one took mr groth made use heater found dear power xiii twenty sixth agreement second washing machine116 salesman mr karutz recalled dealing evidence mr groth called coming store said wanted new fisher paykel washer confirming phone call mr groth indicated ask fisher paykel machine easier operate indicate said wanted machine would hold everything instead separate wash time rented biggest machine xiv thirty first agreement digital camera117 though mr karutz salesman agreement mr groth said know person talking store said went store looking camera told salesperson like camera told could rent camera well salesperson showed digital camera said take photo put computer think quite sure think might meant mr groth said evidence chief able use digital camera probably want one explained inrent agreement camera would pay rent day agreement later date never used camera know xv thirty second agreement dvd vcd cd118 salesman agreement february 2002 second last rental agreement david haywood evidence received telephone call mr groth inquiring dvd brand recommended gave information particular model mr groth came store asked mr haywood explained general feature dvd player showed several dvd mr groth go feature recommended model mentioned phone explained work mr groth confused understood explaining mr groth took machine mr groth affidavit state 24 recall mr groth used department social security pension card identification photocopied front back card fact pension concern alarm lot customer elizabeth store pension 25 mr groth scruffy badly presented neatly casually dressed nothing stood fairly normal manner man late 50 early 60 recall displaying physical disability limp 26 notice anything unusual way mr groth spoke particularly context customer elizabeth 31 observation mr groth seemed understand saying product obligation arose rental contract 119 mr groth credit application stated brought screen would contained information recent agreement updated mr groth living expense figure 303 00 generated rr system monthly surplus figure 173 00 raise alarm bell consider time said affidavit role credit approval process ii credit applications120 indicate accc relies upon credit application two purpose first evidence mr groth presented relevant salesman day particular application completed secondly evidence respondent record knew ought known financial hardship mr groth 121 way background appropriate make reference mr groth actual finance period dealing radio rental already indicated december 1996 december 2002 mr groth fortnightly pension progressed 351 80 per fortnight 524 00 per fortnight though dispute whether also receipt rent assistance period seems clear term thesocial security act 1991 cth s 117 1064 1 1064 a1 1064 d1 13 government rent entitled receive benefit evidence case mr groth would annually request paid advance payment pension 500 00 would repay course ensuing 12 month 122 evidence would seem constitute totality mr groth recurrent monetary receipt period present relevance pensioner also entitled number concession included least pharmaceutical benefit assistance electricity telephone concession according calculation made accc telstra agl invoice mr groth monthly average phone electricity payment 32 00 monthly rental payment south australian housing trust saht novar garden unit progressed 118 73 late november 1996 153 83 late september 2002 rental payment deducted centrelink mr groth pension paid directly saht balance pension paid bank account already indicated monthly rental liability respondent part range 25 35 per cent monthly income time time 123 turning credit application referred earlier information required provided credit application period credit application filled manually application form top box headed mthly payment monthly rental appliance question written near foot form appeared following box monthly expenditureliving expense monthly net income mortgage rent existing rr credit monthly expenditure car expense credit monthly surplus application process computerised screen form provided monthly payment stated near head application towards bottom following appeared financial detailsmortgage rent credit repayment monthly income joint single vehicle expense existing rr credit monthly expenditure living expense grocery proposed rr credit monthly surplus 124 would note passing accc case place importance amount inserted living expense mr groth pre post computerised credit application evidence given salesman provenance figure inconsistent consider particular moment given part independent recall filling application evidence suggest case sum inserted appears carried forward previous credit application made mr groth others appears computer generated 125 accc relies particular sum inserted living expense seven application second agreement 160 per month seventh eighth tenth twelfth fifteenth sixteenth 120 per month 126 accc also point error calculation made various 10 application concerning item existing rr credit intended record mr groth existing monthly credit liability radio rental time application also point 5 application contained incorrect information mr groth income error two occasion showing monthly income twice mr groth actual income 127 intend reiterate evidence salesman concerning filling various application indicate accept evidence function determine acceptable credit level customer 128 m jodie goode finance product manager radio rental gave evidence credit application assessment procedure period relevant proceeding affidavit radio rental documentation tendered accc apparent least may 1997 credit policy document applied assessment credit application policy contained reference uniform consumer credit code 1996 substance stated 1997 policy document accordance requirement consumer credit code 1996 salesperson required ensure debtor fully understands nature implication transaction consumer credit code 1996 also requires reasonable inquiry made debtor time entering contract debtor able maintain payment accordance term contract without causing substantial hardship 129 note passing mr haffner mr karutz indicated cross examination aware requirement mr karutz accepted part obligation salesperson 130 earlier described procedure followed scorecard system employed assessing credit application occasion mr groth made credit application granted m goode reviewed record mr groth credit payment history period dealing radio rental expressed view history exemplary also gave evidence scored mr groth application manual automated scorecard period prior giving evidence case approval score exceeded minimum score automatic approval m goode accepted actual figure available twentieth agreement later shown exhibit version credit application made agreement accepted one would accepted automatically would reached minimum monthly surplus figure radio rental set time time erroneous monthly income figure halved reflect mr groth actual income 131 radio rental policy least mid 1997 evidence one factor scorecard system application minimum monthly surplus defined scorecard actual surplus calculated figure provided customer monthly income monthly expenditure customer insufficient surplus application rejected 132 minimum monthly surplus figure one settled upon radio rental time time explanation given basis calculation september 2001 possibility removed person able reach minimum monthly surplus deflating living expense figure according m goode company introduced minimum default figure living expense time 133 final matter would note accc sought cross examine m goode matter going whether radio rental breached credit policy matter pleaded part case understood respondent defended radio rental credit policy approval process attacked pleading evidence presented mind permit raising matter iii service provision mr groth134 clear documentary evidence year dealing radio rental mr groth made many call service appliance equally clear evidence fault reported mr groth found main user installation problem rather significant fault appliance 135 three radio rental service technician serviced good mr groth unit gave evidence dealing jeffrey smith attended novar garden thirteen service call indicated considered mr groth always neatly dressed kept unit tidy clean always polite appreciated effort made little slow speech anything ordinary able explain problem experiencing appeared understand explanation given mr smith considered call made ordinary similar made lot people unaware dealing observation mr groth intellectual disability alleged accc could read understand agreement make worthwhile judgment interest unable afford basic necessity life 136 mr john richards gave evidence like effect went novar garden six occasion deal serious problem appliance mr richards indicated nature service call made apparent mr groth difficulty setting clock timer function tuning channel definitely ordinary call type common experience typical called minor problem clock timer issue mr richards rejected suggestion put cross examination mr groth seemed childlike considered mr groth sincere straight point fairly precise problem 137 third technician david hardwick specific recollection mr groth though recalled going unit one occasion unnecessary comment affidavit little assistance 138 anticipate later finding accept evidence service technician unaware mr groth disability effect mr smith mr richards gave reasonably detailed account impression mr groth challenged accept said iv telephone call radio rentals139 referred earlier radio rental call centre two department finance service accc tendered telstra record itemising local call made mr groth home telephone number period 26 november 1996 28 november 2001 period almost 330 call made various radio rental telephone number 10 time accc prepared monthly schedule call reveals 12 month 15 call made 140 accc contention constituted extraordinary number call must placed radio rental notice mr groth person unable operate good renting unable manage money respondent correctly point call directed primarily five different radio rental number elizabeth store 54 service repair 53 head office 109 general number 67 account delivery 38 number call duration le two minute 141 joanne karutz service department linda lawrence finance department gave evidence could recall spoken mr groth telephone mr karutz gave evidence everybody service department asked recalled speaking mr groth mr lawrence gave similar evidence relation finance department 142 mr karutz recollection related call regarding refrigerator renting affidavit detailed course call return call made detail unnecessary reproduced described polite appeared understand explained recall mr groth difficulty speech anything unusual problem customer talked call centre causing problem know matter mr groth alleged accc 143 service call record radio rental show 73 fault reported mr groth period december 1996 may 2002 consistent evidence technician great majority user problem 144 mr lawrence dealt account related call described usual type inquiry made related whether customer could return particular item option upgrading appliance stood payment log conversation customer recorded customer account history maintained radio rental computer system mr groth credit history exhibited affidavit revealed spoke 10 occasion 17 june 1999 22 november 2001 three related offer purchase amount appliance one status account three payment arrangement one delivery inquiry one payment date one direct debit inquiry 145 mr groth appeared understand explanation mr lawrence gave question given advice call everyday call unusual form impression intellectually handicapped spoke slowly although noted voice drony aware number call mr groth made radio rental 146 credit history annexed mr lawrence affidavit discloses mr groth called finance department many occasion inquire state account also reveal almost invariably advance 147 later refer little detail evidence loretta moretta considering ancillary claim m moretta time present relevance variously general manager service department call centre manager present purpose would merely note put train inquiry led identification service technician staff service department finance department could recall dealing mr groth supplied name lawyer played part selection gave evidence witness issue adverse inferences148 side complained failure call particular witness accc complaint various first contends service technician wayne avion still work radio rental could called without explanation according radio rental record mr avion appears made service call mr groth 10 occasion secondly accc challenge failure call four salesperson dealt mr groth one occasion b call centre operator answered mr groth numerous call c person responsible processing overseeing procedure approval mr groth credit application 149 accc seek use failure found ajones v dunkelinference evidence would helped respondent case said take account deciding whether accept particular evidence given relates matter including way mr groth presented radio rental store flat phone dealt salesman service technician call centre operator 150 consider case every person dealing mr groth six year period required called given nature respondent business function performed various class person dealt mr groth application likelihood many reliable memory significant otherwise mr groth great demonstrated evidence employee fact given evidence 151 prepared accept reason various person called would positively advance respondent case infer failure call protective case case absence evidence witness normally respondent would expected called hih insurance ltd prov liq hih casualty general insurance ltd prov liq 2002 nswsc 171 2002 41 acsr 72at 448 inference would draw failure call given nature various function performed together elapse time person question would able contribute evidence useful resolution matter issue cfcubillo v commonwealth 2 2000 fca 1084 2000 103 fcr 1at 119 152 radio rental complains accc failure call leslie thomson wife cheryl lived around corner mr groth novar garden saw mr groth regularly mr thomson case almost daily unprepared draw adverse inference failure consider quite unlikely evidence would enhanced actually given accc case equally consider regard issue case lay opinion evidence may given would unlikely particular value resolving issue consideration153 put composite form accc case radio rental walker store knew ought known recklessly indifferent circumstance mr groth presented record suffered significant serious disadvantage unlikely best interest enter various agreement radio rental walker store incurring monthly liability resulted financial hardship 154 generally contended presented childlike radio rental sale personnel ought aware dr wood assessment mr groth said accepted accurate apart circumstance entry rental loan service agreement aspect mr groth dealing radio rental relation service call minor user problem phone call generally overpayment monthly liability radio rental record dealing especially credit history service record ordinary ought alerted radio rental inability conserve interest financial hardship suffered last reliance placed various calculation relating financial circumstance contained schedule c e applicant pleading 155 respondent case contrast mr groth presentation verbal skill revealed court medical witness disability apparent neither ought known radio rental employee reliance placed upon professor goldney opinion importance context making judgment person capacity said evidence term agreement inherently unfair burdensome radio rental staff took unconscientious advantage mr groth case financial hardship supported evidence contention allegedly unrealistic information credit application inadequate monthly surplus foundation evidence finding unconscionable conduct reason approval credit based information supplied mr groth open pleading challenge radio rental credit application approval procedure inappropriate even accepting figure schedule c mr groth surplus fund available expenditure fell financial difficulty early 2002 began spend significant sum credit card 156 view follows satisfied mr groth suffers schizophrenia intellectual retardation least borderline similarly satisfied reading spelling mathematical ability quite limited capacity operate ordinary machine appliance nonetheless fairly limited said unqualifiedly accept dr wood assessment involves judgment mr groth oral expression comprehension memory capacity compensate disability inconsistent appreciation court appearance revealed aspect evidence 157 unnecessary express definitive view precise extent mr groth disability issue whether capacity contract rather whether contracted would known ought known specially disadvantaged place focus upon ought evident dealing disability incapacity 158 necessarily observed mr groth closely gave evidence earlier indicated speech somewhat slow diction slightly distinctive fluent clear said language educated person neither childlike dress neat manner courteous matter displayed considerable memory gave evidence limitation consider obviously immediately presented mentally retarded virtue appearance speech manner communication thus agree professor goldney appreciation mr groth could present speech clearly disagree dr wood view language use presentation memory capacity comprehend concept accc characterisation mr groth performance 159 accept professor goldney opinion mr groth history general medical setting indicated time well able present manner immediately suggest markedly intellectually disabled consider clearly occurred dealing radio rental personnel indicate equally accept professor goldney opinion assessment mr groth capacity likely affected context assessment made consider disability evident invite suspicion course whatever setting 160 turning mr groth dealing radio rental personnel significant none salesperson called memory knew suspected intellectually disabled evidence transpired agreement made extent evidence particularly reliable often somewhat contradictory memory unreliable may fact reconstructed assume character reality said accept evidence salesperson perception mr groth said consistent view arrived close observation add attention paid matter accc cross examination salesperson type encounter mr groth sale floor would necessarily invite suspicion intellectual capacity occasion protracted time involved obtaining credit approval various encounter appear routine perfunctory setting would naturally invite critical appraisal person mr groth 161 number occasion mr groth explained salesperson reason wanting particular appliance others specified make appliance wanted several occasion made prior phone contact concerning appliance saw salesperson spoke conduct occasion consistent projection dealt ability determine make choice interest even fact case 162 equally mr groth politeness evident attentiveness together probably capable conveying comprehension explanation given contrary may well case 163 accc placed considerable emphasis upon mr groth inability read understand term condition various agreement concede particular par 95 3 amended statement claim understood would regard central characteristic agreement entered though radio rental salesperson gave evidence usual practice explaining agreement customer evidence necessitated lack memory actually mr groth seems likely mr groth regular rental customer explanation given general opposed specific distinctive term various agreement entered attenuated assumed though incorrect understanding attributed 164 manner credit application filled figure contained generated considered light already said mr groth otherwise given salesperson reason suspect disability various credit application limit inquiry disability knowledge intrinsic accc composite claim 165 way preface answering make following comment satisfied living expense monthly income figure appeared credit application ultimately based upon information supplied mr groth save default figure except twentieth twenty third agreement say ultimately reason consider likely manual application period living expense figure often carried forward one agreement next prepared infer radio rental salesperson routinely put figure credit application without mr groth involvement process may well case carry forward occurred mr groth knowledge time asked occasion whether expense changed consider like process probably explains carry forward default figure 166 clear evidence salesperson called regarded amanuensis filling application form others responsible determining whether application made approved consider gatekeeper approval process unsurprising seemed scrutinised critically figure credit application add consider cross examination issue living expense monthly surplus assistance present purpose particular setting particular basis cross examination effect asked venture opinion matter see relevant time real function although inconsistent evidence querying low living expense figure 167 credit application form capable generating suspicion anyone radio rental could credit assessment personnel deal later 168 final matter concerning application need presently refer concern twentieth twenty third agreement consider two credit application made twentieth agreement probative value proceeding monthly income figure given clearly inaccurate sufficient uncertainty accuracy living expense figure able conclude accurate default figure deviate significantly preceded earlier agreement could along monthly income figure ascribable human error 169 conclude relation radio rental sale personnel gave evidence mr groth disability incapacity sufficiently evident fix radio rental knowledge disability incapacity 170 foreshadowed dealing evidence reached like conclusion relation service technician gave evidence additional comment would make mr smith mr richards emphasised call mr groth unit problem ordinary compared radio rental customer inability set clock timer electrical appliance necessarily suggestive mental incapacity 171 likewise accept evidence two witness call centre gave evidence mr karutz mr lawrence reason suspect suffered disability proceeding concerned 172 basis finding radio rental personnel actually dealt mr groth knew ought known position special disadvantage entering various agreement 173 one turn case pleaded radio rental walker store would consequence compelled reject one foundation accc case company entered agreement mr groth knew ought known mr groth presentation verbal skill person intellectual disability could read agreement could understand term condition agreement unable understand right etc agreement unable make worthwhile judgment whether entering agreement best interest see amended statement claim par 95 1 95 5 97 1 97 5 evidence simply support finding mr groth presentation verbal skill made matter sufficiently evident use deane j shorthand description inamadio two company 174 unsurprising respondent noted final address accc case cross examination became focused radio rental record concerning mr groth alleged financial hardship suffered emphatic earlier noted accc sought oral submission propound stand alone case respondent took advantage mr groth knew financial circumstance particular inadequate monthly surplus 175 use accc seek make radio rental record somewhat expansive amended statement claim would mandate may telephone record reveal 329 call radio rental various phone number february 1998 november 2001 submitted extraordinary number call must placed radio rental notice mr groth unable operate good renting unable manage money accc contends service department record record 73 fault reported mr groth period december 1996 may 2002 took reveal former incapacity credit history insofar disclose mr groth frequent inquiry concerning repaying account regular overpayment disclose latter 176 variety difficulty contention various communication made mr groth call centre entered mr groth credit service history made individual radio rental employee submission suggest individual operator ought knowledge accc ascribes radio rental although operator least knowledge entered time entry rather seems based aggregation known individual call centre operator radio rental ascribed knowledge mr groth aggregated information might reveal 177 support somewhat startling proposition accc relies upon observation made joint judgment high court inkrakowski v eurolynx property ltd 1995 183 clr 563at 582 583 bright j said inbrambles holding ltd v carey 1976 15 sasr 270at 279 always belief opinion state mind attributed company necessary specify person person closely relevantly connected company state mind person person treated identified company state mind treated state mind company process often necessary case company charged offence conspiracy defraud division function among officer corporation responsible different aspect one transaction relieve corporation responsibility determined reference knowledge possessed 178 would note like submission victorian court appeal inmacquarie bank ltd v sixty fourth throne pty ltd 1998 3 vr 133in reliance passage aggregate certain fact known various company servant agent give rise factual totality dishonest intent held none individual might inferred submission rejected word tadgell ja 145 see also ashley aja 160 161 neither passage inkrakowskinor principle justifies simple aggregation knowledge number person individually unaware fraud fact ought disclose create notional person dishonest intent high court inkrakowskiwas purporting passage relied lay principle authorise consideration knowledge circumstance relevant person including may properly inferred order ascertain mind corporation 179 view situation different aggregated knowledge attributed company prerequisite finding engaged unconscionable conduct equitable fraud present submission cannot properly characterised one individual operator recorded entry etc involved different aspect one transaction record embody unrelated event transaction communication state pleading could suggestion record sought aggregated contrivedly artificially kept disaggregated form would add evidence either duty radio rental employee monitor customer record discern suspicious ordinary occurrence record employee actually interrogated record circumstance would alerted reasonable person suspicious ordinary occurrence record interrogated circumstance state mind attributed radio rental different le innocent personnel made entry record 180 mr groth pattern overpayment may well invited suspicion context matter relied upon composite claim matter established cannot sustain burden accc imposes practice result early payment rental agreement accelerated opportunity purchase appliance question neutral character able said reasonably made mr groth inability conserve interest sufficiently evident especially context sustainedly met obligation respondent overpayment service agreement appears later seen led raising seven agreement without mr groth consent dealt separately record said show pattern relied upon establish radio rental imputed knowledge pattern possible consequence light credit application revealed reason given relation aggregation information 181 accc submission accepted full extent put would potentially alarming consequence large multi function corporation could also raise potentially rather significant privacy issue 182 rejecting submission circumstance matter suggesting circumstance disaggregated information aggregated express concluded view matter incline others view separate information held officer agent corporation aggregated information held another least first person duty opportunity communicate chisum service pty ltd 1982 1 aclc 292at 298 see alsomacquarie bank ltd 161 2 183 final comment would make context vary widely question attribution knowledge corporation arise virtue knowledge possessed one officer agent cf example beach petroleum n l v johnson 1993 fca 283 1993 115 alr 411at 566 dunlop v woollahra municipal council 1975 2 nswlr 447at 484 485 elliot v nanda 2001 fca 418 2000 111 fcr 240 confine circumstance sought aggregation knowledge alter character knowledge attributed employer corporation justification aggregation e g participation several employee transaction made 184 two distinct matter concerning radio rental record requires mention first earlier referred instance inconsistency error number credit application submitted approval accc pleaded radio rental knew ought known record credit application submitted employee contained information incorrect unrealistic inadequate insofar claim relates simply failure detect error calculation respect mr groth actual monthly rental liability misstatement mr groth monthly income submission without substance evidence discloses instance human error suggestion credit application approval procedure inadequate inappropriate circumstance evidence instance credit approval personnel put inquiry term credit application evidence suggest particular employee duty check application radio rental record simply justification advanced submission respective body information able aggregated disclose error secondly risk undue repetition credit history revealing overpayment mr groth cannot properly aggregated individual credit application impute knowledge radio rental actual circumstance different worse position stated application 185 extent accc complaint credit application revealed unrealistic inadequate living expense monthly surplus time time essence one knowledge financial hardship 186 earlier indicated accc end oral submission sought put case either two base first composite case focussed primarily upon radio rental knew ought known mr groth presentation verbal skill focussed well financial hardship mr groth experienced level monthly rental liability time time revealed credit application second stand alone case taking advantage mr groth knew financial circumstance 187 respondent objected properly view accc seeking make stand alone case pleaded already referred scorecard system grant credit approval used radio rental fact approval given mr groth rental loan application stand alone case best understand necessarily involves attack radio rental credit application approval procedure yet led evidence end nothing suggest procedure inappropriate uncommercial inconsistent ordinary credit approval practice period 1996 2002 neither given manner case pleaded opened respondent given appropriate notice stand alone case corresponding opportunity justify credit approval procedure setting example minimum monthly surplus default figure living expense 188 case inflicting financial hardship alone quite different one raising quite different inquiry one financial hardship relied upon demonstrate advantage taking cause disadvantaged position person suffering hardship separately identified relied upon establish particular person known ought known unable conserve interest 189 stand alone case seemingly relied upon prove unconscionable conduct allegedly disadvantaged person overcommits question individual autonomy extent one responsibility one neighbour loom large issue seriously agitated accc late discovered case 190 case properly pleaded pursued would different proceeding entertained foreshadowed far late unfair accc allowed run 191 earlier finding relation radio rental knew ought known mr groth presentation verbal skill record revealed credit application leaf accc practical purpose relying upon allegation known financial hardship circumstance rejected balance composite case view doom case pleaded failure event 192 nonetheless make following observation financial hardship context composite case contrary finding referred accc established radio rental knew ought known mr groth inability conserve interest hardship part case would given colour significance factual setting radio rental otherwise knew ought known mr groth stripped setting knowledge necessarily wear somewhat different complexion 193 considered radio rental standpoint mr groth becomes customer whose credit application approval process reveal prepared submit significant percentage income time time renting purchasing appliance radio rental five year maintained exemplary credit respect application satisfied radio rental minimum monthly surplus requirement even accepting figure given living expense could said occasion unrealistically low least advent default figure hardship case necessarily demonstrate person mr groth position circumstance need would generally unable afford basic necessity living sum represented time time aggregate living expense monthly surplus disclosed credit application proof matter evidence judicial notice would note passing schedule relied upon accc demonstrate financial hardship based mr groth monthly liability schedule c aggregate figure highest 507 20 lowest 350 54 average 414 68 194 excluded discounting aggregate sum mr groth regularly paid radio rental actual liability done earlier indicated consider information simply aggregated information contained individual credit application fix radio rental knowledge mr groth actual financial circumstance might worse revealed credit application processing application 195 evidence mr groth actually experienced financial hardship monthly rental loan liability respondent quite unsatisfactory evidence establishes single went occasionally socialise need apparently mr groth said evidence spent 30 40 week food hat left little way explanation spent balance aggregate sum referred beyond regular overpayment radio rental clearly reduced available monthly fund radio rental bore knowing responsibility extent evidence mr groth fell actual financial difficulty occurred early 2002 made substantial commitment charge card retailer action time demonstrated inability fact conserve interest difficulty consequence unconscionable conduct respondent part add derived little assistance matter mr vickers evidence extent supported mr groth second half 2002 inability manage finance time clearly manifested led time unravelling relationship radio rental put notice disability 196 mr groth actual circumstance may bordered straitened satisfied evidence accc made case financial hardship fact radio rental ought aware bore responsibility conclusion principal claim197 proceeding highlighted three matter first peculiar vulnerability person like mr groth unable fact conserve interest course put people deal notice incapacity consequence attributed innocently power posse redound distinct disadvantage circumstance matter demonstrate 198 second matter highlighted flow first conduct day day retail transaction related dealing much cannot expected ordinary people routine job way critical appraisal employer customer affair ought attributed power responsibility foreign reasonably expected virtue particular setting reason company properly expected protection interest derivatively interest deal place appropriate risk management practice practice facilitated modern technology would emphasise passing present case pleaded respondent risk management practice 199 third matter relates problem attributing knowledge state mind corporation light might inferred aggregating information derived multiplicity discrete transaction dealing involving corporate employee adventitiously participate matter without suspecting way anything ordinary permit aggregation circumstance present purpose attributing particular state mind company prelude finding unconscionable conduct eviscerate unconscionable conduct meaning cfstern v mcarthur 1988 hca 51 1988 165 clr 489at 503 purpose unconscionable dealing doctrine would result company held guilty exploitation victimisation another without officer agent company suspicion reason suspect company acting case 51ab company would held acted unreasonably clearly unfairly without reason appreciate acting 200 one thing proscribe advantage taking commercial enterprise specially disadvantaged person quite another make enterprise effect insurer light finding made accc principal claim must dismissed 201 purpose 51aa claim mr groth could said position special disadvantage finding knowingly taken advantage respondent victimised exploited earlier indicated point different risk management practice respondent may able detect mr groth circumstance take step assist case although faint echo accc written closing submission said corporate business sale agent responsibility ensure take unfair advantage customer responsibility said requires business alert fact customer may vulnerable would say positive neighbourhood like obligation implicit stand apart law unconscionable dealing conceptualised date appears distinctly tort like character conjuring negligent failure discharge claimed responsibility 202 unfair conduct judgment required made 51ab similarly open light finding doubtless relative bargaining position respondent mr groth unequal cf 51ab 2 evidence disclose unfair use radio rental little doubt mr groth understand detail general term condition various agreement respondent cf 51ab 2 c nonetheless satisfied sufficiently evident radio rental dealing evidence suggest term required accept differed required customer unfair tactic used unfair pressure exerted upon relation dealing respondent 203 course event matter unfortunate indeed case pleaded affords proper reason passing adverse judgment respondent 51ab participation event shown acted unfairly ancillary claims204 allege unconscionable conduct respondent raising service agreement without mr groth consent ii transferring fund one agreement another without consent iii accepting return good substantial payment made claim presuppose circumstance principal claim established simply exemplification unconscionable conduct radio rental part 205 must fail given fate principal claim intend deal length raising service agreement without mr groth knowledge consent206 seven occasion four day 24 october 2002 radio rental raised new service contract mr groth transferred money overpaid agreement new contract sum involved variously 32 8 8 case day agreement 13 20 none instance mr groth give prior consent raising agreement transfer one account another agreement substance renewal annual service agreement expired 207 radio rental according evidence made assumption customer wished continue agreement least continued make payment expired agreement mr groth made complaint concerning occurred made service call several 208 four agreement raised day pose distinct problem four day raised radio rental put notice mr groth disability lawyer acting advising existing agreement rescinded communication appear relevant credit history earlier communication mr vickers radio rental september 2002 recorded relevant credit history foreshadowed possible cancellation account nonetheless four agreement raised reason apparently weekly computer search identified four annual service contract due expiry new contract raised accordingly 209 light finding principal claim case three service contract left evidence business practice mean applied mr groth subject criticism accc case fought basis propriety otherwise practice accordingly practice may necessarily criticism prepared conclude sufficient justify stigmatising respondent conduct unconscionable 51ab purpose would note reliance placed 51aa respect ancillary claim 210 though four day contract raise quite different consideration bespeak inadequacy risk management practice rather knowing exploitation mr groth consider radio rental conduct raising agreement clearly unfair 51ab purpose although event transpired provided clear lesson learned respondent contract never raised matter viewed prism 51aa may able said formally radio rental knowingly took advantage mr groth given lawyer communication 20 september 2002 substance though radio rental least simply entering agreement manner consider would case sought insist upon right agreement 211 reject claim ii transferring overpaid fund one agreement another without consent212 apart seven instance fund reallocated new service contract radio rental transferred fund agreement without mr groth actual consent aggregate amount dealt including seven service agreement 340 00 individual transfer exceed 20 00 three occasion largest sum 45 20 various transfer involved rental service account 213 accc suggested transfer time discharge liability mr groth respondent neither contended money paid satisfy particular indebtedness impressed aquistcloselike trust satisfy purpose cfquistclose investment ltd v roll razor ltd 1970 ac 567 214 whatever may case sum question significant amount transfer hardly bespeak conduct unconscionable particular practice engaged could variously categorised undesirable unauthorised undisclosed sensible given alternative returning small sum particular significance given going debtor creditor relationship party would begun assume character unconscionable conduct accc made principal claim practice could seen manifestation conduct 215 reject claim iii accepting return goods216 accc complaint two occasion radio rental entered agreement second refrigerator fourth television mr groth returned like appliance paid 2 854 30 term total 2 962 00 1 103 20 term total 1 269 00 respectively accc submission make plain particular submission premised radio rental knowledge mr groth circumstance limitation knowledge adverse finding would difficult resist found contrary standing alone evidence return mr groth availed facility provided rental agreement 217 reject claim well conclusions218 rejected claim made respondent 219 order application dismissed applicant pay respondent cost application certify preceding two hundred nineteen 219 numbered paragraph true copy reason judgment herein honourable justice finn associate dated 17 august 2005counsel applicant m e strong qc m k beansolicitor applicant australian government solicitorscounsel respondent mr j myers qc mr c hoffmansolicitor respondent minter ellisondate hearing 18 19 20 21 22 27 28 29 april 2005date judgment 17 august 2005

SZVXU v Minister for Immigration and Border Protection [2018] FCA 1257 (22 August 2018).txt

szvxu v minister immigration border protection 2018 fca 1257 22 august 2018 last updated 23 august 2018federal court australiaszvxu v minister immigration border protection 2018 fca 1257appeal szvxu v minister immigration anor 2017 fcca 2581file number nsd 2020 2017judge derrington jdate judgment 22 august 2018catchwords migration natural justice opportunity heard whether applicant afforded opportunity heard relation relocation whether tribunal misled applicant issue addressed new ground raised appeal whether sufficient merit explanation provided failure raise ground leave refused appeal dismissedlegislation migration act 1958 cth case cited cnn15 v minister immigration border protection 2017 fca 579murad v assistant minister immigration border protection 2017 fcafc 73szbyr v minister immigration citizenship 2007 81 aljr 1190szjhe v minister immigration citizenship 2008 fca 1771date hearing 20 august 2018registry new south walesdivision general divisionnational practice area administrative constitutional law human rightscategory catchwordsnumber paragraph 42solicitor appellant mr l jacob sydney immigration lawsolicitor respondent mr k eskerie sparke helmoreordersnsd 2020 2017between szvxuappellantand minister immigration border protectionfirst respondentadministrative appeal tribunalsecond respondentjudge derrington jdate order 22 august 2018the court order appellant leave rely upon affidavit mr sarkis 29 july 2015 hearing appeal leave amend notice appeal refused appeal dismissed appellant pay first respondent cost appeal note entry order dealt inrule 39 32of thefederal court rule 2011 reason judgmentderrington j introductionon 26 april 2013 appellant 33 year old citizen lebanon applied department immigration protection class xa visa protection visa 29 april 2014 delegate minister refused application applied refugee review tribunal administrative appeal tribunal tribunal 9 may 2014 decision 25 november 2014 tribunal affirmed delegate decision grant protection visa 29 december 2014 appellant made application federal circuit court australia fcc pursuant tos 476of themigration act 1958 cth act seeking review tribunal decision judgment dated 31 october 2017 court dismissed application review background factsas mentioned appellant lebanese citizen arrived australia 12 may 2013 claim protection visa founded assertion return lebanon would risk harm sunni muslim committed supporter future movement opposed syrian regime alawis hezbollah ambition fight syrian alawis tripoli also claimed feared harm ongoing dispute family family called hassoun family latter respect claimed 13 year old cousin attacked hassoun family january 2013 subsequent clash member hassoun family killed tribunal decisionthe essence tribunal decision disbelieved appellant evidence proffered support claim whilst discount existence sectarian violence area tripoli lebanon appellant lived held able relocate within lebanon beirut would risk harm without disservice long careful detailed reason tribunal found satisfied appellant member family targeted hassoun family specifically targeted b appellant evidence relation issue surrounding hassoun family vague confused unpersuasive provided satisfactory evidence family might targeted c appellant claim alleging 13 year old cousin involved altercation hassoun family rejected untrue evidence surrounding vague disjointed unpersuasive tribunal found real chance appellant family would suffer serious harm hassoun family appellant membership family convention reason e tribunal accepted appellant member militia known khodr el masri martyr militia role engaged armed clash alawites neighbouring suburb however rejected suggestion leadership role conflict position rose higher militiaman f tribunal satisfied country information appellant face real chance serious harm reason opposition hezbollah involvement sectarian clash tripoli g tribunal also concluded satisfied lebanese army involved harming current former member appellant militia h tribunal satisfied appellant risk lebanese army criticism killing two sheik tribunal satisfied appellant would suffer serious significant harm hand hezbollah lebanese army pro syrian syrian regime tribunal rejected claim april august 2014 people said alawites directed threat towards j tribunal accept appellant would face serious harm opposition militia force return home neighbourhood continue engage sectarian violence also found would suffer significant harm home tripoli k tribunal found appellant relocate beirut would engage sectarian violence would concerned conflict tripoli beirut would entitled express view support militia without threat harm l circumstance tribunal found would reasonable practicable appellant safely relocate beirut would reasonable expect would real risk significant harm application federal circuit courtas learned judge noted ground appeal fcc tribunal misunderstood case misapplied law honour rejected suggestion purported ground revealed jurisdictional error tribunal face tribunal reason considered detail claim variously made appellant course consideration protection visa application well review tribunal 35 court found nothing tribunal reason suggest misunderstood aspect claim finding fact reasonably open material honour held tribunal reason making particular finding fact probative material also suggestion misapplied law relation decision generally fcc found tribunal application relevant law respect issue ability appellant internally relocate compliant authority b tribunal fault putting inconsistency gap appellant evidence purpose ofs 424a 1 act szbyr v minister immigration citizenship 2007 81 aljr 1190 c appellant told delegate recorded tribunal constitute rejection denial undermining claim fear harm tribunal reason disclosed hearing much discussion appellant said delegate initial interview cannot said respect tribunal failed discharge obligation unders 424a 1 act e appellant written submission court merely raised factual issue surrounding tribunal decision matter going question law f subsequent hearing written submission provided fcc may raised issue whether tribunal failed consider relevant country information provided appellant say relevant ability relocate number document identified provided tribunal respect court noted tribunal required set decision evidence considers need set evidence finding based obligation tribunal address appellant claim aspect claim suggested article raised additional claim aspect existing claim g relation question whether tribunal required consider objection relocation appellant asserted medium report referred contained additional argument concern respect largely said confirmatory claim h weight ascribed tribunal member country information matter merely listing piece information reason decision mean tribunal gave active consideration relation last issue appellant complaint seems document referred tribunal reasoning however tribunal accept real chance harm appellant local neighbourhood tripoli opposing militia force issue found tribunal favour appellant apparently accepted substance information contained document refer would follow assist appellant say tribunal specifically identify document reason court specifically identified information delivered tribunal included identification document relating conflict hassoun family appellant tribunal reason referred receiving country information fair reading would appear include country information submitted appellant held tribunal consideration determination issue relocation based document provided including provided appellant relation remainder document appellant say considered court found appellant establish balance probability tribunal consider relevant evidence see 90 reason however clear tribunal specifically raised issue sectarian violence tripoli outside tripoli hearing context considering whether real chance serious harm sectarian violence opposing militia appellant return neighbourhood relation area lebanon tribunal specifically identified country information suggest sectarian violence existed appellant neighbourhood spread beirut given tribunal specifically referred issue country information would need show tribunal overlooked document specifically refers concerning sectarian violence beirut learned judge held able learned judge also identified appellant would need show critical piece evidence would led different outcome 94 found even though tribunal made explicit reference particular piece country information reasonable inference could drawn failed take specific medium article account result application dismissed proceeding courtthe ground asserted appellant case obscure ground 1 jurisdictional error federal circuit court failed consider applicant contention failed adhere statutory requirement thereby failing exercise jurisdiction consequently making jurisdictional error ground 2 jurisdictional error federal circuit court failed accord applicant procedural fairness affidavit filed appeal appellant contains reason federal circuit court tribunal delegate appellant written submissionswhen matter called hearing may sitting full court appellant appeared assisted friend minister appeared solicitor appellant filed written submission sought adjournment opposed minister appellant filed written submission seek rely minister filed submission response written submission appellant seek raise two ground neither find support contention notice appeal arises assertion tribunal correctly apply relevant law matter internal relocation relevant law set 5 appellant submission read indfc16 v minister immigration border protection 2018 fcafc 56 40 test relocation whether practicable particular circumstance particular applicant szatv v minister immigration citizenship 2007 hca 40 2007 hca 40 2007 233 clr 18at 24 andszfdv v minister immigration citizenship 2007 hca 41 2007 hca 41 2007 233 clr 51 answer question turn depends upon framework set particular objection raised relocation randhawa 1994 fca 1994 fca 1253 1253 52 fcr 437at 442 443 especially 443 c appellant say tribunal apply test whether relocation practicable considering framework set particular objection raised relocation written submission main point tribunal put appellant proposition ability relocate beirut avoid harm housan family allow respond appellant say put go live beirut housan family given stronghold abu samra unlikely come looking beirut want say something mr merhab think thing perhaps thing want tell let talk witness come back ab 304 15 said appellant invited say anything denied natural justice failure accord natural justice minister opposes raising new ground appeal correct submit leave required principle governing exercise discretion grant leave raise new ground appeal recently identified inmurad v assistant minister immigration border protection 2017 fcafc 73 murad per griffith mortimer perry jj honour said 19 general principle guiding decision whether permit ground raised appeal run well settled reflected following observation full court invuax v minister immigration multicultural indigenous affair 2004 fcafc 158 238 fcr 588at 46 48 recently reaffirmed substance flick rangiah jj insun v minister immigration border protection 2016 fcafc 52 243 fcr 220at 89 90 46 view application leave rely upon sole ground appeal raised refused leave argue ground appeal raised primary judge granted expedient interest justice brien v komesaroff 1982 hca 33 1982 150 clr 310 h v minister immigration multicultural affair andbranir pty ltd v owston nominee 2 pty ltd 2001 fca 1833 2001 117 fcr 424at 20 24 38 47 incoulton v holcombe 1986 hca 33 1986 162 clr 1 gibbs cj wilson brennan dawson jj observed joint judgment 7 fundamental due administration justice substantial issue party ordinarily settled trial main arena settlement dispute would move court first instance appellate court tending reduce proceeding former court little preliminary skirmish 48 practice raising argument first time full court particularly prevalent appeal relating migration matter court may grant leave point taken clearly merit advanced real prejudice respondent permitting agitated however adequate explanation failure take point seems doubtful merit leave generally refused view proposed ground appeal merit justification therefore permitting raised first time court minister also correctly submits order advance ground appeal must founded error primary judge federal court exercise original jurisdiction migration matter accordance withs 476aof act save certain statutory criterion met accepted court appeal occasion reconsider tribunal reason distinct considering correctness reason judge seeszjhe v minister immigration citizenship 2008 fca 1771at 6 8 andcnn15 v minister immigration border protection 2017 fca 579at 13 14 said inmurad court would generally require adequate explanation failure take point court court appellant represented solicitor point advanced taken explanation provided minister also submits order advance new ground appeal appellant need adduce fresh evidence fresh evidence form affidavit mr laba saki apparently interpreter deposes listened recording hearing tribunal transcribing claimed transcript attached affidavit affidavit filed federal circuit court 6 august 2015 however relied upon hearing court paragraph 26 reason judgment primary judge observed appellant representative court asked specifically appellant sought rely affidavit honour told appellant elected explanation decision made absence explanation circumstance weighs heavily granting leave merit proposed groundsin considering whether leave ought granted allow appellant advance new claim consideration merit warranted also impact upon whether leave given adduce material minister submits making internal relocation finding tribunal considered evidence provided appellant various claim particular tribunal formed view appellant would engage sectarian violence internally relocate beirut ab245 56 found real chance appellant would subject serious harm relocate beirut even continue express view support future movement done previously tribunal also considered appellant relatively young resourceful able find employment support australia able support family previously working number different low skilled job context tribunal satisfied would reasonable practicable appellant relocate safely beirut tribunal reason 55 59 show specifically considered appellant ability relocate beirut given particular circumstance identified finding fact made conclusion tribunal satisfied authority referred tribunal considered whether practicable particular circumstance appellant relocate considered framework particular objection course oral submission solicitor appellant expanded new ground appearing written submission argued tribunal failed regard claim appellant risk harm hand hezbollah beirut solicitor minister argued new argument raised previously submission accurate framed properly would claim tribunal constructively failed consider appellant claim failed consider integer claim advanced also submitted appellant misled questioning tribunal prevented giving evidence fear harm hezbollah beirut solicitor minister identified evidential difficulty submission evidence appellant misled perceived opportunity inform tribunal concern new claim advanced written submissionsit appropriate first consider new ground raised written submission appellant given opportunity respond proposition would risk housan family relocate beirut passage transcript ab304 appellant relies set establish appellant denied opportunity give evidence particular topic apparent reading transcript whole pause conversation recorded many time throughout hearing appears transcript member frequently offered appellant opportunity respond question wanted hesitant providing answer passage ab304 show appellant invited provide response proposition would risk hassoun family beirut stronghold abu samra unlikely invited appellant respond member immediately asked think thing provide information later likely scenario appellant invited say something response say anything whereupon member advised think thing indeed immediately exchange appellant raised topic member nothing suggest inhibited responding member question transcript evidence reveals period time member asked appellant wished say anything member said 311 alright mr anything else wanted tell finished asking question wanted ask period time discussion concerning housan family question long would forgotten proposition relocation additionally tribunal member granted appellant opportunity provide evidence following hearing including evidence anything else wanted provide circumstance appellant given every opportunity advance case including evidence tribunal minister also point shortly passage transcript ab304 appellant relies asked whether wanted say anything whether would risk harm beirut occasion advance case anything wished support minister also point process delegate question whether appellant could safely relocate beirut raised invited provide written explanation would able believed case follows substance argument appellant given opportunity comment proposition would risk harm live beirut hearing appellant also raised new ground misled tribunal said believed journey beirut stayed airport 14 15 hour submission effect statement tribunal caused think accepted claim fear harm hezbollah beirut need say anything minister submits evidence support conclusion passage cited course hearing identified reveals ability appellant relocate beirut important issue tribunal invited provide information evidence relating topic evident afforded every opportunity advance case regard new argument raised hearingon hearing appeal appellant raised argument effect tribunal consider claim would risk harm hezbollah lived beirut however apparent tribunal consider whether outside tripoli would risk noted sectarian violence concentrated around particular suburb tripoli accepted sunni militia high risk harm sectarian violence however relation position beirut said 48 statement accompanying application protection visa applicant claimed feared alawis hezbollah syrian regime interview delegate claimed laf effectively hezbollah army hearing claimed would risk killed alawis laf pursue claim relation syrian regime country information tribunal indicates hezbollah strong presence tripoli tribunal found information source consulted suggest hezbollah specifically target member sunni sectarian militia tripoli statement support application protection visa applicant claimed opposed hezbollah past year high profile politician security personnel actively opposed hezbollah assassinated tribunal found evidence source available suggest individual applicant profile opposed hezbollah policy speaking organisation without risk facing serious harm tribunal found information suggest hezbollah specifically targeted member surmi militia including khodr el masri group tripoli tribunal satisfied applicant face real chance serious harm opposition hezbollah involvement sectarian clash tripoli minister submitted passage complete answer new ground raised appellant show tribunal considered appellant claim risk harm hezbollah particularly given tribunal identified sectarian violence specially located suburb tripoli involved person involved fighting specifically found evidence source available suggest individual applicant profile risk facing serious harm hezbollah beirut said 58 59 departmental interview hearing applicant referred alleged killing friend militiaman arguing reached anywhere however subsequent written evidence department oral evidence tribunal indicate abadi khazana ramus mrad abu jamal nuhaili killed alawi fighter including sniper jabal mohsen around tripoli indeed upon returning lebanon october 2014 short stay applicant stayed mostly beirut applicant claim pursued targeted anyone beirut tribunal satisfied real chance applicant subjected serious harm internally relocate beirut fair reading reason tribunal alive contention appellant would risk harm hezbollah militia man tripoli however also clear tribunal considered would risk harm beirut would engaged sectarian fighting properly considered whether appellant political view supporter future movement would put risk harm hezbollah beirut determined would paragraph 58 said applicant claimed supporter future movement according dfat future movement supporter would risk hezbollah main opponent movement unless presented direct threat hezbollah political power lebanon practice case senior leader movement tribunal find applicant relocate beirut express view support future movement level past real chance face serious harm political adversary anyone else lebanon follows tribunal fail consider appellant claim integer claim fully considered whether would risk harm hezbollah beirut held would disposition appealin light apparent new ground appeal variously raised appellant written submission oral submission sustainable little merit addition explanation given ground advanced primary judge circumstance bound decision full court inmuradand appellant ought refused leave rely upon ground ground advanced support appeal result must dismissed reliance affidavit mr sarkis necessary determination appellant argument appropriate leave given rely upon appeal conclusionit follows leave given rely upon affidavit mr sarkis 29 july 2015 application leave amend notice appeal refused appeal dismissed cost certify preceding forty two 42 numbered paragraph true copy reason judgment herein honourable justice derrington associate dated 22 august 2018

SZHTL & Ors v MIMA & Anor [2007] HCATrans 217 (22 May 2007).txt

szhtl or v mima anor 2007 hcatrans 217 22 may 2007 last updated 31 may 2007 2007 hcatrans 217in high court australiaoffice registrysydney s313 2006b e w e e n szhtlfirst applicantszhtmsecond applicantszhtnthird applicantandminister immigration multicultural affairsfirst respondentrefugee review tribunalsecond respondentapplication special leave appealpublication reason pronouncement orderskirby jcallinan jtranscript proceedingsat canberra tuesday 22 may 2007 9 45 amcopyright high court australiakirby j applicant husband wife child found national india entitlement husband child treated derivative applicant wife applicant arrived australia march 2004 philippine applicant husband enjoyed permanent resident status since 1992 initially presented claim protection visa based upon applicant propounded fear persecution return philippine basis fear suggested violence harassment philippine directed member sikh community punjab resident philippine april 2005 delegate minister refused applicant application applicant applied review refugee review tribunal tribunal tribunal although applicant husband present hearing applicant wife took running asserted claim protection upon family relying examining suggested base propounded fear persecution philippine tribunal correctly addressed attention fact primary obligation afford applicant protection fell refugee convention protocol upon india country nationality explained applicant wife asserted various factual ground applicant could return india applicant husband although present offer give evidence point apparently asked question tribunal result tribunal rejected claim protection part decision based upon extensive country information concerning situation punjab part based fact claim fear returning india vague lacking detail part based conclusion difficulty applicant returning india husband wife derived tribunal noted husband returned india without hindrance philippine therefore rejected fear persecution propounded applicant wife dismissed application review applicant sought judicial review federal magistrate court application failed appealed full court federal court court appellate jurisdiction exercised cowdroy j honour refused application applicant wife add ground appeal point conceivable legal substance application contained one ground addressed suggested jurisdictional error part tribunal failing call applicant husband forward person knowledgeable foundation propounded fear returning india case applicant given fair opportunity give evidence purported fear return india distinct philippine point might substance however cowdroy j examined transcript proceeding tribunal evidence federal court honour noted transcript confirmed tribunal explained applicant husband entitled give evidence wished applicant husband declined basis relevant ground appeal rejected merit conclusion clearly open federal court reasonably arguable basis jurisdictional legal error appears case prospect success court special leave granted accordingly special leave refused applicant unrepresented application dealt accordance rule 41 10 high court rule pursuant rule 41 10 5 direct registrar draw sign seal order dismissing application publish disposition signed justice callinan 9 49 matter concluded

D'Andrea v Monash CC [2008] VCAT 500 (27 March 2008).txt

andrea v monash cc 2008 vcat 500 27 march 2008 last updated 2 april 2008victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference p2757 2007permit application tpa 35193catchwordsmonash planning scheme application undersection 77of theplanning environment act 1987 act review decision refuse permit industrial 1 zone retrospective permission sought mezzanine addition building work proposal waive carparking associated expanded floor space characterisation use site near residential area applicantstephen andrearesponsible authoritymonash city councilsubject land13 edinburgh street oakleigh southwhere heldmelbournebeforemary anne taranto memberhearing typehearingdates hearing29 january 7 february 2008date order27 march 2008citationd andrea v monash cc 2008 vcat 500orderthe decision responsible authority affirmed permit application tpa 35193 permit granted mary anne tarantomemberappearances applicantmr nick crawford solicitor best hooper solicitor called mr russell fairlie traffic engineer ratio consultant pty ltd give evidence responsible authoritymr peter farrell barrister instructed macpherson kelley lawyer called mr andrew brien traffic engineer brien traffic give evidence reasonsintroductionthis case concern proposal seek retrospective permission external internal modification existing factory situated industrial 1 zone fringe residential area oakleigh south substantial work involve new mezzanine level floor area 447sq almost doubling original permission given council 486sq floor area ground level additional site parking proposed permission also sought waiver car parking external alteration contentious rather consequential carparking implication mezzanine addition dispute original approval factory obtained planning permit 23818 existing permit issued council 1 25 july 1997 description permit allows set full follows development factory building car parking landscaping plan development endorsed council day relation car parking endorsed plan show 6 car space accessed central driveway 3 space side condition 1 permit requires use development shown endorsed plan must altered without written consent responsible authority 28 november 2006 council officer inspected site becoming aware work contention apparently receiving complaint officer report provides succinct summary modification observed roller door loading bay area driveway repositioned centre site eastern side site car parking space relocated western side driveway tandem arrangement eastern exit door removed stairway constructed adjacent loading bay area within building provide access newly constructed mezzanine area andpartitions erected level partition mezzanine level used office council decided refuse permit application ground primarily relate lack adequate car parking site consequential impact arising including loss amenity efficiency area surrounding subject site proposal would contrary orderly proper planning area stephen andrea permit applicant designer subject building seeking review decision key issue determination case whether reliance upon street parking cater increased demand generated mezzanine addition would acceptable outcome hearingat end first day hearing gave oral direction requiring party inform tribunal certain timeframes prior commencement second day hearing following matter whether present use land ought categorised industry warehouse better particular relation existing use conducted land direction given mr crawford relevant document relied upon council determining appropriate car parking rate original permit granted direction given mr farrell andwhether question law arising answer question whether party consent tribunal constituted non legal member determine question discus response first three direction shortly relation last direction record question law arose subject site localitythe review site located north side edinburgh street colin road milgate street oakleigh south rectangular shaped lot frontage 18 288m depth 40 335m yielding total area 737sq factory building review site setback 11 8m frontage built side rear boundary constructed concrete panel flat metal roof overall height 7 5m printing business presently conducted premise consistent observation following description existing use provided mr crawford 2 ground level building land currently used purpose printing factory office production room staff facility store also provided stair mezzanine level majority flor sic area used purpose storage addition storage reception office including boardroom rarely used indigo print machine provided understood loading area provided front yellow handrail mezzanine forklift truck may place retrieve palette area truck would move palette around ground floor level palette chuck would move palette mezzanine level surrounding land used developed range industrial purpose residential area located east dwelling commencing west side colin road 130m review site area zoned residential 1 existing use land industry warehouse considerable debate hearing characterisation use conducted premise particularly use mezzanine bearing applicable car parking rate set clause 52 06 planning scheme one argument put mr crawford mezzanine level primarily used storage administrative function ought regarded warehouse rather industry parking provision associated additional floor space assessed basis use warehouse attracts lower parking rate 1 5 space per 100sq net floor area compared 2 9 space per 100sq industry second day hearing however mr crawford ultimately sought pursue reduction car parking mezzanine basis industry agree regard nature use printing operation involves production advertising brochure like use conducted land whole mr farrell rightly observed definition industry 3 land used following operation process manufacture land operation also includes storing good used operation resulting providing amenity people engaged operation selling wholesale good resulting operation andaccounting administration connection operation material recycling good resulting operation may sold retail thus starting point assessing applicable car parking rate additional floor area use industry planning scheme provisionszone overlaysthe land included industrial 1 zone zone planning permit required building work includes internal arrangement building gross floor area increased given work expressly exempt need obtain permission zone clause 62 02 2 provides requirement scheme relating construction building construction carrying work apply internal rearrangement building work provided gross floor area building size work increased number dwelling increased industry 4 warehouse 5 us industrial 1 zone require planning permit subject certain condition 6 site also affected design development overlay schedule 1 planning permit required building work car parking clause 52 06clause 52 06 1 provides new use must commence floor area existing use must increased required car space provided land floor area occupied existing use increased parking requirement applies floor area extension use site area provided existing number car space reduced permit required reduce waive required number car space industry specified planning scheme rate 2 9 car space per 100sq net floor area considering proposal reduce waive carparking decision guideline set clause 52 06 1 require applicant must satisfy responsible authority tribunal review reduced provision justified due number matter including availability car parking public transport locality sharing car space multiple us car parking deficiency surplus associated existing use land local traffic management local amenity including pedestrian amenity empirical assessment car parking demand relevant consideration state local policiesthere number state planning policy relevant proposal taken account 7 relevant local policy follows clause 21 07 industryclause 22 03 industry business development character policy industry business development character policy site located within industry character type 2 particular provisionsclause 65 set decision guideline must considered appropriate considering permit application relevance state local planning policy provision referred purpose zone relevant control orderly planning area effect amenity area basis decisionintroductionthe party hearing application review relied written oral submission number photograph plan document tendered tribunal retained file also conducted inspection site locality first second day hearing set finding relation key issue application regard submission material presented hearing inspection site surround policy objective decision guideline scheme turning key issue dispute necessary say something principle applied determining whether grant permit would authorise development undertaken unlawfully assessing merit proposal mr farrell submitted work constructed without permission ought put permit applicant disadvantage derive advantage circumstance approach consistent thevan egmondprinciple 8 long established principle summarised osborne j supreme court case ofknox city council v tulcany pty ltd 2004 vsc 375at 13 b permit applicant neither punished rewarded undertaking work permit obtained agree adopt principle light finding refuse proposal also note mr farrell submission ought concern ultimate fate mezzanine tribunal considers insufficient carparking council expects permit applicant bring building compliance approved occur enforcement avenue open council additional parking demand generated additional floor space applying planning scheme rate 2 9 space per 100sq industry mezzanine would generate requirement 13 additional car space witness agreed however likely demand would le rate mr brien called give evidence council contended taking account particular characteristic building parking rate 2 2 space per 100sq might generated mezzanine calculate equates demand additional 10 space 9 hand mr fairlea evidence parking rate 1 3 space per 100sq could expected equivalent 6 additional space arriving rate mr fairlea relied upon number data source comprising mode travel existing staff rate 0 89 space per 100sq said represent peak parking demand associated mezzanine various parking survey including 7 development designed applicant said generate peak demand 0 34 1 44 space per 100sq average 0 85 rate set rta guide traffic generating development specifies rate 1 3 space per 100sq gross floor area striking rate mr fairlea also relied upon availability public transport nearby cross examination mr farrell described public transport good huntingdale train station 1 1km away bus service along north road including smart bus service north road 450m away considered evidence presented witness reviewing case ofaltona garden estate pty ltd altona industrial centre pty ltd v hobsons bay cc 2007 vcat 630 10 referred mr crawford agree rate le 2 9 space per 100sq warranted consider however likely demand likely higher rate 1 3 space per 100sq suggested mr fairlea lower mr brien rate 2 2 space per 100sq think rate around 1 8 space per 100sq probable equates demand 8 additional car space making finding think parking demand generated existing tenant ought taken sound measure future parking demand industrial use subject building consider parking rate assessed basis land use rather user also consider public transport make contribution towards application lesser parking rate think site well serviced public transport warrant reduction magnitude suggested mr fairlea reluctant give substantial weight industrial development surveyed mr fairlea firm absence detailed information nature premise surveyed physical attribute including internal layout understand example may include display space notwithstanding even adopt mr fairlea lower rate would attract demand 6 additional car space overall conclusion proposal refused would remain unchanged reason explain would reliance upon street car parking produce acceptable planning outcome mr brien mr fairlea agreed order 25 35 street parking space available within distance 150m site consistent observation despite common ground availability street parking space witness reached different conclusion acceptability proposal reliance upon space mr fairlea opinion taking account estimate expected demand linemarking existing site space existence two kerbside space front site spill parking demand would unreasonable could readily met existing supply mr brien opinion however additional parking demand generated use would consume excessive number street parking space would reliance upon use kerbside space front premise contended would produce inequitable outcome business agree mr brien conclusion asked fully waive parking requirement associated mezzanine addition observe council granting original permission already discounted parking requirement one decision guideline clause 52 06 1 car parking deficiency surplus associated existing use land cumulative impact parking dispensation consideration regard relevant proposal true number carparking space required limited additional floor area inescapable fact properly linemarked minor modification extent paving 6 parking space excluding loading bay inside building provided site mezzanine addition resultant parking rate 0 64 space per 100sq building total floor area think would promote outcome consistent notion orderly planning relevant matter consideration clause 65 planning scheme outcome supported planning policy say number reason firstly site located fringe residential area residential property located 130m away east think higher imperative provide adequate number site parking space location like compared le sensitive location site within industrial heartland importantly council industry policy clause 21 07 recognises interface issue residential area exist location relevant strategy arising identification issue ensure negative impact industrial us surrounding residential area minimised reduced possible secondly likelihood age condition surrounding industrial development progressive redevelopment precinct occur scenario recognised industry policy clause 21 07 1 policy observes older industrial area like one opportunity exists significant redevelopmentand enhancement image local precinct much industrial area tend older characterised smaller setback street parking problem interface issue residential area exist location access various industrial area inadequate term road layout condition application modern planning standardsincluding enhanced landscaping increased setback gradually improve amenity area improve working environment local population emphasis mine key issue described policy include need balance complexity existing industry growing demand office high technology said affecting structure industrial area policy objective particular relevance issue stake case follows balance need maintain operating condition traditional industrial land us ensure continued viability within growing demand office technology land us encourage office development complement warehousing industrial area two relevant strategy enhance physical environment public transport access traffic car parking network industrial area improve car parking provision traffic flow industrial area discourage street parking amongst thing implementation strategy occur applying industry business development character policy clause 22 03l one decision guideline whether adequate site car parking vehicular access provided accept empirical evidence support use street parking present time consider extent reliance upon street parking odds thrust local policy policy seek progressively improve amenity industrial area application modern day planning standard read also include car parking standard reduce reliance upon street parking thus minimise reduce adverse impact upon residential area interface industrial area find proposal would contrary strategic intent policy thirdly accept tandem parking arrangement workable limited single occupant like one may time prove inconvenient resulting greater reliance upon street parking might otherwise case loading unloading arrangement also pose constraint use tandem bay mr fairlea stated present truck tend usually drive directly site unload driveway without driving loading dock within warehouse arrangement consistent observation two delivery vehicle inspection fatal proposal nonetheless relevant matter consideration call question convenience site parking bay potential increase reliance upon street parking finally agree sentiment aptly expressed member keaney case ofleonara group pakenham pty ltd v cardinia sc 2005 vcat 385 case involved proposal 980sq office building 13 site parking space expert evidence parking demand varied 25 space one witness assessment 34 space another member keaney set aside council decision refused grant permit acknowledge use proposed inleonaracase office council embarked upon detailed urban design framework including detailed parking analysis adopted standard planning scheme rate 3 5 space per 100sq net floor area office nonetheless key principle relation issue car parking equally apply case decision submitted office building le half parking site fly face council recent strategic planning odds orderly proper planning self evident half car attending site park elsewhere finally convinced criterion reduction specified clause 52 06 1 met proposal may empirical evidence support caseespecially james stephenson noted likely short term outcome applicant benefit detriment user subsequent developer approval development mean forever site sharing burden car parking responsibility impose inheritance undersupply throughout central area concern inevitable residential amenity impact would occur development redevelopment shift long term car parking away centre residential area simply enough site parking required emphasis mine like theleonaracase conclude sound justification allowing proposal rely upon street parking meet half anticipated parking demand street parking scarce public resource consumption degree proposed arising failure site provide adequate number site parking space would view produce inequitable outcome would disadvantage business nearby future conclusionthis particularly difficult case determine considered relevant policy planning scheme requirement site location fringe residential area notion orderly proper planning issue equity decided insufficient justification support virtual doubling floor space without additional site parking therefore conclude proposal refused decision responsible authority affirmed direct permit issue mary anne tarantomember 1 planning permit 23818 issued delegation officer council 2 facsimile dated 5 february 2008 mr crawford received tribunal response direction gave seeking better particular existing use 3 clause 74 victorian planning scheme 4 material recycling 5 mail centre shipping container storage 6 condition set table us clause 33 01 1 7 clause 11 01 introduction clause 11 03 1 settlement clause 12 metropolitan development clause 17 03 industry clause 19 03 design built form 8 principle set mr morris chairman planning appeal board invan egmond v city knox bassett or 1985 3 pabr 249at 250 9 rounded 9 8 space 10 heard senior member marsden rate 1 75 space per 100sq net floor area adopted

Kazi v Minister for Immigration & Multicultural Affairs [2000] FCA 1181 (14 August 2000).txt

kazi v minister immigration multicultural affair 2000 fca 1181 14 august 2000 last updated 5 september 2000federal court australiakazi v minister immigration multicultural affair 2000 fca 1181mohammed omar ali kazi v minister immigration multicultural affairsn411 2000wilcox jsydney14 august 2000in federal court australianew south wale district registryn411 2000between mohammed omar ali kaziapplicantand minister immigration multicultural affairsrespondentjudge wilcox jdate 14 august 2000place sydneythe court order 1 application dismissed 2 applicant mohammed omar ali kazi pay cost respondent minister immigration multicultural affair note settlement entry order dealt order 36 federal court rule federal court australianew south wale district registryn411 of2000between mohammed omar ali kaziapplicantand minister immigration multicultural affairsrespondentjudge wilcox jdate 14 august 2000place sydneyextempore reason judgment1 wilcox j application review decision refugee review tribunal refusing application protection visa made applicant mohammed omar ali kazi court may review decision tribunal relation matter specified ins476of themigration act 1958 broadly speaking matter concern mistake law failure follow statutory procedure 2 mr kazi raised ground fall withins476of themigration act mr kazi made clear unhappy decision refugee review tribunal said satisfactory tribunal accept evidence paper produced asked send case back tribunal considered 3 mr kazi also told fear returning bangladesh indeed able problem would face country 4 understand mr kazi regard tribunal decision satisfactory however open set aside tribunal decision unless ground review withins476of themigration act particular would open set aside decision simply reached conclusion tribunal finding fact unsatisfactory fact reached conclusion fact function 5 read tribunal decision care knew mr kazi would probably lawyer representing today therefore considered whether sign legal error tribunal found sign mr kazi failed tribunal tribunal accept claim fact involve finding law 6 ground review withins476is established must dismiss application order court application dismissed cost certify preceding six 6 numbered paragraph true copy reason judgment herein honourable justice wilcox associate dated 14 august 2000applicant appeared personcounsel respondent r beech jonessolicitor respondent australian government solicitordate hearing 14 august 2000date judgment 14 august 2000

Lace Holdings Pty Ltd v Minister for Immigration & Multicultural Affairs [2002] FCA 254 (15 March 2002).txt

lace holding pty ltd v minister immigration multicultural affair 2002 fca 254 15 march 2002 last updated 15 march 2002federal court australialace holding pty ltd v minister immigration multicultural affair 2002 fca 254migration application approval standard business sponsor affirmation migration review tribunal delegate refusal application whether tribunal wrongly cast onus proof whether tribunal error procedural failure whether tribunal error law whether tribunal acted evidence materialmigration act 1958 cth s 476 1 476 1 e 476 1 g 476 4 migration regulation reg 1 20d 2 c ii 1 20d 2 1 20d 2 f minister immigration ethnic affair v wu liang 1996 hca 6 1996 185 clr 259citedcollector custom v pozzolanic enterprise pty ltd 1993 43 fcr 280 citedcurragh queensland mining ltd v daniel or 1992 fca 44 1992 34 fcr 212citedyilan v minister immigration multicultural affair 1999 fca 854citedminister immigration multicultural affair v yusuf 2001 hca 30 2001 180 alr 1citedminister immigration multicultural affair v eshetu 1999 197 clr 611 citedlace holding pty ltd v minister immigration multicultural affairsw 127 2001rd nicholson j15 march 2002perthin federal court australiawestern australia district registryw 127 of2001between lace holding pty ltdapplicantand minister immigration multicultural affairsrespondentjudge rd nicholson jdate order 15 march 2002where made perththe court order 1 application order review dismissed 2 applicant pay respondent cost application note settlement entry order dealt order 36 federal court rule federal court australiawestern australia district registryw 127 of2001between lace holding pty ltdapplicantand minister immigration multicultural affairsrespondentjudge rd nicholson jdate 15 march 2002place perthreasons judgment1 application review decision migration review tribunal tribunal made 28 march 2001 tribunal affirmed decision delegate respondent applicant meet criterion approval standard business sponsor migration regulation made themigration act 1958 cth act applicant claim aggrieved decision prevented employing person subject nomination application person applicant order review related matter ofabeywardane v minister immigration multicultural affair reason published contemporaneously reason read together ground review2 application relies three base first failure observe procedural requirement 476 1 themigration act 1958 cth act second error law involving incorrect application applicable law failure apply fact 476 1 e act third relies absence evidence material justify making decision 476 1 g 4 legislative regulatory provisions3 standard qualified business sponsor meaning div 1 4a set reg 1 20b migration regulation defined reg 1 20b mean person approved accordance reg 1 20d 4 regulation 1 20d address approval business sponsor application approval authorised reg 1 20c relevant portion former regulation relevant date read follows 1 20d 1 subject regulation minister may instrument writing approve reject application approval pre qualified business sponsor standard business sponsor 2 minister must approve application approval pre qualified business sponsor standard business sponsor made accordance regulation 1 20c minister satisfied applicant approval lawfully operating australia business employment holder subclass 457 business long stay visa would contribute creation maintenance employment australian citizen australian permanent resident ii expansion australian trade good service iii improvement australian business link international market iv competitiveness within sector australian economy b respect visa applicant seek satisfy primary criterion subclass 457 visa granted basis applicant approval employer referred subclause 457 223 4 5 schedule 2 relation visa application ii visa applicant satisfies requirement subclause minister satisfied iii applicant approval proposes direct employer australia visa applicant holder visa subregulation calledthe visa holder iv applicant approval body corporate applicant approval section 50 corporation law related body corporate proposes direct employer australia visa holder c minister satisfied applicant approval introduce utilise create australia new improved technology business skill ii satisfactory record demonstrated commitment towards training australian citizen australian permanent resident business operation applicant australia minister satisfied nothing adverse known immigration business background applicant approval e minister satisfied relevant applicant approval satisfactory record compliance immigration law australia f minister satisfied effect subclass 457 visa granted basis applicant approval employer referred subclause 457 223 4 5 schedule 2 relation visa applicant ii visa holder satisfies requirement subclause applicant approval able relation visa holder comply undertaking given applicant accordance form 1067 5 undertaking given applicant arising form 1067 date decision relevantly q comply australian industrial relation law australian level remuneration condition employment q comply immigration requirement q notify dima change circumstance may affect company capacity honour sponsorship obligation change information provided form q accept recruitment labour overseas must counter government training policy objective producing highly skilled flexible australian workforce tribunal findings6 tribunal found available evidence material lace holding satisfy regs 1 20d 2 c ii 1 20d 2 1 20d 2 f 7 tribunal conclusion relation reg 1 20d 2 c ii relating issue training following term 19 hearing review applicant response question asked tribunal sketchy evasive review applicant evidence training australian citizen permanent resident undertaken business review applicant demonstrated commitment training 8 relation reg 1 20d 2 adverse knowledge f compliance undertaking tribunal said 20 already mentioned review applicant deny complied undertaking gave previous application regard salary paid tribunal considered submission review applicant agent stating dima made attempt contact employer ascertain complying provision legislation time second sponsorship lodged notwithstanding tribunal satisfied review applicant met requirement regulation 1 20d 2 1 20d 2 f 9 additionally tribunal said evidence tribunal indicates suitably qualified australian citizen permanent resident readily available fill position par 21 10 conclusion tribunal relation reg 1 20d 2 f compliance undertaking considered context tribunal previously recounted consideration evidence following term 15 hearing review applicant reiterated much evidence contained file deny complied undertaking gave previous application suggested business slowed recent year provided nominee whatever work business could sustain belief nominee special cooking skill cannot find one else work employ 6 7 employee including nominee classified permanent casuals admitted although nominee employ since least 1997 training passing nominee skill australian citizen occurred followed following statement 16 following hearing agent submitted document including copy group certificate submission dated 5 february 2001 latter suggested review applicant could find suitable applicant fill position nominee hold nominee cook dish indian sri lankan restaurant perth cook reasoningonus proof11 lace holding submitted tribunal concluded lace holding satisfy requirement reg 1 20d purporting place onus proof upon applicant contrary provision act required submitted tribunal standing shoe minister satisfied relation matter enumerated reg 1 20d 2 said tribunal imposed wrong test asked wrong question incorrectly applied law failed apply law fact 12 agree submission respondent response fair objective reading paragraph tribunal reason decision tribunal make error law applying test effect applicant must satisfy requirement reg 1 20d par 18 tribunal recounted took account material evidence made finding light evidence material proceeded address three criterion reg 1 20d argument lace holding amount invitation discern error impermissible way minister immigration ethnic affair v wu liang 1996 hca 6 1996 185 clr 259at 271 272 collector custom v pozzolanic enterprise pty ltd 1993 43 fcr 280 287 commitment training reg 1 20d 2 c ii 13 relation tribunal finding par 19 reason quoted submitted applicant reasoning tribunal involved error law either wrong interpretation law misapplication 476 1 e act said evidence tribunal relied went question whether satisfactory record training australian citizen australian permanent resident business operation australia submitted evidence entitle tribunal conclude required second limb reg 1 20d 2 c ii applicant demonstrated commitment towards training contention tribunal failed treat requirement subparagraph disjunctively conflated test mandated 14 patent express word final sentence par 19 tribunal reason sought address question demonstrated commitment therefore error law within 476 1 e either interpretation application 15 additionally given recorded admission behalf applicant par 15 tribunal reason evidence relied upon par 19 evidence tribunal consider evidence material tribunal could reach conclusion relation absence satisfactory record also demonstrated commitment view ground review exists relation contention alternative ground 476 1 g adverse knowledge concerning business background reg 1 20d 2 16 submitted applicant explanation satisfy requirement nothing recorded tribunal adverse applicant business background two error alleged relation tribunal finding compliance undertaking first procedural non compliance requirement 368 act second evidence ground 476 1 g 4 17 paragraph 20 tribunal reason read whole last sentence cannot disembodied precedes apparent reaching conclusion relation subpar issue business background tribunal relying upon fact applicant deny complied undertaking previously given regard salary paid tribunal would entitled consider material adverse business background applicant case applicant seek minimise reliance referring sole basis finding assist applicant provide basis finding 18 paragraph 20 reason refers matter previously mentioned tribunal reason would appear addressed par 12 read 12 file tribunal contain letter dima review applicant dated 21 august 1998 letter form monitoring report seeking review applicant co operation providing information relation first business sponsor application specifically information relating evidence salary training record responding request review applicant gave indication training undertaken review applicant however review applicant provided information salary paid nominee appeared substantially le 33 500 per annum originally stated review applicant form 1068 1997 would appear subsequent telephone conversation dima review applicant review applicant claimed aware salary indicated sponsorship claimed business could afford pay high salary 19 paragraph 12 therefore also part evidentiary matrix providing foundation finding tribunal reg 1 20d 2 20 circumstance applicant case cannot satisfy requirement either 476 1 g 4 seecurragh queensland mining ltd v daniel or 1992 fca 44 1992 34 fcr 212at 220 221 andyilan v minister immigration multicultural affair 1999 fca 854at 54 58 21 turning procedural argument clear cannot succeed either tribunal set finding relation reg 1 20d 2 reg 1 20d 2 f regulation light decision high court inminister immigration multicultural affair v yusuf 2001 hca 30 2001 180 alr 1 tribunal duty provide exhaustive finding every fact objectively material decision required make obliged set finding question fact considered material decision reason inyusufit held complaint tribunal made finding fact material question cannot support ground review based failure observe procedure 430 par 77 section 368 term 430 unavailability suitably qualified australians22 next submitted lace holding conclusion par 21 suitably qualified australian citizen permanent resident readily available fill position tribunal fell error law error law said jurisdictional error rising 476 1 e alternatively b yusuf ground included application order review arose written submission applicant 23 evidence tribunal form letter mr che behalf lace holding prior employment mr abeywardane constant problem finding suitable cook employ curry business reason tribunal made statement par 16 quoted contended applicant par 16 direct contradiction finding reason par 21 therefore submitted tribunal failed take account relevant consideration decision affected jurisdictional error 24 apparent par 21 tribunal reason fail take account relevant consideration alleged rather implicitly rejected applicant assertion could find substitute made finding open evidence indicate suitably qualified australian citizen permanent resident readily available evidence tribunal disclosed evidence tribunal would entitled find mr che evidence point unreliable namely undertake training local requirement cooking business ability applicant comply undertaking reg 1 20d 2 f 25 lace holding also submitted par 20 tribunal finding conclusion error law interpretation use word able appears reg 1 20d 2 f submitted tribunal required use word satisfied applicant approval ability comply relevant undertaking however said tribunal interpreted requirement requiring satisfied applicant approval able comply undertaking 26 agree submission respondent issue following effect 27 authority found able context reg 1 20d 2 f regulation subject judicial interpretation case cited applicant deal reg 1 03 regulation instructive interpreting reg 1 20d 2 f reg 1 03 deal definition special need relative mean relative willing able provide substantial continuing assistance citizen resident 28 word able defined div 1 4a regulation elsewhere regulation act therefore take ordinary natural meaning context used new shorter oxford dictionary give meaning word able follows 2 suitable competent 4 qualification mean something sufficient power 29 word able used reg 1 20d 2 f regulation context considering whether applicant approved business sponsor relevant criterion f minister satisfied effect subclass 457 visa granted basis applicant approval employer referred subclause 457 223 4 5 schedule 2 relation visa application applicant approval isable relation visa holder comply undertaking givenby applicant accordance form 1067 emphasis added 30 applicant claim tribunal interpreted applied criterion reg 1 20d 2 f meaning applicant comply undertaking 31 context determining whether applicant suitable business sponsor assessment whether person suitable competent qualification mean sufficient power comply specified requirement must assessed manner method making assessment circumstance case tribunal must consider evidence point competency applicant comply undertaking given 32 assessing whether satisfied applicant able comply undertaking given tribunal looked evidence applicant evidence demonstrated lack commitment training applicant produced sufficient evidence suitably qualified australian citizen resident available fill position well evidence department immigration multicultural affair applicant non compliance previous undertaking made respect visa holder matter material consideration tribunal satisfied applicant able comply 33 tribunal could move question applicant alleges asked e whether applicant comply undertaking first determining whether applicant able comply applicant able comply probability comply case evidence applicant demonstrated able comply undertaking tribunal determined applicant comply despite competent comply 34 present case tribunal correctly interpreted applied reg 1 20d 2 f regulation satisfaction applicant ability comply undertaking finding fact degree tribunal based circumstance case possibility tribunal finding fact error court may made different finding fact permissible basis review seeminister immigration multicultural affair v eshetu 1999 197 clr 611 56 conclusion35 reason consider application dismissed certify preceding thirty five 35 numbered paragraph true copy reason judgment herein honourable justicerd nicholson associate dated 15 march 2002counsel applicant mr aj goldfinchsolicitor applicant messrs goldfinch cocounsel respondent m l pricesolicitor respondent australian government solicitordate hearing 12 november 2001date final submission 30 november 2001date judgment 15 march 2002

Scanlan & Donald [2009] FMCAfam 1448 (25 November 2009).txt

scanlan donald 2009 fmcafam 1448 25 november 2009 last updated 10 february 2010federal magistrate court australiascanlan donald 2009 fmcafam 1448family law child final arrangement care child aged 8 6 5 serious issue violence drug abuse child independently represented party aboriginal consideration child cultural background party recently sentenced immediate term imprisonment father child live b mother living l parole mother wish child live l potential effect change child child protected harm best interest family law act 1975 s 60b 60ca 60cc 61daa 65daadavis v davis 2007 famca 1149 2007 38 fam lr 671b r separate representative 1995 flc 92 636in marriage patsalou 1994 18 fam lr 426jg bg 1994 19 fam lr 255applicant mr scanlanrespondent m donaldfile number adc 2540 2008judgment brown fmhearing date 23 24 november 2009date last submission 24 november 2009delivered b broken hilldelivered 25 november 2009representationcounsel applicant mr burtonsolicitors applicant doyle kingston swiftcounsel respondent personcounsel independent child lawyer m du barrysolicitor independent child lawyer legal service commissionorders 1 party equal shared parental responsibility child relationship x born 2001 born 2003 z born 2004 hereinafter referred child 2 party consult one another major long term issue pertaining child required make genuine effort come joint decision matter include limited educational medical issue pertaining child cultural religious issue pertaining child changing child name changing school enrolment child relocation residence child impinge upon existing parenting arrangement child 3 child live father b 4 mother spend time child follows four consecutive week end year new south wale school holiday christmas eve christmas day boxing day fall four week period alternate year commencing christmas period 2009 also providing mother return child father least two day prior commencement school year b one week autumn april winter july spring october new south wale school holiday period provided mother return child father care two day prior date school scheduled recommence child spend four day easter parent alternate year commencing child spending easter period 2010 mother c b three weekend school term mother giving seven 7 day notice father intention visit b occurrence mother spend school friday commencement school following monday child weekend mother day year time agreed party failing agreement b 9 00am saturday 6 00pm following sunday provided mother b e time condition agreed party time time 5 mother telephone communication child tuesday saturday 6 00pm eastern australian time mother contact child father landline number omitted number agreed party father take reasonable step ensure child available take mother call 6 purpose child spending time mother pursuant order 4 hereof party exchange child l post office new south wale location l elsewhere may agreed party 7 mother may communicate child reasonable time writing letter email 8 party keep informed residential address mobile telephone number home work telephone number inform forthwith change detail 9 parent liberty attend child school kindergarten time time take part activity including parent teacher night routinely attended parent 10 mother father encourage facilitate child communication parent way telephone call written correspondence event child request communicate parent either writing telephone electronic form 11 father mother thing necessary forthwith inform serious accident illness child event child requiring hospitalisation parent entitled visit child hospital b permit child attend parent event funeral involving family member close relative one child parent c inform medical practitioner child consult authorise parent able make reasonable inquiry medical practitioner attended child respect matter concerning health child authorise necessary attendance parent extracurricular activity undertaken child 12 father thing necessary authorise principal school attended child forward mother copy child school report school notice pertaining child together order form child school photograph 13 party restrained injunction issue restraining denigrating abusing presence hearing child permitting person abuse denigrate presence hearing child 14 appointment independent child lawyer dismissed 15 outstanding application otherwise dismissed notedthat publication judgment pseudonymscanlan donaldis approved pursuant tos 121 9 g thefamily law act 1975 cth federal magistratescourt australia atbroken hilladc 2540 2008mr scanlanapplicantandms donaldrespondentreasons judgmentintroductionthese reason judgment delivered orally b broken hill party effected could hear directly quickly given complexity matter appropriate reason transcribed grammatical error transcript corrected change made make amenable read proceeding relate final parenting arrangement three child x born 2001 born 2003 z born 2004 party proceeding child parent father mr scanlan mother m donald party began live together b early 2000 early twenty time relationship often filled problem undoubtedly violent unhappy one recently m donald mr scanlan sentenced term immediate imprisonment issue violence drug alcohol use party concerned earlier ordered x z independently represented proceeding child representative robert seymour regarded party proceeding m donald released prison mid june 2009 earlier sentenced 24 month imprisonment non parole period 12 month possession supply 54 gram amphetamine assault m child paternal grandmother m donald sentence began july 2008 complete parole april 2010 release m donald went live l riverina area new south wale l 650 kilometre b m donald mother m life l m donald belief best chance getting life order life l feel happy supported b unhappy memory mr scanlan sentenced imprisonment june 2007 serious assault male associate sentence one 20 month mr scanlan released parole 10 month thereafter subject supervision drug alcohol counselling anger management mr scanlan released prison april 2008 party finally separated mr scanlan sent prison m donald accepts period following father imprisonment good one child frankly admits using amphetamine heavily associating drug user concedes adequately parent child period whilst mother incapacitated m played greater role caring child m donald accepts asked m help parenting however m involvement child led conflict m donald assault m m donald imprisoned took place 9 april 2008 serious assault since april 2008 whilst m donald imprisoned x z lived predominantly father b initially upon release prison mr scanlan lived mother child m home b common ground party relationship lived b child experience living anywhere b recently mr scanlan moved girlfriend m l 11 year old son j m l also life b x z moved father although still see paternal grandmother regularly mr scanlan case well progressed road rehabilitation better placed party parent child well settled care b belief best outcome child continue live b friend relative far x concerned well established school particular asserts child close paternal grandmother would good idea move away immediate influence m donald want child live predominantly l accepts would represent significant change belief accommodate successfully m donald case rest number proposition child primary carer early year nothing replace mother love better parent mr scanlan overcome drug problem large part resulted poor self esteem following abuse violence suffered mr scanlan hand relationship m donald belief mr scanlan remains violent alcoholic person contends represents poor role model child potential threat safety emotional well fear relationship mr scanlan m l described untested one potential become violent later addition m donald asserts mr scanlan mother m negatively disposed towards family incapable supporting x z proper meaningful relationship member immediate family finally asserts better placed mr scanlan expose child important aspect aboriginal background culture mr scanlan share child previously indicated m donald desire return live b previously lived past seven eight year case based assumption child come live l stage future feeling emotionally robust consider moving back b necessary reconnect child continue remain living town mr scanlan m oppose child moving l open share care arrangement m donald return live b stage immediate future however stage feel would disruptive boy move environment familiar particularly think m donald rehabilitation far complete remains emotionally psychologically vulnerable m donald currently receiving medical treatment depression usual case complexity court ordered family report prepared done helen aitkin social worker met family mildura late july 2009 mr aitkin recommended child continue live father b provided able spend much time possible mother given strength child attachment parent m donald returned live b mr aitkin recommends equal time arrangement child care considered however mr aitkin considered child past omission parenting regarded vulnerable child thought needed continuity arrangement care led favour child remaining b father m donald continued live l mr aitkin also thought m close child provided important safety net court easily dispense stage mr aitkin impressed effort rehabilitation party made considered much offer child report mr aitkin said follows child always attended b primary school always lived b established friend extended family relationship also get along teacher school appear settled happy writer reason question mr scanlan parenting capacity also reason question m donald parenting capacity relocating child away extended family school community friend play sport place well connected community effectively friend would significant adjustment mr seymour briefed barrister appear behalf case m du barry m du barry support mr aitkin recommendation m du barry proposes child continue live father b spend four week end year school holiday much shorter school holiday year mother m du barry would also supportive form share care arrangement event m donald return live b however would concerned arrangement unduly open ended mr scanlan accepts recommendation m donald proceeding deigned resolve dispute party m donald due leave b shortly acted behalf proceeding generated considerable emotion concerned particularly circumstance important party child know result court case soon possible reason delivering reason judgment orally shortly following final hearing regrettably somewhat time consuming exercise necessarily due complexity proceeding reason judgment must lengthy apologise burden listening reason judgment place party concerned evidencethe party gave evidence case relied professionally drawn affidavit addition paternal grandmother m maternal grandmother m gave evidence witness mr aitkin time mr scanlan m donald painfully honest witness particularly term setting past failing parent spouse one another mr scanlan credit acknowledged issue deal significant regular binge drinking problem experienced managing anger impulse control admitted verbally abusive m donald mother however denied ever physically assaultedms donald police frequent visitor party home relationship seems case largely called neighbour alarmed concerned noise conflict coming party home mr scanlan admitted level intoxication could always recall behaviour least three apprehended violence order taken behalf m donald mr scanlan m donald asserts lacked sufficient insight time detrimental consequence child mr scanlan behaviour accept follow police respect laying charge mr scanlan able talked course father mother m believe mr scanlan likely underestimated seriousness behaviour asserts lot verbal abuse side lot argument party mutual amphetamine use doubt behaviour violent doubt evidence never physically struck mother would leave home argument could escalate think likely rationalisation part particularly given admission level intoxication time great cannot remember happened m donald accepts issue drug alcohol abuse party relationship addition deny assaulted mr scanlan physically word way release anger mr scanlan hit seems least flavour level rationalisation party relationship one marked many area significant disadvantage left school early qualification neither regular employment significant substance abuse problem accept however party involved parenting three child seems clear time time parenting must severely compromised find party locked together time deeply unhappy dysfunctional mutually abusive relationship point difficult impossible categorise accurately degree either victim protagonist violence whether combination different time using cannabis amphetamine intravenous form time argued consequence behaviour child seems clear capable using strong profanity mother describes father controlling particularly term accusing unfaithful father asserts mother capable extremely provocative conduct personal life m donald concedes called mr scanlan mother fucker violence m donald complains serious one time involved stabbed knife particularly 2001 mr scanlan concedes injury knife m donald time asserts injury accidental provided independent objective evidence support mother allegation juncture party wish portray seriously damaged antisocial personality significant flavour mother case likely victim family violence sex mr scanlan big man evidence unable reach conclusion also great difficulty accepting mr scanlan would always walk away violence party could escalate often victim mother violent provocative behaviour estimation much critical party behaviour conduct however fact remains x z loved wanted child whose need le met party apart time extreme crisis parent relationship older boy attend school regularly well poignantly m donald wished see child merit certificate school clipping collected local paper accept also happy time party relationship child say much loved wanted child 2007 2008 disastrous year party far x z concerned firstly obviously child accommodate incarceration father assault committed serious one evident length sentence received also satisfied victim assault drug user criminal associate father time seems likely party immersed drug culture criminal milieu b time father incarceration party child living property b m reliable witness happened june 2007 onwards evidence july 2007 found mother passed floor result drug intoxication found property b property dirty without adequate food child concerned drug using associate mother frequently premise alerted doc concern thereafter accept performed essential role safety net child x particular would confided seek worried mother behaviour m made sure child fed clothed frequently stayed overnight home m plain speaker currently well disposed towardsms donald however think evidence motivated either malice m donald self interest addition think assessment m donald parenting period described hysterical reaction exaggeration accept evidence credit m donald acknowledges neglected kid period emotionally absent word emotional breakdown wanted numb found numbness drug use september 2007 m donald asked m collect child time m donald complained significantly debt much speed body october 2007 mother imprisoned week presume initially refused bail child came m care doc informed provided assistance respect event regarding private matter m continued concerned whilst mother child exposed drug alcohol use particular exposed discarded syrinx people using bong drug paraphernalia quantity drug particularly marijuana thing regularly present mother home although way assertive person m sophisticated dealing bureaucracy accept felt powerless let authority particularly doc know turn desperation wrote commonwealth ombudsman january 2008 wrote follows child father son gaol moment mother looking due drug dependency drug dealing many illegal activity charged court case pending many activity endangering child health mental state many illegal activity child neglect reported number people police doc nothing eventuated situation continues child extremely stressed unhappy want remain home wit end worry safe child feel helpless many way many reporting police crime stopper doc come nothing accept letter m wrote represents feeling time true representation difficulty child confronted relation m donald m poor period prior mr scanlan release prison particularly learned possibility m donald might leave b x z also case x missed excess three week school first term 2008 view indicative m donald difficulty compromised level parenting child missed significant period school background happened m donald andms 9 april 2008 day mr scanlan release prison also started make inquiry instigating legal proceeding respect arrangement care three child following release 9 april m attended m donald home collect child could spend time father resulted ugly altercation two woman clearly volatile situation inflamed m donald stating intention taking child strong word exchanged two woman yelling regrettably child present dispute escalated m donald punching m number time using racial abuse m person aboriginal background child took refuge m car left premise incident reported police time m donald bail offence since 19 april 2008 m donald subject apprehended violence order preventing approaching m avo includes father period two year april 2008 mother limited interaction three child relation adult concerned reached new low time lacked capacity move confrontation sake child view substance m donald criticism felt child wilfully withheld mr scanlan mother jockeyed advantage suspect child used effect hand child must distressed assault grandmother happened eye neither side behaviour beyond reproach period jockeyed upper hand impasse time led another unfortunate confrontation father mother x school 18 june 2008 mr scanlan summonsed school m donald arrived wished remove child reason entirely clear x present principal office whilst party argued one another father deposed x cry hanging onto father leg whilst making clear want go mother accept x upset police called scene short time later m donald spoke outside made clear going leave school premise police inclined intervene large extent party behaviour bad others doubt m donald felt justified take thing hand mr scanlan made proposal see child felt inclined pay back coin regard behaviour poor parenting following reason firstly created unpleasant scene front child secondly separated two sibling thirdly time knew due face court shortly least possibility would incarcerated behaviour confirms impression mother time emotionally tempestuous propensity put emotional need child event prior m donald appearance criminal court b took l stayed mother clear action demonstrates propensity take thing hand 17 july 2008 m donald received sentence imprisonment 26 july 2008 following granting recovery order simpson fm mr scanlan travelled l remove m three child living predominantly b period since m donald served sentence imprisonment b w prison unable see child whilst w distance involved best able see child per month whilst imprisoned b complains mr scanlan deliberately cruel withholding child whilst b prison seems could certainly proactive taking child see mother whilst mr scanlan prison mother m active ensuring child maintained relationship father m donald attend prison banned attending caught authority trying throw drug perimeter fence obvious reason judgment prior behaviour parent far beyond reproach fairly recently received significant gaol term arising serious criminal behaviour context must make assessment far along path rehabilitation progressed prospect fully rehabilitated little independent objective evidence respect issue obviously reason party likely estimate progress regard lack significant capacity self critical estimation party remain liable lapse rehabilitation mr scanlan remains work force although plan seek labouring work future accept longer us illicit drug continues use alcohol time time categorises alcohol use social accept drink mid strength beer case drink six can single session however note truth universally observed people rather estimate level alcohol consumption context highly concerning mr scanlan recently lost driver licence result apprehended speeding discovered level alcohol system whilst condition provisional licence prohibited driving blood alcohol content whatsoever favour fact alcohol level 05 per cent consumption related social occasion previous evening child present addition also highly significant called police home result dispute m l relating issue pertaining child context concerned opportunity ass m l level insight nature relationship withmr scanlan consequence unable ass chance relationship persisting view relationship mr scanlan m l longstanding one seems likely one subject pressure time time particularly arise j adjusts living x z vice versa regard m hardly regarded dispassionate observer however grandchild concerned cannot regarded completely lacking objectivity accept evidence impressed son progress parent child left home also impressed mr scanlan account progress completion domestic violence course impression ofmr scanlan gained genuine level insight consequence prior behaviour think merely mouthing self serving platitude regard overall find mr scanlan made real progress rehabilitation quieter resolved person taken step change life better largely sake childrenthe court presentation party markedly different although moved quiet tear time mr scanlan calmer reflective parent course advantage represented legally family report independent child lawyer advocating favour m donald none thing advocate case determinedly passionately however seemed emotional person lost composure several occasion case context concerned inability hide obvious emotional distress current arrangement child believe must treat caution account older child strongly indicating desire give life l try concerned may wishful thinking part also highly possible child may trying mollify mother distress telling want hear exists little evidence m donald currently travelling emotionally appeared vulnerable regard respect letter m j m donald drug alcohol case worker exhibit 1 particularly helpful however position m donald alcohol drug counselling since release prison parole also accept currently drug alcohol free great credit however continues depressed hardly surprising given recently released prison separation child concerned context concerned m donald may see self professed goal day day caring child returned panacea difficulty one hand highly insightful m donald accepts return b past connotation associate likely helpful rehabilitation however hand assessment particularly insightful far welfare x z concerned advocate change child living arrangement rehabilitation fostered regard x z vulnerable child particularly result upheaval accommodate 2007 2008 2009 seems highly likely event child move l behaviour challenging say least concerned m donald turned mind little issue perhaps importantly little capacity ass emotional robustness deal challenge overall assessment m donald rehabilitation advanced mr scanlan regard well understand m donald feel prejudiced fact imprisoned second two parent incarcerated mr scanlan opportunity bring parental status quo favour also m donald perception strong element truth large part result exposure mr scanlan antisocial behaviour brought unravelling life may responsibility fair parent rather focus interest x z may best served regard concerned likely placems donald rehabilitation pressure child come live l given circumstance case unimpressed argument placement child m donald aid accelerate rehabilitation proper function child also cautious statement nothing replace mother love although understand statement emanate doubt sincerity m donald deposes currently relationship mr originally b two live together mr currently life north western victoria know mr m donald planning far relationship concerned long term m donald great enthusiast amenity opportunity available l accept well resourced country town likely would offer similar educational opportunity child exist b m home offer suitable accommodation child accept m donald feel gain emotional support mother two sister brother also currently live l following m donald release prison arrangement spend time child problematic initially mr scanlan prepared consider mother spending supervised time child supervision provided m justified position fear mother may decamp child concerned accept level apprehension concerned may also motivated element spite mother however period holiday time arranged child following court order september october school holiday seems progressed without incident great credit m donald said child delivered september happy healthy state know obvious deficit father care child party acknowledge love child concerned much indeed obvious reason m donald remains highly suspicious ofmr scanlan context arrangement child speak mother regularly telephone also proved problematic common phenomenon family high degree conflict suspicion suspect mr scanlan could better term facilitating telephone communication hold card regard however also accept evidence thing easier since landline telephone installed home m donald suspicious nature mr scanlan relationship m l dubious mr scanlan self professed account current level alcohol use share concern however apart suspicion m donald point little concrete evidence support fear given acrimony party unlikely abate doubtful suspicion ever fully assuaged m pleasant witness good influence daughter child life loyal daughter deposing m donald changed lot since left prison result become much caring person good view mr scanlan 2004 accept exposed significant episode family violence atmr scanlan hand drunk raging brandishing large blade almost certainly stolen however m concedes frequent visitor party former family home although long held impression result concedes relationship x z close would wish past occasion order made particularly whilst m donald prison m regular telephone call child arrangement proved problematic recently telephoning child complains lack courtesy level coldness dealing mr scanlan m perception think good enough involved child certainly deep rupture paternal maternal aspect child family bode well side blame neither side prepared much repair party associated must better regard m family come area western new south wale respected aboriginal elder area involved land claim relating area also served board number community organisation m member k people currently traditionally occupy area around darling river paternal side mr scanlan also descendent k people mother european heritage k people association b area area around l understand thing m plan return time future wish finalise native title claim involved m knowledge bush tucker traditional medicine area also know many elder knowledge language spoken mother also interested thing want knowledge passed child case mr scanlan lost touch land tradition m involved caring five grandchild range age 1 12 year word lot thing happening life live m donald life accordingly may case mr senior able provide much support mother future currently agree important x z know involved maternal grandmother cousin family reportmrs aitkin considerable advantage case able see hear child directly see interact parent accordingly able form immediate impression sort child currently faring family report must considered snapshot time taken somewhat artificial stilted circumstance however notwithstanding limitation found mr aitkin report evidence thorough well considered mr aitkin found x z delightful kid travelling well present concerned z intellectual development little behind norm present spoken teacher x school advised two boy well settled school community described number friend school however notwithstanding positive aspect life mr aitkin considered three child vulnerable child considered almost certainly exposed family violence neglect past parenting provided almost certainly compromised past result considered need great deal stability life stability currently provided friend relative community b area always lived particular mr aitkin considered child great attachment m older child confided past provided significant level nurture care particularly whilst mother parenting compromised mr aitkin conceded remained question mark parent rehabilitation although impressed made good progress regard like mr aitkin considered m donald fully considered would likely cope three child would almost certainly missing father friend moved live l probably would experience significant adjustment difficulty circumstance mr aitkin cautioned significant change child life particular considered m positive influence child life would concerned x z moved away immediate form safety net agree assessment overall mr aitkin considered consequence past disrupted care three child risk future emotional problem moved adolescence turn raised implication future overall well satisfactory progress school factor caused cautious advocating major change child concerned regard considered move l matter good facility matter degree love provided m donald would major change accommodate favour mr aitkin concerned nature party relationship one another described conflictual considered relationship also likely place child pressure lead potential emotional trauma also concerned level conflict placed child situation likely feel responsible conveying information care parent assessment m donald likely person difficulty shielding child emotional distress clearly highly distressed prospect child remaining b x aware distress evidence m donald stated spoken older child said keen give life l try mr aitkin concerned significant possibility child would take emotional responsibility mother unhappiness telling wanted hear attempt alleviate unhappiness interview x said happy living father wanted see mother past negative association mother remembering scared left clear want change school described upset stressed parent arguing report mr aitkin wrote follows x want say wanted live attachment parent appears strong also display strong attachment paternal grandmother m x also includes father extended family live b see regular basis part family aged 6 stated immediate preference live mother however also said lot friend school b context case mr aitkin cautious attaching much weight apparent preference concede significant indication part wrote follows able demonstrate family included mother father brother also included paternal grandmother m stated would like live mother would also like spend time father well report move would miss friend would like able live mother father together also report like talking telephone wish mr aitkin satisfied administered psychometric testing likely equally attached parent z reported missing mother liked living however mr aitkin noted z age around five year age implication immature great weight given apparent preference parent observed interact spontaneously appropriately child found loving attentive mr aitkin considered child close bond parent much offer mr aitkin consider child likely significant bond mother likely provided nurture earlier year sex maternal disposition importantly mr aitkin considered child would able maintain attachment mother regularly spending school holiday period mother although obviously optimal outcome recent development caused mr aitkin change initial recommendation august 2009 accept legal principle appliedthe service x z best interest important consideration case family law act 60ca 1 aim principle part thefamily law act 60b deal child emphasise desirability child parent closely involved possible child life term exercise parental responsibility time spend child commensurate need protect child concern physical psychological harm subjected abuse neglect family violence principle also speak entitlement child spend regular period time significant obviously people usually parent child concerned also include relative specifically grandparent 60b 2 b given importance parent closely involved child life starting point parenting order interim final stage consider whether parent concerned equal shared parental responsibility child 61da case party independent child lawyer agree presumption applied future arrangement x z parenting application law presumption applies court required consider firstly whether child concerned live parent equal period time provided outcome likely child best interest reasonable practicable court reject equal time required consider child living parent substantial significant period time outcome subject consideration child best interest practicality family law legislation emphasis importance parent actively involved child life schooling sporting activity recreation well daily routine special occasion long involvement commensurate protecting child concerned harm concept child spending equal period time substantial significant period time parent predicated satisfaction two criterion firstly court must satisfied arrangement likely best interest child concerned secondly arrangement likely reasonably practical put operation case obvious practical reason arising mother location l father location b possible child live parent either equally substantial significant period time unless one move considering child best interest must look long list matter insection 60ccof thefamily law act two category matter must consider primary consideration additional consideration two primary consideration firstly need ensure child concerned meaningful relationship parent secondly need ensure protected harm physical psychological harm may arise exposed kind abuse neglect including family violence additional consideration numerous 60cc 3 application must depend particular circumstance case concerned although primary consideration generally given emphasis arising aim principal family law legislation determining outcome particular case one additional consideration may come fore assessing various consideration arising undersection 60cc 2 3 court required ass degree participation parent concerned life child separation assessment includes much time communication parent child degree involvement long term decision making fulfilment financial obligation towards child separation 60cc 4 4a addition court also required consider parent facilitated involvement aspect child life consideration emphasise benefit child effective co parenting obligation parent facilitate particular section 60cc 4 court directed must regard event occurred post separation respect parent either facilitated failed facilitate involvement spending time communicating child concerned consideration relevant whether parent displayed appropriate attitude responsibility parent section 60cc 3 allegation family violence must closely examined court bearing mind serious consequence exposure family violence may child concerned child learn behaviour parent parent use violence resolve dispute inflict force either child parent appropriate psychological role model child 2 generally recognised family violence prevalent social setting walk life represents grave threat welfare child also well recognised family violence grave social evil many aboriginal community never acceptable man strike abuse woman particularly relationship one another family violence homogeneous quality range character impulsive behaviour arises result stressful situation relationship breakdown instantly regretted symptomatic deliberate arising clear power imbalance party concerned 3 obviously latter behaviour damaging far child concerned fundamental task court ass prospective danger child concerned arising possibility exposure family violence rather punish parent past failure particularly failure arises background difficult circumstance indeed result provocation incitement applying thesection 60ccfactors evidencea primary considerationsthe child concerned case exposed significant endemic family violence parent proponent violence father role self admitted alcoholism likely significant long term consequence exposure child cannot known present none child fearful either parent child parental relationship remains intact viable child obviously love parent major issue whether future one party particularlymr scanlan use violence attempt resolve argument cow humiliate partner relative behaviour would represent damaging role model child age x z particularly move adolescence must also overlook grave threat family violence represents viability indigenous community throughout australia urban rural remote setting issue trouble greatly mr scanlan many question mark hanging significant criminal record violence mother past behaviour indicates vulnerable alcohol abuse recourse violence however impressed current demeanour level insight danger past behaviour noteworthy one two participant complete anger management course invited back talk future participant show capable moderating behaviour also case m donald exposed child family violence particularly assaulted child grandmother direct presence also finding neglected child significant degree whilst grip serious drug addiction mind significant factor x oldest child memory left fend frightened result recounted mr aitkin demonstrates child bearing emotional scar party credit turned life around case one parent clearly present preferred option child mr scanlan m donald previously failed parent marked degree stage circumstance come conclusion mr scanlan past violence behaviour family setting automatically preclude primary residence providing parent child x z love mother remember living miss company want spend time mr aitkin recommends child spend much time possible mother indicates child large degree overcome occurred 2007 2008 seems fairly robust child legitimate understandable reason m donald chosen live l decision implication level meaning child relationship parent obviously distance involved x z perfect relationship mother continue live b l however applicable legislation aspire optimal result every case would unrealistic unduly utopian x z relationship mother live loving one accept mr aitkin evidence remain viable meaningful child spending regular holiday mother b additional considerationsa child view x aged eight torn prospect perceives choose parent would unfair party expect make decision case given age six half far mature prospect strongly influenced mother obvious emotional distress z barely five given lack maturity high level conflict party child view alone cannot determinative factor case b nature child relationship parent significant others child close loving relationship parent importantly also closely bonded paternal grandmother m closely bonded maternal grandmother m bond m strengthened parenting father mother severely compromised accept bond need maintained given child topsy turvy life past year factor strongly militates favour child remaining father care b area c willingness ability party encourage close continual relationship child parent m donald complains farther family unwilling ensure x z proper level relationship family view significant substance complaint long unacceptably high level conflict remains party problematic case regard convinced m donald behave better mr scanlan child placed care love lost either way best outcome may m donald return b live equivocal prospect current feeling unlikely short medium term equal time arrangement likely rest uneasy base result situation parallel parenting use current psychological jargon would ensure measure equality term party interaction child turmoil resulted following party separation party associated behaved perfectly jockeyed one another advantage parent concerned child held metaphorical hostage party utilised degree self help neither party credit likely effect change child circumstance point view mr scanlan independent child lawyer mr aitkin one significant consideration case agree finding x z although thankfully robust child remain emotionally vulnerable past compromised parenting great care need taken radical change arrangement care view mother proposal move child l radical particularly evidence indicates well settled happy b x likely draw sense personal identity security interacting friend relative particularly m b child likely need continuity accept l similar school b excellent sporting facility point x z likely thrive diet familiar need routine example x play cricket stay overnight friend friday game saturday math coaching regularly three boy see grandma weekend live operate comforting familiar matrix routine routine currently well report factor militate court making significant change care arrangement background move child l would represent experiment cannot known well adjust move particularly mother psychologically emotionally fragile view based clear recommendation mr aitkin would unwarranted imprudent experiment far child best interest concerned move b juncture e practical difficulty expense child spending time parent difficult case present obvious easy solution particularly whilst party live far apart remain resourced financially 633 kilometre b l drive around eight hour view long drive difficult party afford cost fuel currently relies relative assist driving solution problem party share driving meet approximately halfway however view distance great practical problem insuperable f capacity party provide child emotional educational need satisfied mr scanlan currently ensuring x attend school regularly grip drug addiction m donald neglectful child education however point view aberration likely vitally interested child education accept doubt moment love parent x z much loved child sense party able meet child emotional need regardless past failing provided course remains drug alcohol free g child maturity sex life style background principle either law psychology pre pubescent child better one parent superiority one particular gender ability provide love nurture young child mother love inherently superior father love vice versa h aboriginalityfrom m donald point view important consideration case family identify strongly indigenous people mr scanlan also point fact m indigenous person argues household likely one conducive child able enjoy aboriginal cultural inheritance heir regard point likely significance mother m respected elder area custodian significant knowledge aboriginal lifestyle culture tradition area principle thefamily law act emphasise child entitlement know enjoy culture theme taken bysection 60d 3 deal specifically aboriginal child child right maintain connection aboriginal culture necessary support encouragement opportunity explore culture develop positive appreciation theme turn given greater emphasis bysection 60cc 3 h andsection 60cc 6 legislation recognises aboriginal child unique need particular difficulty result treatment indigenous people throughout history european occupation australia present time 4 history one largely dispossession discrimination full court family court 5 identified number recurrent theme relevant aboriginal child unique position australian society court one directed bear thing mind making order respect aboriginal child theme taken legislature recent amendment applicable legislation brought thefamily law amendment shared parental responsibility act 2006 theme summarised follows child whose ancestry either wholly partially indigenous regarded black cultural mainstream australia regardless child personal identification particular upbringing australia remains country racism particularly aboriginal people remains prevalent aboriginal child likely exposed racism early age removal aboriginal child family origin euro centric environment often devastating child concerned particularly coupled separation child family origin culture greatest protection aboriginal child corrosive effect racism prejudice part community deal discrimination regularly aboriginal child access strong role model share racial makeup likely provide greatest protection exposure racism either institutionalise otherwise aboriginal child removed family origin often suffer acute identity crisis adolescence particularly bought ignorance culture circumstance deny aboriginality denial cultural identity may result significant loss self esteem last well adult life possibly highly debilitating circumstance individual concerned agree m donald family seem tune issue aboriginal identity mr scanlan family evidence mr scanlan relied fact child would able take part naidoc week national aboriginal islander day observance committee week remain b indicated significant part m donald case tandem m expose child wide variety activity area ensure child enjoy exposure aboriginal culture represented living cultural practice necessary implication regard child taking part naidoc week best inadequate worst tokenistic significant factor however mr scanlan present obviously person aboriginal extraction cannot regarded ethnic stranger child view capable providing adequate aboriginal role model child protect child possibility exposed emotionally corrosive effect racism think said x z living environment currently inimical developing sufficiently strong sense self identity case child placed euro centric environment however also satisfied child best interest opportunity enjoy experience directly aboriginal culture spending time maternal grandmother although optimal arrangement satisfied take place school holiday attitude parent demonstrated responsibility parentin past party demonstrated impaired level insight responsibility parent accept recently seen error way want better future say accepted mr scanlan m donald much offer child future hope able act together parenting child use child potential weapon hurt family violencefamily violence ordersfor reason already expressed find child exposed unacceptably high level family violence estimation act violence isolated endemic gravely troubled aspect case believe m donald concern sufficient warrant change living arrangement child particularly acknowledges previous act serious violence part must lose sight fact convicted assaulting child grandmother currently subject two year apprehended violence order restraining coming contact m whether would preferable make order would least likely lead institution proceeding finality generally preferable child case litigation expensive financial emotional term little encourage easy parenting relationship party concerned addition far child concerned usually desirable arrangement parent stable constant subject threat litigation m donald settled whether return live b doubt decision depends outcome case independent child lawyer mr aitkin see considerable appeal x z parented shared care regime would dependent m donald returning live b juncture well understand personally viable m donald live b preference way hoping pursue rehabilitation medium long term concerned however would child best interest leave open indefinitely possibility shared care regime depends whether mother come back b unspecified time future may year rather month away given antipathy town would lead situation stability child view preferable certain final order made today view viability shared carer regime must examined m donald determines return live b known living arrangement reason think helpful child set form limit shared carer arrangement possibly come place rather think must act assumption thatms donald remain l make order effect conclusionsthis sad difficult case neither party described perfect parent failed parent past however doubting love x z sense child fortunate child loved child made stone immune distress whichms donald exhibited throughout case accept large extent identifies role x z mother close unbearable away however must remain focused child best interest vulnerable child past led disrupted unstable life estimation child need stability continuity arrangement care stability provided father presence friend relative b regular access paternal grandmother child know l doubt would accommodate change involved living l time accommodation likely come price stage development move child l would imprudent experiment take child best interest indeed may catastrophic consequence stage satisfied child well could expected father care b propose change arrangement accept mr aitkin recommendation child need spend much time possible mother must mean spend majority school holiday also important event b m donald opportunity spend child regularly obvious solution tyranny distance case child handover take place halfway l party share driving involved thought closely whether leave open possibility form shared care arrangement child say six month time event m donald determines come back live b think reason provided would unfair concerned may lead rather le tension party best chance shared care arrangement successful party mutually embrace must involve m donald coming willingly back b tenor evidence would come back b sufferance stage think would want come back b avoid however must question left answer appreciate leaf open possibility litigation party reason publish order propose make case outline detail order formally make also return m donald document reference wanted read overnight read reason make order handed party written form set commencement reason judgment concludes proceeding certify preceding two hundred sixty nine 269 paragraph true copy reason judgment brown fmassociate p smithdate 25 november 2010 1 hereafter reference thefamily law act 1975 2 seein marriage patsalou 1994 18 fam lr 426 3 seejg bg 1994 19 fam lr 255at 261 4 seedavis v davis 2007 famca 1149 2007 38 fam lr 671at 689 5 seeb r separate representative 1995 flc 92 636at 82 398

Sangil, Editha [2002] MRTA 6719 (18 November 2002).txt

sangil editha 2002 mrta 6719 18 november 2002 last updated 3 april 2003 2002 mrta 6719catchwords review visa refusal subclass 806 carer certificate meet requirement regulation 1 15aareview applicanteditha sangilvisa applicant abovetribunal migration review tribunalpresiding member suseela durvasulamrt file number n01 00052dept file number n99 301575date decision 18 11 2002at sydneydecision tribunal affirms decision review finding visa applicant entitled grant family residence class ao visa statement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural affair delegate mr editha sangil visa applicant national philippine born 28 may 1936 applied family residence class ao visa 3 may 1999 delegate decision refuse grant visa made 6 december 2000 jurisdiction standing2 mr editha sangil visa applicant lodged application review tribunal 3 january 2001 decision reviewable tribunal application review properly made person standing apply review legislation policy3 themigration act 1958 act various regulation made act principally themigration regulation 1994 regulation provide different class visa criterion grant visa reaching decision tribunal bound act various regulation written direction issued minister section 499 act matter may subject departmental policy found publication theprocedures advice manual 3 pam3 themigration series instruction msis produced department immigration multicultural indigenous affair department tribunal required regard policy apply unless cogent reason departing policy 4 tribunal power affirm vary set aside decision refuse grant visa also power remit application visa department reconsideration remittal may accompanied direction visa applicant meet one criterion visa matter minister delegate consider remaining criterion review tribunal generally limited consideration whether visa applicant meet one essential criterion application remitted decision affirmed basis 5 criterion policy material immediately relevant review legislation item 1115 schedule 1 regulationspart 806of schedule 2 regulationsregulation 1 03and1 15aa definition carer departmental policy procedure advice manual 3 regulation 1 15aa interpretation carerprocedures advice manual 3 schedule 2 family visa 806gazette noticesgn 47 25 november 1998 specification impairment rating purpose paragraph 1 15aa 1 c definition carer themigration regulation 6 tribunal generally regard regulation regulation stood time visa application however subsequent amendment may apply circumstance 7 criterion satisfied time application subclass 806 visa clause 806 213 provides follows 806 213 applicant orphan relative remaining relative claim carer another person settled australian citizen settled australian permanent resident settled eligible new zealand citizen b usually resident australia c nominated applicant grant visa 8 applicant claimed carer time application time decision visa applicant must continue carer subclause 806 221 2 provides 806 221 2 satisfaction applicant clause 806 213 basis applicant claimed carer applicant carer 9 term carer defined inregulation 1 15aa regulation 1 15aacarer 1 applicant visa carer person australian citizen usually resident australia australian permanent resident eligible new zealand citizen resident applicant relative resident b according certificate meet requirement subregulation 2 person resident member family unit resident medical condition ii medical condition causing physical impairment ability person attend practical aspect daily life iii physical impairment impairment table rating specified certificate iv medical condition person continue least 2 year need direct assistance attending practical aspect daily life c rating mentioned subparagraph b iii equal exceeds impairment rating specified gazette notice paragraph person certificate relates resident resident permanent long term need assistance providing direct assistance mentioned subparagraph b iv e assistance cannot reasonably obtained relative resident relative australian citizen australian permanent resident eligible new zealand citizen ii welfare hospital nursing community service australia f applicant willing able provide resident substantial continuing assistance kind needed subparagraph b iv paragraph case requires 2 certificate meet requirement subregulation certificate relation medical assessment carried behalf health service australia signed medical adviser carried b certificate issued health service australia relation review opinion certificate mentioned paragraph carried health service australia accordance procedure 3 minister take opinion certificate meet requirement subregulation 2 matter mentioned paragraph 1 b correct purpose deciding whether applicant satisfies criterion applicant carer 10 gazette notice 47 dated 25 november 1998 relevant gazette notice mentioned paragraph 1 15aa 1 c specifies impairment rating 30 point evidence11 tribunal following document mrt case file n01 00052 folio numbered 1 98departmental n99 301575 folio numbered 1 6012 14 october 1997 visa applicant entered australia subclass 686 visitor long stay visa ceased 14 april 1998 visa applicant subsequently granted long stay visitor visa visa application made 3 may 1999 visa applicant since held bridging visa granted basis application visa subject review 13 visa applicant nominated connection application daughter m rosalie koziuk australian citizen born 8 march 1968 nominator time application visa applicant claimed carer nominator 14 carer visa assessment certificate issued health service australia hsa relation nominator dated 17 may 1999 provided department certificate stated nominator satisfied requirement carer however certificate also stated impairment rating 30 point certain whether medical condition continue least two year 15 delegate refused visa basis nominator impairment rating 30 point found nominator meet definition carer inregulation 1 15aa delegate also considered nominator need assistance could met relative service available australia 16 application review lodged tribunal 3 january 2001 lodging application review visa applicant provided another carer visa assessment certificate issued health service australia hsa relation nominator dated 17 june 2002 certificate stated nominator satisfied requirement carer following reason impairment rating 30 point impairment rating table impairment rating 20 point assigned medical condition causing physical impairment ability attend practical aspect daily life need direct assistance attending practical aspect daily life medical condition medical condition continue least 2 year need direct assistance attending practical aspect daily life 17 tribunal held hearing 13 november 2002 hearing visa applicant stated loved daughter wanted look finding reasons18 time visa application lodged family residence class ao contained number subclass subclass respect claim advanced subclass 806 respect carer ground evidence suggest visa applicant meet key criterion subclass ground 19 tribunal must determine whether visa applicant carer nominator time decision subclause 806 221 2 order visa applicant meet definition carer inregulation 1 15aa health service australia hsa must issued certificate accordance requirement inregulation 1 15aa rating specified certificate must equal exceed impairment rating specified relevant gazette notice 30 point 20 deciding whether visa applicant meet definition carer time decision tribunal must regard recent carer visa assessment certificate provided relation nominator date information tribunal regarding nominator care need tribunal therefore considered earlier carer visa assessment certificate dated 17 may 1999 case certificate state visa applicant impairment rating 30 point direct need assistance least two years21 tribunal therefore consider carer visa assessment certificate hsa dated 17 june 2002 tribunal find certificate issued respect nominator meet requirement ofregulation 1 15aafor following reason certificate state nominator medical condition causing physical intellectual sensory impairment ability attend practical aspect daily life sub paragraph 1 15aa 1 b ii nominator impairment impairment table equal exceed impairment rating specified gazette notice 30 point case 20 point assigned sub paragraph 1 15aa 1 b iii paragraph 1 15aa 1 c certificate state medical condition nominator continue least 2 year need direct assistance attending practical aspect daily life sub paragraph 1 15aa 1 b iv 22 tribunal discretion relation hsa certificate must take opinion certificate correct purpose deciding whether applicant satisfies criterion applicant carer see sub regulation 1 15aa 3 23 hsa certificate meet requirement ofregulation 1 15aa tribunal find visa applicant meet definition carer time decision 24 visa applicant carer nominator time decision satisfy subclause 806 221 2 tribunal satisfied visa applicant meet subclause 806 221 1 evidence tribunal claim made visa applicant meet ground subclass 806 visa tribunal find visa applicant meet clause 806 221 time decision 25 given finding made tribunal alternative affirm decision review visa applicant meet criterion grant visa decision26 tribunal affirms decision review finding visa applicant entitled grant family residence class ao visa

Transport Workers' Union of Australia v Cleanaway Operations Pty Ltd [2023] FWC 748 (29 March 2023).txt

transport worker union australia v cleanaway operation pty ltd 2023 fwc 748 29 march 2023 last updated 29 march 2023 2023 fwc 748fair work commissiondecisionfair work act 2009s 437 protected actiontransport worker union australiavcleanaway operation pty ltd b2023 279 vice president catanzaritisydney 29 march 2023proposed protected action ballot employee cleanaway operation pty ltd 1 application transport worker union australia applicant made unders 437of thefair work act 2009 cth act protected action ballot order relation certain employee cleanaway operation pty ltd respondent 2 28 march 2023 fair work commission advised respondent oppose application 3 circumstance decided determine matter paper without holding hearing 4 basis material including statutory declaration glen barron applicant declared 27 march 2023 setting step taken bargaining respondent genuinely trying reach agreement respondent satisfied notification time relation proposed agreement requirement in 443 1 act met 5 order separately issued inpr760671 vice presidentprinted authority commonwealth government printer pr760672

SZEUK v Minister for Immigration [2004] FMCA 829 (11 November 2004).txt

szeuk v minister immigration 2004 fmca 829 11 november 2004 last updated 28 july 2005federal magistrate court australiaszeuk v minister immigration 2004 fmca 829migration application respondent minister summary dismissal proceeding respondent minister argues doctrine ofres judicata issue estoppel oranshunestoppel apply minister argues proceeding vexatious abuse process whether application dismissed incompetent whether applicant pay cost indemnity basis szbxa v mimia 2004 fca 445applicant szeukrespondent minister immigration multicultural indigenous affairsfile syg 1821 2004delivered 11 november 2004delivered sydneyhearing date 11 november 2004judgment raphael fmrepresentationfor applicant applicant personsolicitors respondent sparke helmoreorders 1 application dismissed incompetent 2 applicant pay respondent cost assessed sum 1 500 pursuant part 21 rule 21 02 2 federal magistrate court rule federal magistratescourt australia atsydneysyg 1821 2004szeukapplicantandminister immigration multicultural indigenous affairsrespondentreasons judgment1 today decision notice objection competency notice motion seeking dismissal application judicial review filed applicant 15 june 2004 notice motion alleges application dismissed ground doctrine ofres judicataand issue estoppel apply complete bar proceeding thatanshunestoppel applies special circumstance justify exercising discretion apply principle proceeding vexatious finally proceeding abuse process 2 find proceeding competent jurisdiction hear lack jurisdiction would flow hearing notice motion szbxa v mimia 2004 fca 445 affidavit bernadette marie rayment dated 20 july 2004 filed herein attached series document establish following 1 15 october 2002 refugee review tribunal handed decision applicant claim protection class xa visa tribunal determined uphold decision delegate grant visa 2 8 november 2002 applicant filed application judicial review federal court dismissed full hearing moore j 13 march 2003 31 march 2003 applicant filed notice appeal 13 august 2003 full court constituted black cj heerey finn jj ordered appeal dismissed on3 september 2003 applicant filed application special leave appeal high court discontinued two day hearing 16 june 2004 3 15 june 2004 applicant filed application decision moore j full bench indicate honour considered decision tribunal privative clause decision privative clause decision subject tosubsection 477 1a themigration act 1958which requires application court unders 39bof thejudiciary act 1903and 483a themigration actmust made within 28 day notification tribunal decision power court extend time clear application court made year decision question binding authority upon decision privative clause decision application must incompetent 4 decided matter need deal matter raised notice motion indeed would appear decision hill j inszbxathat would appropriate dismiss application incompetent order applicant pay respondent cost minister asked cost paid indemnity basis sought order payment sum 3 000 claim payment indemnity basis relies heavily argument made minister notice motion said believe permitted consider applicant must pay respondent cost assessed sum 1 500 pursuant topart 21rule 21 02 2 federal magistrate court rule certify preceding four 4 paragraph true copy reason judgment raphael fmassociate date 16 november 2004

N97_19017 [1997] RRTA 4644 (18 November 1997).txt

n97 19017 1997 rrta 4644 18 november 1997 refugee review tribunaldecision reason decisionrrt reference n97 19017country reference slovak republictribunal member mr luke hardydate decision 18 november 1997place sydneydecision tribunal find applicant refugee affirms decision grant protection visa catchword political opinion decision reviewthis application review decision made delegate minister immigration ethnic affair effect deleted applicant refugee therefore entitled australia protection themigration act1958 act backgroundthe applicant national slovak republic arrived australia deleted 1996 applicant sought refugee status way application former department immigration ethnic affair department immigration multicultural affair dima department 4 october 1996 decision refusing mentioned application made 25 july 1997 applicant notified letter date applied review decision refugee review tribunal rrt tribunal 25 august 1997 tribunal satisfied application review valid tribunal jurisdiction review decision applicant attended hearing tribunal 6 november 1997 hearing conducted assistance interpreter czech english medium applicant represented adviser attend hearing applicant brought forward witness legislationthe criterion grant protection visa set 36 2 act part 866 schedule 2 themigration regulation regulation criterion grant protection visa time decision applicant non citizen australia australia protection obligation refugee convention amended refugee protocol 36 2 act cl 866 221 schedule 2 regulation term refugee convention refugee protocol meanthe 1951 convention relating status refugee amended 1967 protocol henceforward jointly referred convention australia party convention protection obligation people refugee defined therein conventionthe relevant part article 1 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 come within definition applicant must first outside country nationality nationality country former habitual residence applicant must well founded fear persecuted chan yee kin v minister immigration ethnic affair 1989 hca 62 1989 169 clr 379 chan establishes person well founded fear persecution convention genuine fear founded upon real chance persecution convention stipulated reason minister immigration ethnic affair v wu liang or 1996 hca 6 1996 185 clr 259 wu 263 real chance one substantial chanper mason cj 389 one remote insubstantial toohey j 407 far fetched possibility mchugh j 429 question whether applicant face real chance persecution returned country requires tribunal examine objectively fact chanper mchugh j 429 consider matter relation reasonably foreseeable future mok gek bouyvmilgea 1993 fca 545 1993 47 fcr 1 mok 66 approved high court inwuat 279 applicant fear must fear persecuted term persecution defined convention every threat harm interference person right convention reason constitutes persecuted persecution necessarily involves serious punishment penalty significant detriment disadvantage chanper mason cj 388 may le threat life freedom may include appropriate case serious violation human right dawson j 399 400 measure disregard human dignity mchugh j 430 persecution involves selective harassment whether directed person individual member group subject systematic harassment although applicant need victim series act since single act oppression may suffice long person threatened harm harm seen part course systematic conduct directed convention reason person individual member class persecuted purpose convention chanper mchugh j 429 430 see also mason cj 388 persecution implies element attitude part persecute lead infliction harm element motivation infliction harm people persecuted something perceived attributed persecutor ram v miea anor 1995 fca 1333 1995 57 fcr 565 ram 568 ram term reason serf identify motivation infliction persecution objective sought attained reason persecution must found singling one five attribute namely race religion nationality holding political opinion membership particular social group applicant anor v miea anor 1997 142 alr 331 applicant per gummow j 62 word reason require causal nexus actual perceived convention reason well founded fear persecution therefore sufficient person identify convention reason say particular social group also well founded fear persecution applicant per dawson j 12 applicant must unable well founded fear persecution unwilling avail protection country follows whenever protection country nationality available ground based well founded fear refusing person concerned need international protection refugee united nation high commissioner refugee handbook procedure criterion determining refugee status geneva unhcr january 1992 para 100 whether applicant satisfies convention definition assessed upon fact exist decision made miea rrt v mohinder singh unreported full federal court unreported 24 january 1997 singh however circumstance applicant left country remain relevant ordinarily starting point ascertaining applicant present status therefore applicant established time departure satisfied convention definition refugee absence substantial change circumstance point continuation original status chanper dawson j 399 see also mason cj 391 claim evidencethe applicant claim fear persecution slovak republic convention related ground political opinion primary application applicant claimed father former communist party member split party communist regime collapsed 1989 applicant claimed father discouraged joining party applicant persistently pressed party join claimed told group allowed join threatened response claimed supported democracy communist movement must hat time struggling save even threatened kill claimed could accept communist belief supposed happened shortly 1989 applicant 14 year old tribunal asked believe communist party obsessed time 14 year old applicant claimed returned czech republic would killed evidence explain danger managed killed eight year since 1989 evidence rrt applicant changed story considerably said joined communist party soon 1989 matter year paid 10 000 per month spy behalf said spite father admonition said known neighbourhood lived operated member party fact tribunal considers incongruous claim working spy claimed threatened evidently amorphous group opposed communist party feared group tribunal tried see applicant could reconcile disparate claim already appear outlandish became confused tape hearing demonstrates clearly findingsbasically applicant spun tall tale along way forgotten began end match prologue forgotten villain hero although father appears constant account none applicant evidence reliable tribunal satisfied say applicant face real chance convention related persecution slovak republic applicant refugee conclusionhaving considered evidence tribunal determines applicant person australia protection obligation convention therefore applicant satisfy criterion set 36 2 act grant protection visa decisionthe tribunal find applicant refugee affirms decision grant protection visa

THURKLE -v- SMITH [2022] WASC 162 (11 May 2022).txt

thurkle v smith 2022 wasc 162 11 may 2022 last updated 11 may 2022jurisdiction supreme court western australiain chamberscitation thurkle v smith 2022 wasc 162coram master sandersonheard 27 april 2022delivered 11 may 2022published 11 may 2022file civ 1611 2021between dean jeffery thurklefirst plaintiffdean jeffery thurklesecond plaintiffandlois kathleen smithfirst defendantlois kathleen smithsecond defendantpractice procedure application strike statement claim leave repleadlegislation property law act 1969 wa rule supreme court 1971 wa result statement claim struck leave replead refusedcategory brepresentation counsel first plaintiff rj leesecond plaintiff rj leefirst defendant curwood scsecond defendant curwood scsolicitors first plaintiff biddulph turleysecond plaintiff biddulph turleyfirst defendant jebb legalsecond defendant jebb legalcases referred decision master sanderson 1this defendant application strike plaintiff amended statement claim rsoc although chamber summons framed application strike application defendant maintained leave replead granted effect application hybrid strike application coupled defendant application summary judgment 16 r 1 therules supreme court 1971 wa written submission counsel plaintiff conceded rsoc required amendment beyond foreshadowed amendment plaintiff maintained good cause action statement claim struck summary judgment ought entered defendant 2the relevant fact disclosed rsoc follows plaintiff executor estate sandra thurkle deceased deceased plaintiff mother brings action personal capacity executor estate deceased deceased died 25 november 2013 probate granted second named plaintiff 17 april 2014 3between approximately 1984 death deceased deceased de facto relationship robert william gordon mr gordon died 7 march 2021 probate mr gordon granted second named defendant 6 april 2021 4until 4 july 2002 deceased mr gordon registered proprietor joint tenant property described rsoc railway parade property 4 july 2002 mr gordon sole registered proprietor property described rsoc henry st property 5central plaintiff claim par 9 rsoc read follows marking omitted 9 28thmarch 2002sandra thurkleandrobert gordonexecuted will provided inter alia would bequeath respective estate survivor upon death survivor residuary estate would divided 9 1 20 000 toadam gordon 9 2 20 000 child ofadam gordon 9 3 20 000 tobradley thurkle 9 4 balance remaining todean thurkle absolutely without creating trust express wish dean thurkle make adequate provision tania sic thurkle 6the rsoc pleads mr adam gordon adult son mr robert gordon tanya thurkle sister plaintiff daughter deceased m tanya thurkle suffers disability rsoc defines person name par 9 1 9 4 intended beneficiary 7paragraphs 13 13a rsoc plead legal basis plaintiff put claim read follows 13 plaintiff claim said will mutual will made pursuant agreement common understanding intention thatsandra thurkleandrobert gordonwould utilise respective estate lifetime benefit survivor would upon death survivor leave residuary estate including interest railway parade henry st property intended beneficiary 13a alternatively 2002robert gordonstated tosandra thurklethat predecease death estate particular railway parade henry st property le 60 000 would given plaintiff absolutely plaintiff could make adequate provision fortanya thurkle 8it clear par 13 plaintiff basing claim doctrine mutual will alternative claim seems form estoppel case usual element create estoppel representation detrimental reliance representation party acting contrary representation must pleaded face difficult see estoppel could arise doctrine mutual will engaged point sufficient note plaintiff claim put alternative 9paragraphs 14 1 14 2 rsoc plead april 2002 deceased transferred half interest railway parade property mr gordon around date mr gordon transferred half share henry st property deceased pleaded done either pursuant mutual will agreement part matter relevant estoppel 10the made deceased 17 september 2013 revoked 2002 mr gordon november 2020 gifted estate beneficiary include plaintiff member family plaintiff claim mr gordon estate hold railway parade property interest east cannington property trust plaintiff personally alternatively seek declaration mr gordon estate includes railway parade property lois smith either capacity trustee mr gordon estate right hold mr gordon interest railway parade property trust distribute accordance par 13 13a pleading 11the leading authority mutual will high court decision ofbirmingham v renfrew 1937 hca 52 1937 57 clr 666 four element required mutual will two people make agreement disposal property death b execute will pursuant agreement c party agree bound revoke will without notice party party agreement becomes binding first party dy leaving unrevoked 12the deceased revocation 2002 2013 fatal plaintiff claim mr gordon bound 2002 statement made time deal railway parade property way plaintiff claim plea capable maintained rsoc amended defect fundamental incurable 13that leaf estoppel claim representation made mr gordon made deceased way position expressed par 13a par 15 plaintiff plead mr gordon stated deceased plaintiff september november 2013 declined put henry st property plaintiff name time avoid possibility evicted railway parade henry st property would plaintiff gone defendant say accept ordinary reading representation assurance plaintiff personally 14paragraph 17a pleads deceased death mr gordon made representation plaintiff two description first henry st property end going anyway representation plaintiff personally would receive mr gordon share henry st property second pleaded mr gordon would make sure upon death estate would bequeathed intended beneficiary defendant say reference gifting accordance mr gordon 2002 furthermore defendant say paragraph pleaded vague found cause action making submission counsel relied upon decision incrown melbourne ltd v cosmopolitan hotel vic pty ltd 2016 hca 26 french cj kiefel bell jj noted 35 long recognised representation found estoppel must clear inlow v bouverie said language used must precise unambiguous mean word used may open different construction rather must able understood particular sense person word addressed sense may understood provides basis assumption expectation upon person addressed act word must capable misleading reasonable person way person relying estoppel claim misled statement tenant would looked renewal time capable conveying reasonable person tenant would offered lease 15it also clear second limb representation pleaded par 17a representation plaintiff personally rather plaintiff capacity personal representative deceased estate pleaded mr gordon gave assurance would dispose railway parade property inter vivos transaction prior death accordingly basis claim pleaded fact mr gordon estate include railway parade property upon death breach alleged promise par 17a rsoc cannot found claim unconscionable conduct pleaded par 19 rsoc 16paragraph 17b rsoc pleads plaintiff acted reliance matter pleaded par 15 17a refraining seeking rental payment mr gordon henry st property taking step sell henry st property deceased estate held 50 interest invoking provision ofs 126of theproperty law act 1969 wa fact deceased estate never interest railway parade property must mean par 17b 1 refers seeking rental mr gordon relation henry st property owned 50 deceased estate 50 mr gordon tenant common co owner right rental absence agreement ouster neither matter pleaded seeluke v luke 1936 nswstrp 16 1936 36 sr nsw 310 314 asserted rental claim cannot support claim form estoppel henry st 17while true plaintiff take step sell interest deceased estate henry st property holding interest trustee giving claim rent right sale could constitute act detrimental reliance plaintiff personally follows act reliance par 17b could arise respect claim behalf estate deceased put another way act reliance currently pleaded plaintiff personally 18in circumstance rsoc disclose cause action either respect mutual will claim estoppel claim basis struck question whether leave replead ought granted whether effect summary judgment defendant 19in view proper course either strike statement claim refuse leave replead enter summary judgment defendant rsoc present form seem contain material fact support plaintiff claim suggested counsel plaintiff anything could pleaded advance plaintiff claim really matter material fact rearranged simply could found cause action defendant one interest prolong matter accordingly make order bringing matter end party confer form order relation cost party absence agreement provide short written submission within seven day publication reason certify preceding paragraph comprise reason decision supreme court western australia ahassociate master sanderson11 may 2022

Pennington v Jamieson & Anor [2020] QIRC 200 (25 November 2020).txt

pennington v jamieson anor 2020 qirc 200 25 november 2020 last updated 26 november 2020queensland industrial relation commissioncitation pennington v jamieson anor 2020 qirc 200parties pennington adrian applicant vpeta jamieson capacity chair wide bay hospital health service first respondent andwide bay hospital health service second respondent case gp 2020 1proceeding application existing proceedingsdelivered 25 november 2020member heard knight icon papersorder application dismissed catchword industrial law referral question law opinion court whether commission refer jurisdictional question opinion industrial court legislation case hospital health board act 2011industrial relation act 2016brisbane city council v construction forestry mining energy industrial union employee queensland 2017 qirc 31brisbane city council v queensland service industrial union employee 2020 qirc 071dexcam australia pty ltd v deputy commissioner taxation 1999 fca 1784pereira v state queensland department health queensland ambulance service 2019 qirc 136queensland nurse union employee v corporation diocesan synod north queensland 2005 qirc 81 2005 179 qgig 255queensland nurse midwife union employee v west moreton hospital health service 2020 qirc 49somasundaram v department education training north eastern victoria region 2015 fwc 4461united firefighter union australia union employee queensland v queensland auxiliary firefighter association inc 2017 qirc 102reasons decision 1 theindustrial relation act 2016 theact provides discretionary power commission refer question law industrial court 1 2 mr adrian pennington applicant seek referral question posed following term 2 whether termination employment health executive excluded matter within meaning ofs 74 4 thehospital health board act 2011 whether excluded mater matter affecting relating excluded matter may subject application queensland industrial relation commission pursuant tos 309of theactbecause 75 1 thehospital health board act 2011 ands 75 3 thehospital health board act 2011 whether dismissal health executive capable constituting adverse action within meaning ofs 282of thehospital health board act 2011because authorised bys 74 4 ands 74 5 thehospital health board act 2011 referral question law 3 section 487of theactprovides 1 commission may stage proceeding term considers appropriate refer writing question law relevant proceeding court opinion 2 court may hear decide question law b remit question law opinion commission 3 commission must give effect court opinion submission 4 three primary argument proffered appellant support referral question industrial court concern nature question public interest authoritative determination respect question relevant significant group employee within queensland health andthe desirability eliminating cost delay involved appeal determination question 5 respondent oppose application collectively arguing applicant identifies proper basis application referral jurisdictional question industrial court would delay resolution resolution proceeding whole jurisdictional question decision significant consequence commonly dealt commission neither proper basis referral event industrial court determine question pure question law would remitted back commission andthe question framed would even determined fully dispose jurisdictional dispute party considerationconsequences decision 6 applicant argues given 129 health executive employed thehospital health board act 2011in respect outcome relevant public interest question determined authoritatively 7 accept health executive part distinct cohort spread across health service presently operating throughout state queensland agree respondent comparatively represent tiny sliver ten thousand person employed entity thehospital health board act 2011 8 case construction interpretation legislative instrument one regular function industrial commissioner 3 decision follow time result significant far reaching consequence large number employee across within various industry sector fact third jurisdictional question posed applicant already considered without referral industrial court 4 9 remaining question novel sense previously arisen determination novelty compelling reason referral 5 tend agree full bench held uncommon commission whether constituted single member full bench determine jurisdictional question uncommon commission make decision significant sometimes onerous consequence nevertheless two factor basis view consider matter appropriate one refer industrial court 6 cost 10 jurisdictional argument succeed applicant contends appeal respondent unescapable therefore resulting cost respondent concede expectation 11 even case intimation one party intention appeal generally sufficient warrant referral regard respectfully adopt reasoning heerey j indexcam australia pty ltd v deputy commissioner taxation commissioner indicated decision first instance adverse would probably appeal event applicant would severely disadvantaged term resource sympathise position think would contrary spirt ofs 25 6 decision reference full court effect transferred one party unilateral declaration intent appeal effectively bypass trial first instance therefore decline refer matter full court 7 12 proposition referral minimise applicant cost relies upon assumption respondent guaranteed appeal remains speculation certainly insensitive cost implication applicant appeal case referral industrial court foreclose appeal decision court appeal 8 delay 13 another argument pressed applicant referral allow matter dealt expeditiously without delay 14 inclined think opposite party already filed written submission oral argument listed 27 november 2020 merely day away listing place month 15 moreover unknown member industrial court would available hear decide jurisdictional question referred president instance scheduled sit week commencing 30 november 2020 1 february 2021 16 full bench previously held respectfully adopt reasoning ross j exercise discretion refer matter industrial court commission possible avoid undue delay determining mater 9 17 likewise martin j wrote bcc also argues referral full bench potential save time obviate possibility appeal referral made obviously avenue appeal lost still though possibility appeal industrial court event elimination level appeal attractive argument favour referral may though confine time needed matter finalised 10 conclusion 18 blade c opined referral cannot whim must benefit readily apparent otherwise avoiding responsibility adjudicate clearly controversial matter 11 19 balance persuaded exist sufficient discretionary consideration favouring referral jurisdictional question industrial court 20 expeditious course think allow jurisdictional hearing proceed 27 november 2020 21 unnecessary considering foregoing reason consider whether question referral properly framed 1 487 2 amended application existing proceeding filed 23 november 2020 3 brisbane city council v queensland service industrial union employee 2020 qirc 071 6 martin j 4 pereira v state queensland department health queensland ambulance service 2019 qirc 136 queensland nurse midwife union employee v west moreton hospital health service 2020 qirc 49 5 brisbane city council v construction forestry mining energy industrial union employee queensland 2017 qirc 31 4 15 6 united firefighter union australia union employee queensland v queensland auxiliary firefighter association inc 2017 qirc 102 18 united firefighter 7 1999 fca 1784 14 8 industrial relation act 2016s 554 9 united firefighter n 4 13 citing approvalsomasundaram v department education training north eastern victoria region 2015 fwc 4461 12 ross j 10 brisbane city council v construction forestry mining energy industrial union employee queensland 2017 qirc 31 3 10 11 queensland nurse union employee v corporation diocesan synod north queensland 2005 qirc 81 2005 179 qgig 255

KNOX & HARGRAVE & ANOR v FULLSTON [2009] SADC 4 (24 July 2008).txt

knox hargrave anor v fullston 2009 sadc 4 24 july 2008 last updated 16 january 2009district court south australia civil disclaimer every effort made comply suppression order statutory provision prohibiting publication may apply judgment onus remains person using material judgment ensure intended use material breach order provision enquiry may directed registry court generated knox hargrave anor v fullston 2009 sadc 4judgment honour judge barrett24 july 2008professions trade lawyer solicitor client retainersolicitors reviewed security provided client pursuant retainer determined insufficient proceed act without payment work already done whether solicitor entitled cease act held review bona fide reasonable solicitor entitled cease acting tort negligence essential action negligencesolicitor advise client plead insolvency business partnership dispute instruction suggest business insolvent one valuer suggested held solicitor negligent circumstance profession trade lawyer right privilegessolicitor advise client plead insolvency partnership dispute whether solicitor immune suit advice absence advice pleading intimately connected conduct trial held immunity applied orta ekenaike v victoria legal aid 2005 hca 12 considered procedure judgment orderssolicitor advise client plead insolvency partnership dispute client unrepresented trial settled case trial whether consent judgment final immune collateral attack seeking recover damage alleged negligence solicitor held consent judgment immune collateral attack simington v australian prudential regulation authority 2006 frafc 118 cirillo v consolidated press property pty ltd 2007 fca 60 giannarelli v wraith 1988 hca 52 1988 165 clr 543 keefe v mark 1989 16 nswlr 713 donnellan v watson 1990 21 nswlr 335 considered knox hargrave anor v fullston 2009 sadc 4introductionthe plaintiff seek recover legal fee defendant written retainer first plaintiff acted defendant three matter approximately 14 month june 2000 31 august 2001 31 august 2001 first plaintiff merged practice legal firm cosoff cudmore partner become firm comprising second plaintiff second plaintiff acted defendant three matter later fourth matter approximately 2 half month 1 september december 2001 december 2001 ceased acting longer satisfied security provided legal fee except work early relationship first plaintiff paid defendant fee incurred pursuant retainer acted without requiring payment long regarded security put adequate second plaintiff acted pursuant retainer altogether two plaintiff claim fee disbursement interest 12 january 2005 amounting 158 016 81 agreed position plaintiff defendant process novation second plaintiff assumed obligation benefit first plaintiff upon merger defendant dispute liability principally basis plaintiff breached retainer wrongly ceasing act circumstance entitled cease act reason given namely security put defendant inadequate defendant asserts security adequate plaintiff make bona fide assessment security ceased act several question raised broad heading thefirstissuein trial theplaintiffs entitled cease acting defendant say even plaintiff entitled cease acting sue fee entitled set amount may liable pay say plaintiff negligent principally matter pleading partnership dispute thesecondissuein trial defendant entitled set several question arising two issue deal seem conveniently arise course hearing agreed question quantum loss deferred liability determined background first issuethe defendant potato grower processor property adelaide hill mount barker charleston south east state planned still plan sub divide part land charleston building allotment 1996 worked partnership de facto wife joycelyn joy fennell died november 1996 year involved variety litigation following death involved several dispute subject proceeding consulted first plaintiff three first dispute m fennell two daughter partnership asset partnership dispute also dispute daughter interest house lived m fennell left house daughter making testamentary claim greater share asset including house property dispute tied extent partnership dispute testamentary dispute relevance trial insofar made defendant interest house contingent upon daughter claim house offered house security messrs johnston withers solicitor representing defendant partnership dispute ceased act dispute fee johnston withers claim second dispute wanted first plaintiff take messrs von doussas consulted matter defendant content von doussas continue acting another legal dispute suing individual damage personal injury resulting alleged assault personal injury claim von doussas continued act matter litigation assumes relevance action possible source fund defendant prosecution litigation third matter first plaintiff asked act defendant aclaw matter defendant dispute potato farmer mr schroeder first plaintiff represented supreme court appeal defendant successful cost finalised time merger two firm 31 august 2001 question cost resolved quickly possible messrs cosoff cudmore partner first plaintiff proposing merge acted side matter fourth final matter defendant sought representation second plaintiff dispute another legal practitioner mr bennett mr bennett claiming fee defendant defendant first sought advice first plaintiff yet taken proceeding take proceeding recover legal fee merger two legal firm defendant think mr bennett would sue fee said error way handled matter fact mr bennett later sue fee second plaintiff acted defendant matter defendant first consulted mr schroeder first plaintiff june 2000 partnership dispute underway johnston withers sued fee aclaw matter still finalised mr schroeder defendant met discussed defendant various case account given mr schroeder felt prima facie merit action keen help prosecute defend defendant said money pay legal fee incurred persuaded mr schroeder could offer sufficient security legal cost money tied account permission court could access swincer money inherited house m fennell factory rural land mount barker could sell personal injury assault claim might realise 200 000 300 000 promising proposed subdivision land charleston although defendant needed cash advance subdivision project could soon underway would realise profit excess 1 000 000 proffered security contingent overall consideration matter appeared mr schroeder partner sufficient undertake act defendant three current case ie partnership dispute johnston withers claim aclaw matter personal injury claim would remain von doussas dispute solicitor mr bennett yet become litigious plaintiff sue fee three matter begun first plaintiff addition second plaintiff sue attendance relation bennett matter letter dated 26 june 2000 tb volume 2 page 2106 2108 first plaintiff set term retainer pursuant willing act defendant defendant signed last page letter 27 june convenient recite retainer full knox hargravelawyersour ref b35 rrs 26 june 2000mr peter fullston7 cedar grovemount barker south australia 5251dear petervarious litigation matterswe confirm propose instruct u act relation various litigation matter pleased act upon following term charge based usual hourly charge solicitor engaged upon matter solicitor currently conduct matter rick schroeder assisted danny damin hourly rate solicitor presently 220 00 plus 10 gst others solicitor legal staff may work matter time time consider necessary appropriate efficient regard nature extent task hand urgency usual rate solicitor may engaged upon matter available upon request rate depend upon whether solicitor partner associate employed solicitor charge calculated one tenth hourly rate six minute time unit part thereof photocopy charged 50 plus 10 gst per page facsimile sent 1 00 plus 10 gst per page disbursement charged cost must reimburse u gst paid u disbursement incurred matter charge paragraph 1 4 fixed 30 june 2001 charge reviewed 1stjuly year thereafter may increased approximately line inflation upon request advised increased rate subject paragraph 11 letter render interim account interval determined u normally render account approximately monthly interval provided given security cost satisfied extent security required immediate payment interest payable amount outstanding rate 10 per annum rate shall adjusted time time line variation indicator lending rate australia new zealand banking group limited agreed give u security letter signed agreement provision legal service referred security meeting mr damin 16 june 2000 provided copy security taken mortgage interest factory mount barker land charleston advised seek independent legal advice content effect security took copy documentation also advised seek independent legal advice content effect agreement contained letter fund become available source agree immediately apply fund payment outstanding invoice receive money behalf hold money trust agree liberty apply money payment outstanding invoice continue act provided consider security given adequate outstanding charge disbursement case may cease act rather sending account may send summary charge wish dispute charge notify u within 14 day accept charge sign summary return u nothing deemed agree charge interest referred accrues charge listed summary sent date summary basis charging different higher scale cost set various court litigation matter possible may obtain order another party pay cost order generally enable recover cost applicable court scale work essential litigation desirable therefore recover cost full party obliged pay charge regardless outcome litigation one client liability charge joint several undertake use reasonable care giving advice taking action behalf undertake use reasonable care acting upon advice protecting interest agreement shall also apply future matter instruct u act unless otherwise agreed consciously become involved conflict interest legal nature occur may terminate engagement matter matter term agreement reply correspondence return phone call respond reasonably request instruction otherwise comply term agreement work u way may terminate agreement circumstance agree file notice acting person current court proceeding acting carefully read letter please sign enclosed duplicate return u reiterate free obtain independent advice upon letter wish please keep original letter record term engagement faithfully signed rick schroederpartner contact detail excluded enclosure duplicate letteri hereby instruct knox hargrave act agree term engagement datedthe 27 6 00 inserted day 2000 signed peter michael fullstonthe first plaintiff proceeded act defendant three matter present purpose pas important historical matter revisited order direct attention see first issue case require resolution mr schroeder working expectation defendant obtained access swincer monies would thereafter able pay legal fee incurred t106 turned happen disbursal swincer monies march 2001 defendant received 180 000 tb volume 2 page 3 359 sum paid 60 000 first plaintiff invoice legal work done three case june 2000 time defendant spent rest money none rest money put first plaintiff trust account cover ongoing work retainer require defendant mr schroeder ask deposit monies trust account anticipated fee march 2001 merger firm 31 august 2001 mr schroeder discussion defendant realising asset providing security anticipated cost defendant said 20 march factory mount barker sold 250 000 sale fell subdivision project charleston begun substantial legal work done partnership dispute discussion mr bennett revealed mr schroeder mr bennett prepared reduce claim outstanding fee small amount still seeking defendant approximately 45 000 mr schroeder previously realised defendant exposure front substantial advised defendant settle johnston withers claim even unfavourable term reduce exposure defendant accept advice aclaw matter nearing resolution cost awarded defendant favour would go johnston withers barrister briefed behalf defer detailing state security discussion sufficiency mr schroeder position time merger security looking le secure light progress litigation ongoing discussion defendant possibility reducing exposure litigation realising asset increasing firm security pinning hope defendant assurance prospective income subdivision sale mr schroeder became partner amalgamated firm agreement partner firm would review file special arrangement place fee deferral incoming partner cosoff cudmore partner mr tony hurren partner conducting review defendant file think fair assessment evidence topic mr hurren sceptical adequacy security defendant assurance mr schroeder mr schroeder said good working relationship defendant confident would pay bill soon able t315 letter dated 24 september 2001 tb volume 2 page 4101 4102 mr schroeder wrote defendant letter fact drafted mr hurren term letter appeared suggest solicitor client relationship first plaintiff defendant ceased new solicitor client relationship second plaintiff would entered meantime second plaintiff would act interim basis two relevant paragraph letter read follows first read cck different entity knox hargrave new partner would delighted instruct cck relation matter given somewhat unusual circumstance exist first wish become better acquainted 1 litigation supreme district court andyour financial circumstance nature security taken knox hargraveand may wish see variation current arrangement cck commences acting second read cck happy act interim basis relation three matter pending meeting pending agreement term particularly security cck would prepared act defendant met mr schroeder mr hurren 27 september discus matter raised letter meeting mr hurren questioned defendant increasing firm security seems premise amalgamated firm bound first plaintiff retainer new firm would continue act interim basis question adequacy security resolved meeting six week meeting ongoing discussion mr schroeder defendant security mr schroeder continued work defendant matter letter 8 november 2001 mr hurren articulated term amalgamated firm would continue act defendant letter term suggest second plaintiff reviewing adequacy security pursuant clause 10 first plaintiff retainer letter required defendant confirm 14 november agreed financial term engagement put forward enclosed separate letter date combination letter tended reinforce view second plaintiff seeking negotiate new term engagement rather undertaking review adequacy asset contemplated first plaintiff retainer mr hurren letter recites reason new financial arrangement proposed point several matter said defendant unwilling take action vary amount bank guarantee required put paragraph 3 2 4 letter tb volume 2 page 4286 4287 anticipated cost work conclude johnston withers claim partnership claim would order 200 000 addition letter sought payment cash plaintiff would proceed memo dated 9 november tb volume 2 page 4298 mr schroeder sought persuade mr hurren cooperation defendant including sale chattel placing monies trust firm could safely continue acting defendant mr schroeder memo appear review adequacy security contemplated retainer reciting proposed adjustment defendant finance mr schroeder wrote would subject existing term would continue acting consider security position adequate per agreement knox hargrave would indication consider adequate noted paragraph 2 memo proposes defendant borrow 50 000 put trust account second defendant five alternative additional step defendant take end february 2002 word proposal payment 50 000 cash take care existing liability step taken provide security mid term ongoing work refer detail mr schroeder memo demonstrate contrary submission put behalf defendant 1 mr schroeder change mind adequacy overall security appears defendant protested asked provide cash ongoing work mr schroeder thought made protest sometime november december 2001 t188 protested writing way letter dated 3 december 2001 tb volume 2 page 4498 letter gave mr schroeder ultimatum mr schroeder indicate 5 pm 3 december second plaintiff willing continue acting without paid cash started receiving profit charleston sub division said earthwork sub division needed carried next 14 day implication letter firm desisted requiring cash ongoing work could defendant proceed sub division work profit represented best prospect defendant paying legal fee day letter 4 december 2001 meeting messrs cosoff hurren schroeder defendant letter 3 december discussed meeting gave rise letter sent second plaintiff defendant dated 4 december 2001 tb volume 2 page 4508 convenient set letter full although letter signed mr hurren mr schroeder said agreed date security offered defendant inadequate t193 ref ach 1747 cosoff cudmore knoxby facsimile4 december 2001mr peter fullston7 cedar grovemount barker sa 5251dear mr fullstonpartnership dispute matterswe refer facsimile transmission yesterday u also refer letter dated 8 november 2001 letter reminded firm cck accepted instruction act generally pending decision u acting interim basis 240 per hour plus gst therefore understand statement wrong company change agreement payment account term agreed knox hargrave refer paragraph 6 9 10 letter dated 26 june 2000 knox hargrave security offered inadequate particularly given request cck also act bennett proceeding source fund appear unwilling apply towards legal cost letter also pointed future cost 200 000 likely incurred acting therefore required sign term engagement letter agree provide various fund u would act generally unfortunately agree requirement put counter proposal understand unwilling put proposal u orderly payment fee understand able borrow least 30 000 short term partnership action next court tuesday 11 december 2001 received acceptable proposal form 10 00 thursday 6 december 2001 involving least payment use christmas 30 000 schedule additional monthly follow payment take step immediately cease acting inform justice lander fact faithfullycosoff cudmore knoxtony hurren excluding contact detail cc peter michelmoreon 7 december 2001 mr hurren wrote defendant recapitulating counter proposal put defendant firm however mr hurren reiterated requirement firm stated letter 4 december accompanying term engagement letter firm required henceforth account would rendered firm month would paid within 14 day rendered thing came head 10 december 2001 day defendant told mr schroeder want second plaintiff act anymore although seems ongoing discussion defendant mr schroeder resuming professional relationship defendant could make appropriate financial arrangement never made work done time mr schroeder done pro bono basis significantly mr schroeder assisted unrepresented defendant appeared plaintiff supreme court trial partnership dispute late 2002 essentially professional relationship second plaintiff defendant ceased defendant sign plaintiff term engagement document dated 7 december time professional relationship ceased first plaintiff security defendant although may second plaintiff equitable interest security held first plaintiff first plaintiff unregistered second mortgage property mount barker charleston charge bank guarantee provided partnership dispute johnston withers claim although second line bank also assignment personal injury claim subject von doussa able recover cost first one background topic first issue defendant first consulted mr schroeder time filing defence johnston withers claim imminent defendant knew told mr schroeder stage mr schroeder undertaken act defendant able confer partner formulate condition would willing act without fee paid cost incurred knowing time within file defence imminent mr schroeder undertook write plaintiff solicitor asking time file defence word ask plaintiff desist signing judgment defendant position file defence mr schroeder wrote promised plaintiff solicitor grant time signed judgment mr schroeder johnston withers file first plaintiff agree act defendant applied successfully judgment set aside condition defendant provide security amount 105 000 bank provided security way bank charge defendant complains first plaintiff file defence immediately despite agreement act despite mr schroeder file argument go file holding defence failure disentitles take charge account assessing adequacy defendant security late 2001 account background suffice consider first issue trial namely whether second plaintiff entitled cease act defendant first issue plaintiff entitled cease acting defendant first necessary clarify position two plaintiff relation plaintiff amended pleading acknowledge second plaintiff bound retainer entered first plaintiff defendant maintains first plaintiff breached retainer defendant merging cosoff cudmore partner form second plaintiff mr manetta plaintiff maintained position address view position sustainable mr abbott plaintiff submits mr manetta appeared concede another part address also paragraph 5 outline closing really form novation time merger firm second plaintiff stand place first plaintiff far right obligation towards defendant concerned certainly mr hurren first reviewed defendant file purpose considering adequacy financial arrangement took view new firm bound agreement old firm mr manetta submitted attitude taken initially changed later illustrates lack bona fides part reviewing adequacy security offered put defendant mr hurren correspondence defendant evidence trial make clear wanted defendant enter new agreement new term relating payment professional fee evidence mr hurren made secret fact time merger dissatisfied security offered defendant time went became frustrated saw defendant inability make progress sub division unwillingness take step improve overall value security defendant refused instruct second plaintiff seek vary term court order requiring provide security partnership action supreme court even eventually mr hurren agreed make application without fee defendant resisted settling johnston withers claim party far apart thus nothing reduce exposure litigation refused sell chattel slate said worth 20 000 mr hurren view strategic financial importance defendant slate necessary carry business defendant would offer charge chattel including slate offer defendant would make way security highly contingent house subject testamentary claim m fennell daughter charge actually taken plaintiff personal injury claim contingent success mr manetta submitted accept mr hurren evidence trial time ceased acting defendant december 2001 reviewed bona fide defendant security dissatisfied adequacy represents instead mr manetta submitted convenient expression long term view first plaintiff agreement act defendant without requiring payment fee imprudent really looking way get saw ill advised agreement mr hurren belief second plaintiff bound retainer show along proposing new agreement wanted new favourable agreement one first plaintiff concluded belatedly recast motive bona fide review adequacy security permitted retainer view submission borne evidence might reasonable infer mr hurren regarded agreement first plaintiff act without immediate payment original security place imprudent mr hurren certainly unwilling expose new firm risk posed continuing act defendant existing security however none inconsistent bona fide review adequacy security view nothing could clearer mr hurren evidence late 2001 genuinely regarded security inadequate protect firm unacceptable financial risk continued act way acting defendant available much information provided principally mr schroeder defendant finance spoken defendant conference three present closely view security explored trial clearer became inadequate saw reason held view several question answered juncture 1 adequacy security determined reference invoice already rendered work done may regard estimate future cost word may plaintiff security front 2 permissible seek different security accepted first plaintiff adequate time retainer 3 review security reasonable well bona fide 4 review reasonable reasonable mr abbott plaintiff conceded first question must answered favour defendant concedes correctness mr manetta submission clause 10 retainer required plaintiff continue act provided satisfied security adequate outstanding charge disbursement t1365 proper concession outstanding fee disbursement november 2001 approximately 76 000 40 000 due first plaintiff work done merger 36 000 second plaintiff work done merger plaintiff therefore entitled regard anticipated cost exposure 200 000 letter defendant 4 december 2001 mr hurren referred explicitly cost exposure tb volume 2 page 4508 preceding paragraph letter referred paragraph 6 9 10 retainer said security defendant offered inadequate earlier correspondence made clear inadequacy current view inadequate time letter go require defendant sign new term engagement sent earlier view letter must read meaning two reason second plaintiff requiring defendant sign new term engagement first relates inadequacy security second relates future cost exposure conclude subsequent ceasing act probably based reason plaintiff entitled subject two question referred rely upon first reason entitled rely second view two reason severable plaintiff entitled cease acting first ground matter entitled rely second second question relates change security sought first plaintiff willing act way security unregistered second mortgage factory mount barker land charleston charge bank guarantee assignment personal injury claim proceeds mr manetta submitted second plaintiff entitled become dissatisfied security unless put inherent change value t1289 allowed also might take account sharp increase likelihood defendant losing court case bank guarantee secured plaintiff charge second line bank take submission mean unless security clearly substantially diminished value second plaintiff entitled regard inadequate entitled seek security mr manetta drew analogy security share submitted plaintiff entitled seek change security say share real estate simply foresaw stock market crash ultimately would wait see crash occurred obligation fiduciary permit regret earlier decision adequacy security seek make prudent decision t1289 1291 put think mr manetta submission well founded circumstance changed second plaintiff would bound decision taken first plaintiff however submission overlook really happened june 2000 late 2001 circumstance changed first security originally taken time outstanding cost might work progress none billed november 2001 76 000 outstanding 2000 three action first plaintiff acting november 2001 mr bennett sued fee 45 000 extent fee surprise mr schroeder t126 even mr schroeder thought gave rise possibility defendant bankruptcy t126 eventuality would likelihood put end proposed sub division swincer money come gone first plaintiff fee time paid accordance retainer although defendant obliged put aside money received outstanding fee mr schroeder hope money became available defendant would put aside future legal expense event first plaintiff never security money one defendant asset mr schroeder mind accepted adequacy security proffered one bank guarantee first plaintiff charge second bank secured sum 475 000 partnership dispute defendant refused instruct second plaintiff apply court reduce sum secured second plaintiff could improve security defendant refused even second plaintiff offered make application without charge defendant refused also sell chattel improve security refused sell slate light two refusal mr hurren took view defendant unreasonable informed view value contingent security subject prior claim mortgage second mortgage bank prior claim two bank charge solicitor acting defendant personal injury claim would take fee first talk defendant selling rural land charleston factory mount barker neither sold possible agreement sell fallen asset mr schroeder laid store 2000 imminent sub division land charleston defendant said along sale imminent would extremely lucrative imminent june 2000 still imminent november 2001 nothing happened advance project view mr manetta submission untenable fails appreciate meant security retainer agreement fails take account change occurred adequacy security context retainer must taken mean evaluation fee secured given time likely value asset securing fee taken account risk posed contingent nature book value asset would consideration evaluation assessment must surely made prospect realising security realising within reasonable time example plaintiff thought late 2001 sub division might take place sometime late 2007 turned case see reason regard security inadequate see reason seek different sort security remembered second plaintiff legal entitlement security held first plaintiff may would equitable interest security recoverable presumably first plaintiff second plaintiff sought letter 8 november 2001 cash instalment sought payment 10 000 14 november 36 000 component outstanding fee 7 december agreement paying 20 000 per month january 2002 way total outstanding fee 76 000 would paid february 2002 although reasonably expected accelerated incurring fee would occur hearing johnston withers case expected november december 2001 letter identified mr hurren considered reasonable step defendant could take meet firm requirement see paragraph 13 15 16 letter proposal fell short requiring defendant henceforth pay account rendered however three security left protect much smaller risk cash payment made sought security would protect plaintiff outstanding amount 66 000 end november 2001 30 000 end december 10 000 end january must added case fee incurred month ongoing legal work one sense proposal second plaintiff could seen change security argued mr manetta another sense could seen diminishing cash payment protective load security bear event see reason security change form proposed nothing retainer suggest permissible think case changing nature security get imprudent agreement rather changed financial proposal take account changed circumstance third question whether review second plaintiff reasonable bona fide mr manetta submitted second plaintiff fiduciary obligation required reasonableness contra proferentem rule contract must construed favour party draw least ambiguity line bona fide review reasonable one might fine one accept line however reason give think answer question fourth question whether circumstance second plaintiff review reasonable mr manetta submits proper enquiry made mr hurren value property supporting two mortgage likewise proper enquiry merit two action giving rise bank charge true second plaintiff cause valuation made two property mr hurren information provided defendant value property liability creditor standing ahead plaintiff mr hurren nevertheless came conclusion defendant evident unreasonableness failing take step realise asset minimise financial litigation risk lessened chance recovering monies security indeed feared judgment debt new bennett litigation might send defendant bankrupt monies recovered plaintiff period 6 month bankruptcy might regarded preference view plaintiff entitled look beyond might appear book value defendant asset entitled look prospect recovering monies themso far litigation concern second plaintiff every reason wary recovering anything bank charge guaranteeing sum money johnston withers claim partnership dispute former case defendant offer settle substantial clear admitted substantial liability understand proceeding still concluded say topic attempt mr schroeder narrow area disagreement partnership dispute unsuccessful fact prospective length complexity partnership dispute increasing mr schroeder anticipated first consulted defendant view second plaintiff entitled take matter account assessing adequacy security perhaps decisive factor assessing reasonableness second plaintiff review mr schroeder agreed evidence attendance note internal memo demonstrate mr schroeder optimistic adequacy security got along well defendant trusted believed various cause keen vindicate legal position mr schroeder accepted defendant assurance prospect realising sale property put sale believed imminence return much vaunted sub division yet november 2001 even forced concede step proposed mr hurren taken reluctantly come round realising existing security inadequate memo mr hurren 9 november 2001 tb volume 2 page 4298 argument continuing act defendant conditional payment defendant 50 000 reason already touched discussion second question find review reasonable one sense looking objectively conclusion second plaintiff adequacy security reasonable 76 000 outstanding fee unreasonableness defendant effectively devalued contingent security unwilling offer security also contingent nothing appeared happening effect subdivision view every reason require change security arrangement second plaintiff review bona fide reasonable finally topic deal defendant contention plaintiff entitled take account review adequacy security bank charge 105 000 provided johnston withers claim contention mr schroeder failed duty file holding defence first consulted defendant done despite agreed act defendant despite file view two reason rejecting submission first might accepted solicitor ought take reasonable step protect potential client litigious disadvantage fact remains mean certain firm would act event solicitor agree act filed defence would seek get file mr schroeder made clear thing could help situation ask solicitor proceed judgment solicitor sign judgment aside regard compelling reason file called holding defence think questionable whether practitioner file defence based instruction based evaluation case read file second reason reject submission view holding defence would likelihood lead application plaintiff summary judgment entirely possible defendant managed defeat application would allowed condition provide security required provided judgment set aside way filing holding defence would delay necessity provide security view defendant contention respect untenable conclusion first issuei find second plaintiff entitled make proposal made november december change security arrangement including requirement defendant pay cash reduce plaintiff cost exposure find plaintiff entitled cease act defendant refused agree new financial proposal find plaintiff entitled recover fee disbursement interest plaintiff mean plaintiff practical reason regard position must consider set defendant claim entitled set offmr manetta submitted issue set turn largely report valuer mr richard mintz dated 23 june 1999 see paragraph 13 outline submitted mr schroeder negligent either read mintz report read appreciate significance either event failure led fail plead defendant statement claim partnership dispute partnership asset time m fennell death valued partnership operated going business daughter claim instead valued basis partnership insolvent mr mintz prepared report johnston withers acting defendant suggested insolvency valuation mr ellery valuer appointed court suggested ongoing business valuation partnership dispute came trial supreme court lander j december 2002 defendant unrepresented trial second plaintiff ceased acting defendant twelve month earlier mr schroeder providedpro bonoadvice support defendant trial also period leading trial still felt sympathy defendant wanted help litigation occasion attended lander j judge invitation assist defendant trial came end party announced settled case result defendant agreed pay daughter approximately 750 000 settlement occur defendant mintz report could assisted litigation seek set monies may liable pay plaintiff alleges negligence mr schroeder part say would settled case term realised significance mintz report issue set claim thesecond issuein trial may expressed thus failure mr schroeder plead insolvency partnership dispute entitle defendant set sum owes plaintiff background set claimas already mentioned defendant partner ran potato growing processing business growing done partly south east partly adelaide hill processing done factory mount barker essentially defendant operated growing side business spent time living working south east year m fennell death operated processing side attended bookwork time death discussion two partner selling south east land growing side business well occurred time m fennell death even talk selling processing plant time time defendant consulted mr schroeder mr schroeder preparing statement defendant use partnership dispute several version statement became part plaintiff tender document proceeding recent statement dated 7 may 2001 tb volume 1 page 3959 3983 nowhere statement appear instruction information suggesting time m fennell death partnership insolvent particularly processing factory running appears going concern true account defendant liquidity problem partnership business whole also processing factory however factory kept running m fennell death november 1996 fact defendant engaged currentde factowife yvonne run factory march 1997 tb volume 1 page 3976 business kept operating may 2000 tb volume 1 page 3981 gravamen defendant complaint statement m fennell daughter withheld document tied money eventually operating business closed said daughter behaviour factory would generated profit 100 000 per year march 1999 making loss 30 000 year march 1999 mr botting agricultural consultant called defendant give evidence trial advising m fennell leading death impression business good one performing t1154 given insufficient information m fennell business finance said thought loss processing lot le appeared get accurate figure put finger t1154 thought capital expense involved aspect growing side business part problem t1154 one defendant complaint expressed statement m fennell taking large sum money business specifically referred taking least 26 000 partnership pay two daughter wedding whole tenor instruction hence pleading behalf despite financial difficulty partnership business whole going concern time m fennell death closure processing factory 2000 fault daughter defendant partnership dispute certainly discussion m fennell death selling factory mr botting evidence demonstrates intended sell going concern mr schroeder recollection reading mintz report say clear defendant instruction along partnership insolvent time m fennell death defendant said nothing suggested pleading insolvency contrary instruction always defendant ruined viable business criticise m fennell bookkeeping cash withdrawal partnership purpose said defendant ruined business mr manetta surely correct submits function court determine whether partnership insolvent collateral matter court appointed valuer mr ellery concluded johnston withers commissioned mr mintz concluded mr schroeder recollect reading report say aware financial difficulty business saw suggestion defendant business insolvent time m fennell death odds loudly expressed claim defendant daughter sabotaged otherwise profitable business mr manetta meet contention argument mr schroeder seen two position inconsistent submitted mr schroeder misunderstood significance insolvency issue seen rather contradictory two position could maintained simultaneously put outline pleaded daughter charge killing dying business rather subverting sound one see paragraph 16 outline mr manetta concedes defendant never instructed mr schroeder plead way asserts mr schroeder negligent advising mr schroeder said read mintz report would advised defendant pleading insolvency would involve great difficulty proof would weaken sabotage claim defendant clearly making negligence claimin view claim negligence mr schroeder part cannot sustained whole tenor defendant allegation statement preponderance evidence suggests would ill advised embarked upon pleading insolvency basis finding mr schroeder negligent advising defendant plead insolvency contrary information available advice would seem sound wrong defendant surmount two obstacle first immunity barrister solicitor respect professional conduct intimately connected conduct case court seed orta ekenaike v victoria legal aid 2005 hca 12 second conclusiveness result trial lander j whether way judgment court way settlement consent order seesimington v australian prudential regulation authority 2006 fcafc 118at 27 30 andcirillo v consolidated press property pty ltd 2007 fca 60at 29 31 immunityi deal immunity question first accept onus proof rest party claiming immunity move straight position solicitor capacity mr schroeder acting difficulty assuming mr schroeder acting defendant solicitor 2002 period leading trial also trial despite retainer understand expectation fee continuing assist client professional capacity high court ind orta ekenaike v victoria legal aid supra held solicitor posse immunity suit negligence respect advice lead decision affect conduct case court see head note page 1 mchugh j 151 reviewed authority proposition protection applies practitioner undertaking work intimately connected conduct case court sense amount preliminary decision affecting way case conducted come hearing one would imagine drafting advising pleading would normally constitute work example work cited mchugh j 154 support view rationale immunity protection practitioner per se rather public policy principle finality litigation except way appeal mchugh j pointed particular aspect principle application case honour said 168 immunity extend work subject claim negligence would require impugning final decision court litigation matter already finally determined court case enquiry alleged negligence mr schroeder would require revisiting evidence lead trial settlement occurred presumably also evidence might lead settlement would undertaken see effect alleged negligence might outcome view solution problem submit mr manetta would determined loss chance opportunity defendant suffered result failure advise insolvency pleading enquiry would inevitably amount litigation written reply dated 6 december 2007 submission mr abbott mr manetta dispute alleged failure mr schroeder amend pleading include insolvency intimately connected court proceeding submits omission amount oversight pleader misapprehension nature claim pleaded protected immunity positive making decision affecting conduct case court protected citedgiannarelli v wraith 1988 hca 52 1988 165 clr 543per mason cj 559 560 keefe v mark 1989 16 nswlr 713per priestly ja 725 anddonnellan v watson 1990 21 nswlr 335 view mr manetta submission overlook nature alleged failure mr schroeder part mr schroeder gave evidence unable recollect reading mintz report say read would advised pleading insolvency claim fact would advised whole tenor defendant instruction evidence proposed adduce trial would least weaken possibly destroy sabotage claim daughter mintz report ever discussed mr schroeder defendant summarily dismissed already decided view approach mr schroeder negligent actually sound present purpose however put aside finding mr schroeder position therefore recall reading mintz report read would pleaded insolvency would advised relevant action formation view insolvency pleaded read mintz report happened would circumstance negligent decision plead insolvency constitutes negligent act indeed negligent reason conclude mr schroeder engaging suspect reconstruction gave evidence opinion reason holding view judgment honestly held pause say throughout evidence mr schroeder appeared diligent honest able dealing defendant legal problem manifested characteristic witness box defendant could suggest otherwise except respect discrete allegation negligence failure plead insolvency must seen positive act one leading directly decision affecting conduct case court protected immunity collateral attacki turn topic conclusiveness settlement proceeding lander j mr abbott refers aspect defendant claim collateral attack already referred high court decision ind orta case turned question immunity rationale immunity essentially importance finality litigation recapitulate high court reasoning mr abbott referred two federal case ofsimingtonandcirillo ibid passage cited case refer binding nature order court view settlement reached party partnership dispute final enforceable would amount litigating matter seek identify quantify loss suffered defendant negligence alleges mr schroeder proceeding finalconclusion set claimi find defendant entitled claim set obligation pay plaintiff fee etc sundry issuesthere number minor issue case end either abandoned plainly merit refer using description applied mr abbott outline argument first two described theinterest defenceand thecpi defence defendant initially claimed neither plaintiff entitled recover interest fee subject summary entitled increase fee broadly line inflation understand either defence maintained event retainer plainly provides payment interest increase fee line inflation see retainer paragraph 7 5 respectively turn described thefirst second premature claim defence claim broadly allege retainer must taken permit defendant reasonable opportunity pay account legal proceeding commenced final bill rendered shortly proceeding slightest suggestion defendant intended paying fee whole action fly face suggestion first premature claim defence second premature claim defence relates allegation bill taxable form view merit submission appear pursued therectification defencesuggests retainer fair appear pursued defendant completely without merit defendant given opportunity seek legal advice retainer nothing unfair term retainer view several minor claim way set themoving cost diary invoice claim defendant certainly maintained position regard three claim evidence view without merit defendant say mr schroeder failed include partnership pleading detail cost moving partnership asset partnership dispute part complaint say mr schroeder mislaid diary invoice would substantiated claim available document plaintiff possession cannot produce view claim sustainable finally 40 000 fee claim suggested defendant plaintiff misrepresented expected fee 40 000 turned somewhat time paid swincer settlement view argument without merit estimate estimate conclusioni find plaintiff entitled pursuant retainer entered first plaintiff cease act defendant find entitled recover cost disbursement together interest find defendant entitled set reason negligence part mr schroeder find mr schroeder negligent alleged event find protected immunity suit pleading insolvency find defendant entitled recover loss alleged suffered settlement reached partnership dispute settlement final ordersi hear party quantum final order make 1 defendant outline closing paragraph 3

MARSHALL & ANOR -v- THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA & ANOR [2007] WASCA 80 (27 April 2007).txt

marshall anor v town planning appeal tribunal western australia anor 2007 wasca 80 27 april 2007 last updated 27 april 2007jurisdiction supreme court western australiatitle court court appeal wa citation marshall anor v town planning appeal tribunal western australia anor 2007 wasca 80coram mclure jaheard 9 march 2007delivered 27 april 2007file ful 148 2003between raymond marshallingrid marshallappellantsandthe town planning appeal tribunal western australiafirst respondentthe western australian planning commissionsecond respondentfile ful 176 2004between raymond marshallingrid marshallappellantsandthe honourable alannah mactiernan mla minister planning infrastructurerespondenton appeal jurisdiction supreme court western australiacoram murray jroberts smith jmclure jcitation marshall v town planning appeal tribunal western australia 2004 wasca 202file ful 147 2003 ful 148 2003jurisdiction supreme court western australiacoram master sandersoncitation marshall v town planning appeal tribunal western australia 2004 wasca 202file civ 2358 2004catchwords practice procedure application leave 67 r 5 3 therules supreme court 1971 wa arguable ground reopen turn factslegislation rule supreme court 1971 wa 67 r 5result leave apply refusedcategory brepresentation ful 148 2003counsel appellant personfirst respondent appearancesecond respondent appearancesolicitors appellant personfirst respondent state solicitor officesecond respondent state solicitor officeful 176 2004counsel appellant personrespondent appearancesolicitors appellant personrespondent state solicitor officecase referred judgment 1mclure ja appellant seek leave 67 r 5 3 therules supreme court 1971 wa file application reopen judgment inmarshall v town planning appeal tribunal western australia 2006 wasca 146 marshall 6 relating appeal ful 148 2003 ful 176 2004 order 67 r 5 materially provides 1 writ process motion application commission presented filing issue sealing appears registrar abuse process court frivolous vexatious proceeding registrar shall refuse file issue writ process motion application commission without leave judge master first obtained party seeking file issue 2 case motion application ordinarily returnable master chamber application leave file issue motion application shall made master chamber 3 case application commission shall made judge chamber 2the registrar refused file application reopen without leave judge deal application separately ful 148 2003

ATL (Australia) Pty Ltd v Cui [2022] NSWSC 1302 (29 September 2022).txt

atl australia pty ltd v cui 2022 nswsc 1302 29 september 2022 last updated 29 september 2022supreme courtnew south walescase name atl australia pty ltd v cuimedium neutral citation 2022 nswsc 1302hearing date 12 august 2022date order 29 september 2022decision date 29 september 2022jurisdiction common lawbefore cavanagh jdecision 1 cross claim dismissed 2 second defendant pay plaintiff cost cross claim catchword contract formation agreement whether intention make concluded bargain essential important matter yet agreed whether subject statement asset liability master v cameronlegislation cited contract review act 1980 nsw case cited darzi group pty ltd v nolde pty ltd 2019 nswca 210ermogenous v greek orthodox community sa inc 2002 209 clr 95 2002 hca 8feldman v gnm australia ltd 2017 nswca 107g r security pty ltd v baulkham hill private hospital pty ltd 1986 40 nswlr 631geebung investment pty ltd v varga group investment 8 pty ltd 1995 nswca 166 1995 7 bpr 14 551masters v cameron 1954 hca 72 1954 91 clr 353michael kuehn jennifer kuehn v masterton home nsw pty ltd masterton home nsw pty ltd 2020 nswsc 1049pavlovic v universal music australia pty ltd 2015 90 nswlr 605 2015 nswca 313sagacious procurement pty ltd v symbion health ltd formerly mayne group ltd 2008 nswca 149category principal judgmentparties atl australia pty ltd plaintiff cross defendant jeffrey tse hung lee second defendant cross claimant representation counsel p knowles plaintiff cross defendant smallbone second defendant cross claimant solicitor cksd lawyer plaintiff cross defendant accuro maxwell sydney second defendant cross claimant file number 2018 393537publication restriction nonejudgmentthe plaintiff seek payment sum 13 889 392 23 number defendant guarantor respect loan made plaintiff borrower company liquidation way cross claim filed second defendant plaintiff second defendant maintains proceeding settled second defendant seek declaration term settlement agreement order plaintiff specifically perform carry execution settlement agreement plaintiff also seek damage arising failure plaintiff complete settlement second defendant say settled claim 100 000 plaintiff required enter deed release releasing liability proceeding listed hearing 7 day commencing 7 november 2022 understand position number defendant longer involved proceeding proceeding settled plaintiff second defendant second defendant asserts would play part proceeding second defendant casethe second defendant submits plaintiff second defendant entered binding agreement 14 february 2022 consequent upon email solicitor second defendant 14 february 2022 accepting offer plaintiff forwarded solicitor plaintiff email 10 february 2022 exchange email followed series text wechat social medium platform jeffery tse hung lee second defendant nancy wang behalf plaintiff principal submission second defendant matter fall second category case referred inmasters v cameron 1 least 14 february 2022 party agreed term bargain nevertheless made performance term conditional upon execution formal document second defendant alternative position party entered binding agreement 9 february 2022 day party exchanged text message amount second defendant would pay plaintiff would accept settlement plaintiff positionthe plaintiff dispute binding agreement plaintiff say although necessary matter fall particular category inmasters v cameron fact circumstance matter party intend would binding agreement executed formal document deed release agreed upon term money plaintiff say party ultimately unable agree term included deed release deed never executed circumstance concluded agreement background circumstancesin accordance commercial loan agreement dated 15 march 2017 plaintiff provided financial accommodation gordon halhas pty ltd acn 609 101 635 receiver manager appointment liquidation trustee gordon halhas trust abn 37 104 641 353 borrower way cash advance facility limit 14 million day borrower submitted utilisation request plaintiff plaintiff advanced sum 14 million borrower accordance agreement plaintiff maintains borrower defaulted commercial loan agreement failing repay full amount owing agreement 15 march 2018 plaintiff maintains borrower default agreement receiver manager appointed property borrower 20 september 2018 b liquidator appointed borrower 30 november 2018 plaintiff maintains 21 december 2018 amount owing borrower plaintiff agreement 13 889 392 23 plaintiff maintains first defendant second defendant fourth defendant guaranteed principal obligation payment plaintiff money owing time borrowed plaintiff relation agreement plaintiff asserts demanded payment debt first second fourth defendant defendant failed pay money owing guarantee 29 october 2021 second defendant filed third amended defence principal claim second defendant raise number defence including 1 dispute plaintiff allegation proper construction commercial loan agreement 2 denies clause 10 commercial loan agreement relied upon plaintiff give rise effective enforceable guarantee second defendant 3 relies thecontracts review act 1980 nsw asserts certain clause commercial loan agreement unjust 4 refers side agreement entered plaintiff lender borrower relation accrual interest agreement matter originally listed hearing 25 october 2021 hearing vacated second defendant granted leave rely third amended defence raised new issue whether guarantee could avoided agreement plaintiff borrower increased liability borrower around time adjourned hearing informal settlement conference party unaware happened settlement conference except achieve settlement plaintiff second defendant late 2021 m wang behalf plaintiff contacted second defendant directly view exploring settlement opportunity continued communicate directly second defendant wechat even though represented dentons time hoped communicating directly second defendant legal cost would reduced dispute m wang authority bind plaintiff necessary consider point around february 2022 party communicated directly engaged series text message conversation wechat messaging service message conversation chinese mandarin message recording translated purpose proceeding party agree translation issue determination relates effect text message conversation subsequent exchange correspondence solicitor dispute apparent text message process discussion negotiation second defendant m wang m wang ultimately agreed accept payment 100 000 second defendant reached agreement amount party referred matter back solicitor m wang suggesting second defendant solicitor prepare deed want spend money legal fee dispute arises disagreement party term deed release term never agreed upon particular differing view obligation respect statement asset liability initially referred email solicitor plaintiff dated 10 february 2022 also referred email solicitor second defendant dated 14 february 2022 second defendant say remains ready willing effect settlement however plaintiff say settlement solicitor mr gao appeared eleventh defendant commencement hearing sought granted leave excused wished play part hearing patrick knowles appeared plaintiff david smallbone appeared second defendant evidencethe second defendant relied following affidavit 1 affidavit second defendant dated 15 july 2022 4 august 2022 2 affidavit ana zhao dated 15 july 2022 4 august 2022 interpreter translating wechat message 3 affidavit annette leung dated 15 july 2022 4 august 2022 solicitor second defendant 4 affidavit ziguang yao dated 4 august 2022 another interpreter plaintiff relies 1 affidavit shiyi ye dated 29 july 2022 interpreter 2 affidavit xinyu wang dated 29 july 2022 8 august 2022 3 affidavit carl ku dated 29 july 2022 solicitor plaintiff person gave oral evidence m leung cross examined briefly whether two email written respect matter relating alleged settlement drafted counsel email dated 9 22 june 2022 believed addition exhibiting wechat message relevant correspondence second defendant identifies paid sum 100 000 solicitor trust account three instalment 11 14 february 2022 purpose payment agreed sum 100 000 plaintiff also say instructed solicitor regarding deed settlement exchange deed remains ready willing exchange deed perform obligation solicitor m leung refers involvement m wang behalf plaintiff various stage proceeding dispute also refers background including adjourned hearing earlier settlement conference annex correspondence solicitor subsequent text message exchange attempt made finalise exchange deed settlement also refers additional cost incurred trying convince plaintiff effect settlement affidavit evidence plaintiff effect m wang admits responsible giving instruction dentons solicitor plaintiff annex affidavit relevant document specifically denies said second defendant word effect binding agreement resolve dispute end text message translated audio file translated email correspondence speak circumstance matter commentary limited happening intended could relevant background regard objective approach must applied principle appliedalthough party might relied different case really dispute principle applied determination dispute inmasters v cameron court said 360 party negotiation reach agreement upon term contractual nature also agree matter negotiation shall dealt formal contract case may belong three case may one party reached finality arranging term bargain intend immediately bound performance term time propose term restated form fuller precise different effect secondly may case party completely agreed upon term bargain intend departure addition agreed term express imply nevertheless made performance one term conditional upon execution formal document thirdly case may one intention party make concluded bargain unless execute formal contract second defendant submits may controversy whether really fourth category merely situation may occur within scope one three category mentioned inmasters v cameron necessary say anything although ing r security pty ltd v baulkham hill private hospital pty ltd 2 existence fourth category accepted court appeal party agree strictly necessary bring set fact squarely within particular one identified category 3 issue remains whether objectively assessed party common intention contract time said done 4 inmichael kuehn jennifer kuehn v masterton home nsw pty ltd masterton home nsw pty ltd 5 hammerschlag j honour provided useful summary principle applied type dispute follows 1 whether agreement entered objectively assessed objective intention party fact based found circumstance including drawing inference word conduct making agreement allen v carbone 1975 hca 14 1975 132 clr 528at 532 australian broadcasting corporation v xivth commonwealth game ltd 1988 18 nswlr 540at 548 9 abc ermogenous v greek orthodox community sa inc 2002 209 clr 95at 105 25 sagacious procurement pty ltd v symbion health ltd 2008 nswca 149at 69 sagacious 2 ascertaining intention party whether series communication single document regard commercial circumstance party exchanged communication subject matter supposed contract sagaciousat 69 3 court write contract party failed reach agreement failure reach agreement includes obscurity incompleteness agreement sagaciousat 73 feldman v gnm australia 2017 nswca 107at 60 61 feldman 4 existence matter importance party reached consensus informal agreement render le likely intended immediately bound execution formal document term fully well stated material whether contract made important term le likely party left future decision legal obstacle prevents party agreeing bound deferring important matter geebung investment pty ltd v varga group investment 8 pty ltd 1995 7 bpr 97578at 14 579 abcat 548 sagaciousat 73 feldmanat 60 61 5 regard may party subsequent communication ass whether contemplation bound essential preliminary agreed formal contract drawn embodying matter incidental transaction abcat 547 8 authority cited bramble holding ltd v bathurst city council 2001 nswca 61at 25 howard smith co ltd v varawa 1907 hca 38 1907 5 clr 68at 78 b seppelt son ltd v commissioner main road 1975 1 bpr 9147 9155 sagaciousat 99 6 agreement may contain implied term requiring party cooperative act necessary bring contractual result duty cooperate may require party execute formal instrument apply negotiation varied additional term perini corporation v commonwealth australia 1969 2 nswr 530 harold r finger co pty ltd v karellas investment pty ltd 2016 nswca 123at 64 citation added indarzi group pty ltd v nolde pty ltd 6 emmett aja 141 observed court must ascertain common intention party determined objectively conduct communication regard surrounding circumstance known question different question whether party reached agreement upon term circumstance legally necessary constitute contract although two question may often closely related thus even though party may reached consensus term bargain may nevertheless intended point enter legally binding relation citation omitted inpavlovic bathurst cj 15 identified task follows case present depend construction single document involved objective determination question communication party context party dealing time leading making alleged contract involves consideration subject matter communication australian broadcasting corporation v xivth commonwealth game ltd 1988 18 nswlr 540at 550 said mahoney ja mchugh ja inair great lake pty ltd v k easter holding pty ltd 1985 2 nswlr 309 includes consideration party said wrote 334 337 consideration communication partiesin cross claim second defendant pleads following 1 agreement made 14 february 2022 cross claimant cross defendant agreed settle proceeding plaintiff claim second defendant herein agreement comprised exchange social medium wechat text audio message 8 9 february 2022 followed exchange email letter solicitor party email cross claimant solicitor 9 february 2022 9 29 email cross defendant solicitor 10 february 2022 12 52 pm email cross claimant solicitor 14 february 2022 2 21 pm b alternative comprised exchange social medium wechat text audio message 8 9 february 20221 exchange said email added term agreement c notwithstanding agreement provided formal instrument prepared regulate subject matter agreement intention party immediately bound agreed solicitor cross claimant prepare formal instrument settle content subject conforming term otherwise agreed party case put second defendant summarised introduction section second defendant written submission follows 1 cross claim filed 5 july 2022 second defendant mr lee seek specific performance agreement compromise plaintiff claim proceeding damage cost agreement made february mr lee promised pay 100 000 settle claim payment made within 3 business day exchange deed settlement release containing full mutual release deed prepared mr lee solicitor mr lee also provide statement asset liability 2 mr lee got money ready solicitor prepared submitted draft deed mr lee provided two statement asset liability plaintiff however refused complete settlement say agreement question whether party manifested intention enter immediately binding agreement relevant wechat conversation second defendant m wang described jeff nancy respectively translation document set chronological order six page document document contains text audio message english discussion commenced text 4 19am 7 february 2022 follows datepersonconversation7 feb 20224 19amjeffhi nancy tried many way day get 100k best ability settle 100k really unnecessary go court going pursue legal fee spent earlier either money give lawyer give finish earlier save work settle 100k lawyer emailed yesterday would hearing 11 feb occur legal expense hope get agreement settle ok 7 feb 202211 32amnancyi want go court either 7 feb 202211 36amnancyhope add little low7 feb 202211 37amjeffi really cannot get morethere followed continuing exchange m wang asking 125 000 second defendant insisting could pay anymore message continued next day 8 february 2022 4 44pm exchange actual amount m wang said besides please let lawyer make agreement save money followed exchange respect whether amount 100 000 125 000 would paid 5 16pm second defendant said reach agreement let lawyer draft cannot afford lawyer fee following response m wang said 6 21pm signing contract get 100k time settle immediately cannot get 100k pay 30k first pay 30k 6 week later 35kk 4 week later 30k 2 week later ok 30 second audio message 10 29pm m wang said sent lawyer negotiate um husband still want say pay 100 000 right away 25 000 would like give three month pay u 100 000 indeed bit low think million 0 taken 10 30pm said let know get lawyer reply tomorrow followed exchange lawyer advice second defendant maintaining figure 100 000 basis money m wang continued press higher amount second defendant continued respond essentially maintaining money take 100 000 commencing 11 41am sent three message follows datepersonconversation9 feb 202211 41amjefflet settle 100k exceeded limit sincere make 14 million back later 9 feb 202212 38pmjeffok nancy 7 feb 202212 39pmjeffif ok let lawyer continuefollowing response m wang second defendant sent text 4 11pm leading following exchange datepersonconversation9 feb 20224 11pmjeffnancy think need argue understand idea want fight please understand well first fair secondly lost money invested really hard hard time paying legal fee year nancy agree 100k make money back later thank 9 feb 20224 51pmnancyok trust time 9 feb 20224 51pmjeffthank 9 feb 20224 53pmjeffplease let lawyer reply lawyer communicated 9 feb 20224 55pmnancyyou make agreement first9 feb 20224 56pmnancywhen ready send lawyer save timethey ask inform latter9 feb 20224 58pmjeffi sent lawyer waiting confirmation 9 feb 20225 01pmnancyhave done agreement 9 feb 20225 05pmnancywhich bank account going use transfer money 9 feb 20225 17pmjeffcan let lawyer reply lawyer first ok 9 feb 20225 21pmjeffyesaustralian bank account9 feb 20225 21pmnancypersonal company account 9 feb 20225 22pmjeffpersonal9 feb 20225 30pmnancyi really feel like painful case9 feb 20225 43pmjeffwe recall process settling itthese text audio message must considered conjunction email solicitor example 9 45am 9 february 2022 second defendant sent text message stating lawyer emailed lawyer must reference email m leung sent 9 29am day following term omitting non critical part instructed party reached agreement resolve proceeding follows 1 client pay client sum 100 000 00 full final settlement matter and2 said sum paid within 3 business day upon party signing exchanging deed settlement release could please confirm proceed drafting deed party plainly reached agreement resolve proceeding term set email time indeed second defendant suggest agreement time event plaintiff solicitor responded email 10 february 2022 12 52pm follows dear m leung refer email 9 february 2022 telephone conversation earlier today confirm client prepared accept client offer 100 000 payable within 3 day exchanged deed subject following 1 client providing client consent judgment amount 100 000 hold escrow pending default deed settlement andb statement asset liability 2 full mutual release provided deed settlement indicated envisage issue client requirement seek instruction client also indicated prepare deed settlement similar form one used settle cost application email sent time subsequent wechat message already referred second defendant solicitor responded email 14 february 2022 2 21pm follows dear m lee refer without prejudice email dated 10 february 2022 12 52pm email dated 9 february 2022 9 29am confirm consideration client accepting sum 100 000 settlement sum full final settlement resolve proceeding respective client client agreeable condition proposed client namely 1 client provide consent judgment amount 100 000 held escrow firm pending default deed settlement returned u upon payment 100 000 trust accordance intention and2 client prepare statement asset liability also confirm prepare deed settlement including term full mutual release second defendant case concluded agreement time three day later solicitor plaintiff wrote email thank email m leung please let u know draft deed settlement available kind regard draft deed settlement release sent solicitor second defendant solicitor plaintiff email 22 february 2022 3 44pm deed contained number term relating payment release might viewed standard made mention statement asset liability referred email solicitor plaintiff 10 february 2022 12 52pm email solicitor first defendant 14 february 2022 2 21pm event solicitor plaintiff respond immediately provision draft deed solicitor first defendant followed email 28 february 2022 9 41am 28 february 2022 12 03pm solicitor plaintiff responded email 22 february 2022 raising issue respect statement asset liability deed settlement plaintiff asserted statement asset liability inadequate merely showed credit card debt 80 000 total asset comprising cash furniture effect 2 000 solicitor plaintiff pointed email september 2021 solicitor second defendant informed second defendant defending matrimonial proceeding property adjustment parenting order asic search indicated second defendant holder share number company plaintiff asserted condition settlement client provide satisfactory statement financial position respect deed settlement plaintiff marked number requested amendment including 2 incorporated requirement declaration financial position deed provided form declaration required annexure c and3 amended release provision rather providing client release client provide client covenant sue reason amendment release client co guarantor commercial loan agreement may give rise argument remaining guarantor release al extends liability guarantee provided please let u know whether client agrees proposed amendment plaintiff thus requested change draft deed including change default provision respect failure second defendant comply term covenant agreement condition implied deed including follows 6 following event occur event default occurred deed mr lee fails comply term covenant agreement condition implied deed including limited failure pay cause paid settlement sum accordance clause 2 5 b representation warranty information provide sic mr lee atl connection deed legal advice declaration false untrue inaccurate misleading incomplete c financial information provided mr lee atl connection financial position declaration false untrue inaccurate misleading incomplete plaintiff requested clause relating second defendant statement financial position including 17 mr lee provided atl signed completed statement financial position financial position declaration form attached deed annexure c 18 mr lee represents warrant atl information contained financial position declaration true correct b mr lee aware fact circumstance result mr lee financial position set declaration materially changing foreseeable future19 mr lee acknowledges atl entered deed reliance financial position declaration 20 mr lee acknowledges agrees event part financial position declaration one representation warranty set clause 18 accurate release contained clause 13 effect plaintiff proposed annexure c deed statutory declaration asset liability including income expense employment detail solicitor second defendant responded immediately indicating would take instruction revert soon possible 1 march 2022 solicitor plaintiff followed response day 1 march 2002 2pm second defendant communicated directly m wang referring issue raised plaintiff lawyer second defendant m wang maintained understand lawyer reference made conditional settlement m wang asked second defendant explain communication difficulty solicitor asked second defendant explain condition proposed lawyer event tuesday 1 march 2022 9 03 pm solicitor second defendant wrote without prejudice email solicitor plaintiff rejecting amendment deed proposed plaintiff particular rejecting proposal covenant sue lieu release rejecting proposition statement asset liability included sort representation forming basis plaintiff entry deed 2 march 2022 exchange email directly second defendant m wang initiated second defendant second defendant said understood agree settlement agreement based personal balance sheet meaning statement asset liability said included verbal agreement reached said condition 100 000 would paid one go accepted raised money agree settlement agreement based personal balance sheet m wang responded saying better follow wording lawyer second defendant said agree apparent second defendant asserting time concluded agreement 9 february 2022 inconsistent case pursuing email translated continued occasional basis june 24 may 2022 second defendant said nancy need firm idea whether proceed settlement continue litigation lawyer need get prepared litigation continue content email suggests second defendant proceeding basis binding agreement time 3 march 2022 direction hearing johnson j court mr smallbone behalf second defendant indicated court plaintiff second defendant reached agreement respect whole proceeding mr chan behalf plaintiff stated putting aside difference view whether probably settle indicated likely matter finish shortly fairly recent near future suffice say party continued negotiate term deed binding agreement first time could suggested anything agreed upon 9 february 2022 4 51pm time m wang agreed sum 100 000 proposed second defendant evident text message okay trust time however thing agreed time second defendant would pay plaintiff would accept sum 100 000 follows email sent solicitor second defendant solicitor plaintiff 9 february 2022 9 29am could reflective agreement party may second defendant instructed solicitor thought agreement would reached agreement reached statement instructed party reached agreement resolve proceeding follows incorrect time also apparent text message basis second defendant putting plaintiff plaintiff accept 100 000 could pay evident text message 4 11pm see 51 led plaintiff response already referred trust time commercial context party negotiating second defendant capacity pay amount claimed indeed amount offering could pay second defendant initial response plaintiff acceptance offer pay 100 000 please let lawyer reply lawyer communicated take reference email first defendant solicitor 9 february 2022 9 29am already referred m wang responded make agreement first followed message agreement 5 43pm 9 february 2022 first defendant said recall process settlement view party point agreed important term bargain merely agreed one term amount paid negotiated sum paid effect handing matter back lawyer necessary purpose entering binding agreement unlike ingeebung investment pty ltd v varga group investment 8 pty ltd 7 case agreement made party without lawyer settlement court case involving large sum whilst agreement price may unambiguous agreement point price sufficiently comprehensive demonstrate common intention bound settlement time evident language used party least contemplated would need worked litigation settled indeed consistent second defendant primary case although fallback position extent submits sort fallback position concluded agreement 9 february 2022 constituted exchange text message disagree next occasion might possible concluded agreement reached email 10 february 2022 12 52pm sent solicitor plaintiff solicitor second defendant highlighted earlier opening email solicitor plaintiff refers original email solicitor second defendant 9 february 2022 earlier telephone conversation however whilst solicitor plaintiff confirmed plaintiff prepared accept offer 100 000 payable within three day exchanged deed acceptance subject additional term 1 provision consent judgment hold escrow pending default deed settlement 2 statement asset liability meet full mutual release provided deed settlement effect email convey plaintiff would accept second defendant offer 100 000 payable within three day subject condition concluded agreement time 14 february 2022 solicitor second defendant responded purporting confirm plaintiff would accept sum 100 000 second defendant agreeable condition proposed notable party contemplated agreed provision statement asset liability would condition settlement language used case party merely agreed sum paid agreed mutual release proposed term payment agreed sum mutual release would reflected deed two additional condition significance 1 second defendant would provide consent judgment plaintiff would hold could act upon pending event default agreement event default might time 2 provision statement asset liability agreement provision statement asset liability would condition settlement significance context condition sought plaintiff agreed second defendant must text audio message second defendant leading agreement settlement amount amount proposed agreed reflective second defendant insistence could pay yet second defendant case obligation provide statement asset liability consequence second defendant response solicitor proposed draft deed including term reflective importance statement asset reject proposed term must implicit position adopted second defendant term statement asset liability whether statement accurate genuine may flow content statement asset liability would consequence provided second defendant supplied statement asset liability 2 march 2022 second defendant said directly m wang text word effect provision statement never part agreement agreement reached agreed amount statement inconsistent least primary case pursues evident email solicitor plaintiff 28 february 2022 12 03pm plaintiff accept statement asset liability provided second defendant satisfactory fully disclosed second defendant financial position plaintiff asserted condition settlement client provide satisfactory statement financial position email plaintiff sought incorporate requirement declaration financial position deed solicitor plaintiff previously included word satisfactory condition proposed respect statement asset liability email refers statement financial position rather merely statement asset liability albeit might intending describe thing nevertheless unsurprising party would contemplated statement asset liability would need satisfactory particularly context plaintiff agreed accept small proportion amount claimed second defendant trusted second defendant saying term ability pay email solicitor second defendant 1 march 2022 9 03pm paragraph 3 particularly significant follows client agree statement asset liability included representation forming basis client entry deed agreement struck respective client sic client accepts 100 000 condition paid one lump sum client accepted henceforth arranged amount paid trust account part party discussion client would provide warranty addition paying 100 000 form potential basis client institute proceeding statement agreement struck respective client sic client accepts 100 000 condition paid one lump sum correct insofar related monetary amount necessary merely repeat said many case important emphasise task determine whether party intended contractually bound particular time observed giles ja insagacious procurement pty ltd v symbion health ltd formerly mayne group ltd 8 asked determine whether general intention part party time enter contract second defendant case party intended 14 february 2022 make immediately binding contract bound agreement settle date thing remaining enter document reflected term agreement determining answer question matter necessary look merely exchange email 9 10 14 february 2022 course communication party includes text message directly party email solicitor also includes subsequent conduct party regard conduct cast light meaning communication question whether party intended immediately contractually bound earlier time 9 14 february party reached agreement sum paid would deed release mutual release also reached agreement second defendant would provide statement asset liability significance plain subsequent correspondence party took differing view significance statement asset liability second defendant consider mention statement asset liability deed although view ultimately altered view could common intention party objectively assessed would bound bargain 14 february 2022 circumstance statement asset liability yet provided contrary would utility provision statement asset liability commercial context party reached agreement sum paid second defendant could pay higher amount party agreed second defendant would provide statement asset liability would make sense plaintiff intend bound accept sum 100 000 irrespective content statement asset liability proposition concluded agreement binding plaintiff accept 100 000 full settlement irrespective statement would provided content statement seems commercially absurd second defendant case time party intended bound agreement party agreed anything statement one would provided evident subsequent conduct party even agree statement asset liability would need satisfactory view 14 february 2022 party reached agreement important term bargain intend bound reached agreement integral proposed agreement provision statement asset liability plainly agreement content statement significance overall settlement reach agreement term 14 february 2022 mean intended contractually bound time coming decision necessary go back famous passage inmasters v cameron contrary appears effect submission second defendant fact party reached agreement term contractual nature point mandate intended bound point indeed suggested second defendant case fall firstmasters v cameroncategory case could fall within second category inmasters v cameronas party completely agreed term bargain 14 february 2022 alternatively agreed term bargain must intend bound time provision satisfactory statement asset liability view set matter apart case might fall second category ofmasters v cameronis settlement conditional upon provision statement asset liability objectively assessed party must intended either second defendant would provide satisfactory statement would binding settlement would important term relating statement agreed included deed otherwise agreement second defendant provide statement would meaningless circumstance consider party entered binding concluded agreement 14 february 2022 merely agreed term agreement would ultimately unable reach agreement important term circumstance second defendant entitled order seek second defendant succeeded necessary consider damage issue order 1 cross claim dismissed 2 second defendant pay plaintiff cost cross claim 1 1954 91 clr 353 1954 hca 72 2 1986 40 nswlr 631 3 pavlovic v universal music australia pty ltd 2015 90 nswlr 605 2015 nswca 313at 69 beazley p pavlovic ermogenous v greek orthodox community sa inc 2002 209 clr 95 2002 hca 8at 105 4 pavlovic 15 bathurst cj 69 beazley p g r security pty ltd v baulkham hill private hospital pty ltd 634 635 mchugh ja feldman v gnm australia ltd 2017 nswca 107at 68 beazley p 5 2020 nswsc 1049at 29 6 2019 100 nswlr 394 2019 nswca 210 7 1995 nswca 166 1995 7 bpr 14 551at 14 553 gleeson cj 8 2008 nswca 149at 66 9 ibid 69 giles ja

Dungog Hardware 1 Pty Ltd v Chief Commissioner of State Revenue [2013] NSWSC 1340 (30 August 2013).txt

dungog hardware 1 pty ltd v chief commissioner state revenue 2013 nswsc 1340 30 august 2013 last updated 19 september 2013supreme courtnew south walescase title dungog hardware 1 pty ltd v chief commissioner state revenuemedium neutral citation 2013 nswsc 1340hearing date 30 august 2013decision date 30 august 2013jurisdiction equity division revenue listbefore white jdecision refer para 27 29 judgment catchword procedure cost substantive proceeding resolved consent whether defendant capitulated genuine compromise side distinction cost incurred objection process review proceeding underpt 10of thetaxation administration act 1996 whether special cost order warranted respect purported joinder plaintiff deregistered corporationlegislation cited pay roll tax act 1971payroll tax act 2007taxation administration act 1996cases cited minister immigration ethnic affair ex parte lai qin 1997 hca 6 1997 186 clr 622australian security commission v aust home investment limited 1993 fca 585 1993 44 fcr 194one tel limited v commissioner taxation 2000 fca 270 2000 101 fcr 548category principal judgmentparties dungog hardware 1 pty ltd 1st plaintiff clarencetown hardware pty ltd 2nd plaintiff freedom home pty ltd 3rd plaintiff custom transportable building pty ltd 4th plaintiff custom transportable building kooragang pty ltd 5th plaintiff chief commissioner state revenue defendant representation counsel counsel c j bevan plaintiff young defendant solicitor solicitor turner freeman plaintiff crown solicitor defendant file number 2010 142296judgmenthis honour 7 june 2010 plaintiff filed summons challenging notice assessment issued chief commissioner 12 february 2009 seeking various declaration assessment covered period tax year ended 30 june 2007 five plaintiff named summons namely dungog hardware 1 pty limited first plaintiff clarencetown hardware pty limited second plaintiff freedom home pty limited third plaintiff custom transportable building pty limited fourth plaintiff custom transportable building kooragang pty limited fifth plaintiff 7 june 2010 custom transportable building kooragang ctbk deregistered issue raised summons assessment concerned grouping plaintiff purpose thepay roll tax act1971

R v Nolan [2017] NSWCCA 91 (10 May 2017).txt

r v nolan 2017 nswcca 91 10 may 2017 last updated 10 may 2017court criminal appealsupreme courtnew south walescase name r v nolanmedium neutral citation 2017 nswcca 91hearing date 24 april 2017date order 10 may 2017decision date 10 may 2017before hoeben cj cl 1 price j 2 fullerton j 98 decision 1 crown appeal allowed 2 sentence imposed district court new south wale 6 december 2016 quashed 3 lieu therefore respondent sentenced imprisonment 15 year 3 month consisting non parole period 11 year 6 month commencing 24 october 2014 expiring 23 april 2026 balance term 3 year 9 month commencing 24 april 2026 expiring 23 january 2030 4 earliest date respondent eligible released parole 23 april 2026 catchword criminal law crown appeal sentence one count causing grievous bodily harm intent whether offence fell worst category whether error finding objective seriousness high range whether sentence manifestly inadequate life threatening injury inflicted 7 month old consequent severe disability need general deterrence sentence manifestly inadequate whether residual discretion exercised sentencelegislation cited crime act 1900 33 1 b criminal appeal act 1912 5dcrimes sentencing procedure act 1999 s 2 k 2 l 21a 2 g 21a 2 ib 21a 3 case cited bugmy v queen 2013 249 clr 571 2013 hca 37cmb v attorney general new south wale 2015 256 clr 346 2015 hca 9green v queen quinn v queen 2011 244 clr 462 2011 hca 49hili v queen 2010 242 clr 520 2010 hca 45little v r 2010 nswcca 210lowndes v queen 1999 195 clr 655 1999 hca 29r v barker 2016 nswcca 193r v kilic 2016 339 alr 229 2016 hca 48r v mitchell r v gallagher 2007 177 crim r 94 2007 nswcca 296r v twala court criminal appeal nsw 4 november 1994 unrep category principal judgmentparties regina applicant andrew john nolan respondent representation counsel mr e balodis applicant m avernell respondent solicitor solicitor public prosecution applicant fourtree lawyer respondent file number 2014 00311870003publication restriction nildecision appeal court tribunal district court nswjurisdiction criminaldate decision 8 december 2016before ingram sc dcjfile number 2014 00311870003judgmenthoeben cj cl agree price j order proposes particularly endorse honour observation par 72 judgment price j isa crown appeal brought director public prosecution pursuant tos 5dof thecriminal appeal act 1912 nsw sentence imposed andrew john nolan respondent ingram sc dcj judge 8 december 2016 notice appeal signed behalf dpp 21 december 2016 served respondent following day respondent pleaded guilty one count causing grievous bodily harm intent cause grievous bodily harm contrary tos 33 1 b thecrimes act 1900 nsw maximum penalty offence imprisonment 25 year standard non parole period 7 year imprisonment allowing 10 per cent discount utilitarian value plea guilty judge sentenced respondent imprisonment 12 year 6 month consisting non parole period 8 year 6 month commencing 24 october 2014 expiring 23 april 2023 balance term 4 year commencing 24 april 2023 expiring 23 april 2027 respondent eligible released parole 23 april 2023 crown amended notice appeal identifies following ground ground 1 sentencing judge erred finding objective seriousness high range ground 2 sentence imposed manifestly inadequate factsan agreed statement fact tendered judge incorporated sentencing remark agreed fact may summarised follows 23 september 2014 respondent babysitting bobby webber bobby nephew hisde factopartner casey watt bobby seven month old time cared bobby parent home respondent previously minded bobby company m watt complete trust bobby parent bobby sole care respondent 5pm 10 30pm m watt returned home found respondent asleep couch woke respondent told evening bobby playing respondent mobile phone dropped head started cry cause alarm m watt went bobby cot found tucked sheet sobbing sleep picked bobby find limp unresponsive bobby two mark forehead butter applied upon removing bobby nappy saw swelling redness around genital area bobby eye remained closed continued sob m watt called respondent pointing bite mark bobby hand asked happened respondent replied know respondent said given bobby phenergan m watt believing bobby allergic reaction took straight wyong hospital upon arriving hospital bobby required immediate resuscitation stabilisation underwent ct scan transported sydney child hospital placed life support bobby presented multiple unexplained injury detailed tendered statement dr kieran moran paediatrician director child protection team sydney child hospital handed judge child various injury summarised agreed fact follows 1 eyesboth eye suffered extensive retinal bruising involving layer retina extending four quadrant retina extremely severe injury consistent severe shaking severe impact seen motor vehicle accident falling significant height 2 headi multiple bilateral fracture skull due impact considerable force either object object possible single impact ii two abrasion similar carpet burn right foreheadiii pink petechial haemorrhage middle foreheadiv bruising swelling part ear caused pinching blow ear 3 braini extensive hypoxic ischaemic injury brain structureii bleeding surface around skulldue severe rotational force brain brainstem 4 torsoi bruise right rib cageii patterned petechial bruising penis accompanied swelling bruisingiii posterior rib fractures5 limbsi bruising left right lower limbsii bruise left wristiii impacted fracture anklesiv adult bite mark bobby left hand attendant swelling 27 september 2014 bobby parent advised authorise termination life support done however bobby continued breathe independently bobby transferred icu paediatric ward parent asked complete end life care plan bobby went cardiac arrest transfer would resuscitated ultimately bobby improved enough end life care plan ceased discharged parent home 18 november 2014 result offence bobby permanent debilitating life threatening condition subsequent traumatic brain injury bobby developed encephalomalacia permanent loss brain tissue result acquired seizure disorder movement disorder abnormal posturing arm leg cerebral palsy cortical blindness full description bobby prognosis ongoing therapeutic need impact injury development contained statement dr michael cardamone paediatric neurologist dr cardamone opined prognostic implication bobby permanent brain injury poor recurrent chest infection life threatening child mixed dystonic spastic quadriparetic cerebral palsy bobby epilepsy developmental issue put increased risk sudden unexpected death epilepsy dr cardamone reported bobby seizure whilst better controlled three anticonvulsant medication could life threatening event could shorten life span bobby would epilepsy likely throughout life dr cardamone stated encephalomalacia affected lobe brain leading significant degree physical visual language cognitive impairment already apparent examination detrimental impact physical psychological emotional social development well child future rehabilitation therapeutic need dr cardamone wrote bobby require ongoing rehabilitation including long term regular physiotherapy occupational therapy intervention brain injury rehabilitation unit sydney child hospital would require carers intensive structure long term regular neurological review respondent provided four different account occurred evening 23 september 2014 first police interview 24 september 2014 respondent said thing note happened bobby care bobby accidentally hit respondent mobile phone three time said given bobby mobile phone play later fed bobby noticed mark bobby forehead put butter bring bruise respondent also noted bobby snuffy cold otherwise well police asked could account bobby injury said could second account two hour walkthrough interview bobby parent home police 29 september 2014 respondent enacted movement evening 24 september 2014 particular enacted carrying bobby upright position head unsupported bathroom steam room ease congestion respondent expressed belief someone must entered house unlocked door injured bobby asleep couch conclusion walkthrough respondent said bobby whoever hope find happened disgraceful need find happened third account 20 october 2014 respondent told kristy chidgey babysitting baby hit head asleep said left front door unlocked hear anything respondent took photo baby phone told m chidgey baby look right going send photo casey must forgotten download respondent phone revealed photograph bobby taken 7 44pm 23 september 2014 fourth account 15 february 2016 legal representative follows 5pm started babysitting bobby webberhe bounceri gave mobile phone play twice bobby raised arm head dropped phone onto head distance 30cm length arm third time tug war phone bobby resulting bobby pulling phone away phone hitting bobby forehead mark bobby forehead three incident result put butter forehead thinking would bring bruise loss consciousness due incident short time later bobby carpet nappy changed rolled onto stomach disposed old nappy fresh nappy stage therefore naked waist placed foot bobby back force rubbed body carpet bobby cry gave 2 drop phenergan settle himput cotbobby kept cryingi hit twice open hand back side head forehand backhandi picked bobby arm dropped cot bobby head hit side cot bar inside cot way landed backi left room bobby still cot cryingsometime later took bobby bathroom bobby conscious cry stage memory happened thereafternext memory woken wife return 10 30pm bit bobby hand car way hospital believed may bring around state depressed consciousness last account provided dr kieran moran opinion dr moran opined respondent accountcouldaccount documented injuriesexceptfor two fractured ankle could caused slamming child foot hard surface degree force behind two open handed hit head must significant dr moran opinion two closed fist punch likely force open handed hit dispersed open handed possible scenario administered significant force two hit headcouldaccount bilateral skull fracture subdural haemorrhage retinal haemorrhage bruising ear dr moran noted retinal haemorrhage severity seen bobby usually occur case severe shaking outside documented case arise motor vehicle accident fall significant height documented case related fall 11 metre hard surface severe crush injury relation dropping bobby cot dr moran stated unlikely caused injury though bobby flung cot force could also alternate additional mechanism fractured skill attendant injury respondent placing foot bobby back moving body carpet could account bruising penis sufficient force applied back pelvis fractured rib various bruise torso dr moran maintained following infliction head injury bobby level consciousness would decreased significantly totally stage night depressed level consciousness would noticeable carer bobby also would limp damage brain show stop breathing period time assertion bobby conscious cry shower possible unlikely likely able hold head much likely needed cradled like new born respondent subjective casethe respondent 32 year old time offence 34 year old sentenced give evidence judge mr noelene chapman gave oral evidence respondent case known respondent 17 year sentencing remark judge recounted mr chapman described respondent gentle giant easy going always smile face generous spirit judge noted mr chapman observed dramatic change respondent since charged respondent attempted put good face appeared written material placed judge respondent behalf included letter written judge pre sentence report dated 20 april 2016 prepared mahmoud elsayed pre sentence report dated 29 november 2016 prepared m jendy ellen report professor susan hayes forensic psychologist dated 11 august 2016 character testimonial respondent mother sister niece extract two police statement referring mr elsayed report judge noted sentencing remark respondent youngest five child older sibling much older respondent father passed away three year old raised mother home free domestic violence drug alcohol issue respondent completed year 10 school certificate level special need school due intellectual disability judge recounted corrective service record confirmed respondent found functioning range intellectual disability low cognitive functioning judge said respondent told mr elsayed unemployed approximately three year time commission offence reported mr elsayed history depression age 18 year diagnosed condition medicated depression whilst custody honour noted mr elsayed indicated respondent appeared limited insight offending behaviour reporting police good job investigating offence disputed majority agreed fact respondent initially denied bitten bobby challenged agreed bite child way medical centre purpose initiating response mr elsayed reported respondent denied shaking bobby said rather playfully threw air also claimed head injury suffered child result dropping child cot finally respondent accept responsibility claimed intruder responsible injury inflicted child judge noted mr elsayed reported respondent articulated sorry child child parent respondent assessed medium risk offending mr elsayed judge referred report professor hayes detail honour said respondent reported professor hayes attended special education class throughout education diagnosed attention deficit disorder leaving school obtained apprenticeship cabinet maker thereafter 20 job time offence process starting furniture making business respondent told professor hayes relationship m watt stress result money trouble interpersonal issue partner verge splitting stayed together sake daughter honour noted respondent concession professor hayes given inaccurate earlier version event claimed denial could believe done respondent told professor hayes excuse action took full responsibility judge recounted traumatic event 2000 respondent diagnosed depression prescribed medication three five year ceased taking medication recommenced 2002 instigation m watt respondent told professor hayes time offence taken antidepressant medication week feeling depressed whilst custody suicidal ideation judge observed testing conducted professor hayes indicated respondent function range borderline intellectual disability level le 97 per cent age peer respondent functional age equivalent level similar individual primary school well chronological age adaptive behaviour skill fell range mild intellectual disability level lower 99 per cent age peer particular deficit communication skill especially receptive language professor hayes opined respondent currently diagnosis depression anxiety disorder panic anxiety attack receiving medication considered respondent depression could regarded chronic professor hayes opinion respondent presented low risk offending showed sincere remorse action indicated letter judge interview able express empathy child parent professor hayes reported since report mr elsayed april 2016 respondent insight offending behaviour assumption responsibility action changed therefore risk offending lower judge referred character testimonial written material tendered honour noted initially respondent placed protective custody involved association protective custody inmate referring pre sentence report dated 29 november 2016 judge said respondent currently housed integrated support unit associate protection inmate envisaged respondent protection status would remain place entirety incarceration respondent prior criminal history judge remarked respondent limited criminal history particular relevance present proceeding 2004 fined relation driving incident gave rise three offence namely driving whilst license suspended driving uninsured motor vehicle driving unregistered vehicle 2008 fined offence failing appear resisting officer execution duty destroying damaging property finding judgethe judge accepted nature scope constellation injury ongoing permanent nature sequela grave risk death arose injury aggravating factor purpose s 21a 2 g 21a 2 ib crime sentencing procedure act 1999 honour also accepted offence involved grave breach trust relation bobby particularly vulnerable tender age purpose ofsubsections 2 k and2 l crime sentencing procedure act honour accepted offence pre meditated judge stated evidence disclosed bobby uninjured 5pm injured extraordinarily severe extent disclosed fact 10 30pm little could otherwise concluded precise circumstance attack respondent upon bobby except observe photograph taken 7 44pm respondent suggested bobby may unconscious time judge said precise circumstance injury came inflicted upon bobby could established beyond reasonable doubt honour remarked apparent constellation injury distribution extent range medically likely cause necessarily involved respondent engaged significant physical attack upon bobby entirely defenceless seven month old judge accept balance probability respondent account 15 february 2016 fourth account fact circumstance resulting bobby injury honour said circumstance unable make necessary factual finding respondent action commission offence sufficient warrant conclusion offence within worst case category judge observed bobby injury catastrophic nearly proved fatal despite surviving initial attack bobby left lifelong catastrophic sequela consequence injury primarily brain injury caused respondent honour said child injury sequela considered alone would consistent offence within worst case category however regard objective circumstance offence established beyond reasonable doubt honour satisfied offence fell squarely within high range objective seriousness comparison offence middle range objective seriousness ro 46 judge accepted respondent record relevant previous conviction found person prior good character honour also accepted respondent unlikely offend good prospect rehabilitation furthermore judge accepted applicant genuinely belatedly remorseful matter taken account mitigating factor judge pursuant tos 21a 3 crime sentencing procedure act judge accepted opinion professor hayes respondent functioned cognitive reasoning borderline intellectual disability range adaptive skill mild intellectual disability range accepted respondent suffered chronic depression anxiety disorder panic anxiety attack judge found respondent well knew gravity action attacked bobby despite compromise level intellectual functioning depressive related disorder judge satisfied respondent intellectual functioning depressive related disorder contributed materially respondent commission offence moral culpability respondent thereby significantly reduced judge said satisfied warrant amelioration sentence reason reduced need denunciation general deterrence judge considered notwithstanding offender level intellectual functioning depressive related disorder emphasis upon specific deterrence warranted judge accepted sentence imposed likely somewhat onerous respondent consideration warranted reflection degree amelioration sentence judge found special circumstance reason need provide longer period parole order facilitate rehabilitation properly ensure respondent reintegration community upon release custody discounting sentence 10 per cent guilty plea judge assessed appropriate sentence 14 year imprisonment crown appealsthe principle relating crown appeal pursuant tos 5dof thecriminal appeal actwere helpfully summarised hoeben cj cl inr v barker 2016 nswcca 193as follows 52 crown appeal pursuant tos 5dof thecriminal appeal act 1912must brought primary purpose court providing governance guidance sentencing court requirement operates limiting purpose appeal contrast court jurisdiction sentence appeal brought offender circumscribes jurisdiction court crown appeal prevent intervention ground sentence plainly unjust reason manifest inadequacy mere correction error individual sentencing proceeding green v queen quinn v queen 2011 hca 49 244 clr 462 r v tuala 2015 nswcca 8 53 accordingly 5dcrown appeal asserts error sentencing principle apart ground sentence plainly unjust crown must establish existence error sentencing judge within one first four category referred inhouse v r 1936 hca 40 55 clr 499at 505 r v tualaat 99 ii identify sentencing principle engaged error r v tualaat 99 ii establish sentence appeal manifestly inadequate regina v janceskiper hunt aja 25 spigelman cj howie j agreed 55 crown appeal pursuant tos 5dmight also brought purpose court providing governance guidance sentencing court sentence appeal manifestly inadequate plainly unjust thereby likely undermine public confidence proper administration criminal justice sentencing offender bugmy v queen 2013 hca 37 249 clr 571at 24 appeal involve fifth category error referred inhouse v r ground 1 sentencing judge erred finding objective seriousness high range argumentthe crown referred submission made judge objective seriousness offence crown observed judge found injury suffered child sequela considered alone would consistent offence within worst case category however honour found unable make necessary factual finding action respondent commission offence sufficient warrant conclusion offence reason within worst case category crown submitted finding respondent action level worst case approaching necessary order find offence within worst case crown argued judge erred determining needed satisfied mechanism child injured could conclude case fell within worst category argued mechanism bobby came injured mean lacking seriousness judge found significant physical attack crown contended honour reluctance find offence fell within worst category could make factual finding respect respondent action akin conceiving even worse instance offence crown submitted open judge find objective seriousness fell high range objective seriousness crown said proper conclusion offence fell near approaching worst category offence respondent reminded court assessment objective seriousness offence quintessentially matter judge question court whether judge assessment squarely within high range open honour respondent submitted whilsts 33 1 thecrimes actoffences result based manner injury caused reason surrounding circumstance mode attack relevant assessment objective seriousness judge could satisfied beyond reasonable doubt injury came inflicted upon child error assessment objective seriousness respondent referred tor v kilic 2016 339 alr 229 2016 hca 48 kilic high court directed attention avoiding expression worst category whether offence grave warrant maximum prescribed penalty considerationthe proceeding sentence judge preceded judgment high court inkilic crown put judge objective seriousness offence fell worst category offence contrary tos 33 1 thecrimesact

Yadar (Migration) [2019] AATA 1835 (3 June 2019).txt

yadar migration 2019 aata 1835 3 june 2019 last updated 12 july 2019yadar migration 2019 aata 1835 3 june 2019 decision recorddivision migration refugee divisionapplicant maria rafiq yadarcase number 1802462home affair reference bcc2017 3830683member quinndate oral decision 3 june 2019date written statement 3 june 2019place decision melbournedecision tribunal remit application student temporary class tu visa reconsideration direction applicant meet following criterion subclass 500 student visa clause 500 212 schedule 2 regulation statement made 03 june 2019 3 29pmcatchwordsmigration student temporary class tu visa subclass 500 student genuine temporary entrant good academic progress clear future employment plan personal tie australia circumstance visa application lodged decision review remittedlegislationmigration act 1958 cth 65migration regulation 1994 cth schedule 2 cl 500 212statement decision reasonsapplication reviewthis application review decision made delegate minister immigration border protection delegate 18 january 2018 refuse grant applicant student temporary class tu visa visa undersection 65of themigration act 1958 act applicant applied visa 18 october 2017 application time application class tu contained two subclass subclass 500 student subclass 590 student guardian applicant applied visa subclass 500 student visa undertake study australia claim meet criterion subclass 590 student guardian visa 18 january 2018 delegate refused grant visa basis applicant satisfy requirement clause 500 212 schedule 2 themigration regulation 1994 regulation namely applicant considered genuine applicant entry stay student copy delegate decision provided tribunal applicant review application 31 january 2018 applicant applied review delegate decision tribunal pursuant section 338 2 347 act 16 month elapsed since making delegate decision applicant application review tribunal coming consider merit application review tribunal recognises applicant personal circumstance bearing upon visa application may changed time tribunal considered would beneficial applicant provide updated information tribunal purpose determining outcome application review end 15 april 2019 tribunal wrote applicant pursuant section 359 2 act inviting provide information writing course study applicant undertaking entry stay australia student s359 2 letter applicant provided requested information prescribed due date 29 april 2019 submitted material 31 may 2019 theapplicant appeared tribunal 3 june 2019 give evidence present argument tribunal gave decision review conclusion hearing held 3 june 2019 following reason decision applicant assisted relation review registered migration agent tribunal proceeded decision regard information including department file material evidence provided applicant tribunal following reason tribunal concluded matter remitted reconsideration statutory frameworkthe criterion subclass 500 student visa set inpart 500of schedule 2 regulation primary criterion clause 500 211 clause 500 218 must satisfied least one applicant clause 500 212 requires follows applicant genuine applicant entry stay student applicant intends genuinely stay australia temporarily regard applicant circumstance ii applicant immigration history iii applicant minor intention parent legal guardian spouse applicant iv relevant matter b applicant intends comply condition subject visa granted regard applicant record compliance condition visa previously held applicant ii applicant stated intention comply condition visa may subject c relevant matter applicant intend genuinely stay australia temporarily considering whether applicant satisfies clause 500 212 tribunal must regard direction 69 assessing genuine temporary entrant criterion student visa student guardian visa application direction made section 499 act direction requires tribunal regard number specified factor relation applicant circumstance home country potential circumstance australia value course applicant future applicant immigration history including previous application australian visa visa country previous travel australia country applicant minor intention parent legal guardian spouse applicant andany relevant information provided applicant information otherwise available decision maker including information may either beneficial unfavourable applicant direction indicates factor specified used checklist rather intended guide decision maker considering applicant circumstance whole reaching finding whether applicant satisfies genuine temporary entrant criterion direction lawful direction minister made accordance section 499 act tribunal therefore bound consider extent term relevant apply applicant case 1 accordingly term direction application applicant case considered relation material tribunal tribunal however recognises independent statutory body must therefore reach conclusion merit applicant case includes assessment extent factor direction relevant applicable independently conclusion reached delegate consideration claim evidencethe applicant case 22 year old female pakistan citizen first arrived australia 5 june 2016 holder class fa subclass 600 tourist visa valid 2 september 2016 returned australia 27 july 2017 holder another class fa 600 tourist visa valid 27 october 2017 2 18 october 2017 9 day prior tourist visa expiring applicant applied student visa subject review applicant application study diploma business management bachelor professional accounting prior coming australia applicant completed secondary school 2014 pakistan e commerce web designing course 2016 book keeping course 2017 bachelor commerce 2017 pakistan applicant filed relevant certificate confirming qualification tribunal addition number certificate reflecting award achievement study extra curricular activity clear tribunal applicant committed conscientious student member community pakistan applicant state employed time australia condition visa work parent brother supporting financially due delay applicant matter coming tribunal commenced completed diploma business management course november 2018 also commenced bachelor professional accounting due complete july 2021 applicant supplied supporting material confirm tribunal response s359 2 letter applicant also provided interim statement result bachelor professional accounting dated 8 april 2019 indicates completed 3 subject exempt 8 subject unit obtains credit diploma study letter offer applicant course provider previously field tribunal dated 26 november 2018 indicated applicant would complete diploma june 2018 tribunal enquired applicant complete course november 2018 applicant stated needed return pakistan extensive dental treatment period three month march 2018 related worn brace period five year included filling extraction tribunal accepts evidence note consistent information provided applicant response s359 2 letter circumstance tribunal considers applicant applied study made good academic progress credit genuine temporary entrant statement filed tribunal 31 january 2018 submission filed 31 may 2019 gte applicant set clear future employment plan applicant intends complete study accounting return pakistan take work muhammad co chartered accountant complete certified accounting qualification working firm ultimately commence accounting firm applicant filed tribunal letter muhammad co chartered accountant confirms applicant submission future plan role within firm applicant gave evidence firm run uncle commenced business five six year ago applicant made detailed written submission clearly demonstrating proposed study assist goal whilst claim certain remuneration tribunal accepts proposed study relevant likely assist improve employment prospect home country tribunal also find current bachelor level course consistent applicant current level education tribunal concerned timing way applicant came apply student visa second holiday visa applying onshore 9 day prior expiry holiday visa applicant explained hearing returned australia july 2017 yet result bachelor commerce course pakistan sure would study australia evidence somewhat puzzling tribunal seems unlikely applicant short space time arrived tourist visa could make sudden change plan initial intention visit significant change would necessarily include greater level planning preparation arriving australia considering length time three year applicant proposed spend australia would seem appropriate time applicant made student visa application would pakistan returning australia july 2017 applicant stated relationship australia life sister brother law four year old nephew another couple applicant sister family husband son reside australia basis student visa due expire later year applicant brother lived australia approximately six year life australia wife australian citizen working harvey norman earning approximately 65 000aud per annum applicant see brother approximately week tribunal considers circumstance applicant tie australia present strong incentive remain onshore applicant returned pakistan march 2018 aforementioned dental treatment state youngest child family parent extended family expect return applicant parent many relative pakistan speaks family daily basis whatsapp video calling audio calling face time facebook tribunal accepts applicant personal tie pakistan serving significant incentive return applicant stated response s359 2 letter expense australia 33 800aud per annum bulk expense related school fee also provided number document indicating significant property holding pakistan tribunal accepts applicant economic circumstance australia would appear incentive return home applicant response s359 2 letter stated travelled qatar 2018 transit united arab emirate 2016 3 day holiday united kingdom three week 2007 holiday sri lanka 2007 one week holiday also stated travel visa immigration issue past potential military service obligation political civil unrest circumstance pakistan tribunal accepts evidence tribunal concerned personal tie applicant australia way came make application student visa arriving onshore tourist visa 9 day prior tourist visa expiring however applicant demonstrated clear gain employment prospect undertaking proposed course made commendable academic progress since commenced study 2017 regard applicant circumstance immigration history relevant matter tribunal satisfied applicant genuine applicant entry stay student temporarily required clause 500 212 accordingly applicant meet clause 500 212 schedule 2 regulation given finding appropriate course remit application visa minister consider remaining criterion subclass 500 student visa decisionthe tribunal remit application student temporary class tu visa reconsideration direction applicant meet following criterion subclass 500 student visa clause 500 212 schedule 2 regulation membert quinnattachment direction 69direction number 69 assessing genuine temporary entrant criterion student visa student guardian visa application section 499 peter dutton minister immigration border protection give direction undersection 499of themigration act 1958 act dated 18 april 2016peter duttonminister immigration border protectionnote section 499 1 act empowers minister give written direction person body function power act direction performance function exercise power undersection 499 2 act direction must inconsistent act themigration regulation 1994 section 499 2a act person body must comply direction part 1of direction 69 preliminaryname directionthis direction direction 69 assessing genuine temporary entrant criterion student visa student guardian visa application may cited direction 69 commencementthis direction commences 1 july 2016 interpretationactmeans themigration act 1958 genuine temporary entrantmeans person satisfies genuine temporary entrant criterion student visa student guardian visa application genuine temporary entrant criterionrefers clause 500 212 500 312 590 215 schedule 2 regulation home countryhas meaning definition term inregulation 1 03inpart 1of regulation regulationsmean themigration regulation 1994 relativehas meaning definition term inregulation 1 03inpart 1of regulation spousehas meaning definition term section 5f act student visameans subclass 500 student visastudent guardian visameans subclass 590 student guardian visa applicationthis direction applies delegate performing function exercising power section 65 act relation assessing applicant temporary entrant criterion student visa application schedule 2 regulation direction also applies member administrative appeal tribunal review decision primary decision maker relation student visa student guardian visa application genuine temporary entrant criterion must satisfied applicant make application either student visa seeking satisfy primary criterion student guardian visa preamblethe australian government operates student visa programme enables people australian citizen australian permanent resident undertake study australia person want undertake course study student visa programme must obtain student visa commence course study australia successful applicant must genuine temporary entrant genuine student applicant genuine temporary entrant circumstance support genuine intention temporarily enter remain australia notwithstanding potential intention change time intention utilise lawful mean remain australia extended period time permanently genuine temporary entrant criterion student visa application requires minister satisfied applicant intends genuinely stay australia temporarily regard applicant circumstance andthe applicant immigration history andif applicant minor intention parent legal guardian spouse applicant andany relevant matter direction provides guidance decision maker factor require consideration assessing paragraph determine whether applicant genuinely intends stay australia temporarily decision maker must take reasonable balanced approach need make timely decision student visa student guardian visa application need identify applicant time decision genuinely intend stay australia temporarilypart 2of direction 69 directionsassessing genuine temporary entrant criteriondecision maker use factor specified direction checklist listed factor intended guide decision maker considering applicant circumstance whole reaching finding whether applicant satisfies genuine temporary entrant criterion decision maker ass whether balance genuine temporary entrant criterion satisfied considering applicant factor specified direction andconsidering relevant information provided applicant information otherwise available decision maker decision maker may request additional information evidence applicant demonstrate genuine temporary entrant closer scrutiny applicant circumstance considered appropriate circumstance scrutiny may appropriate include limited information statistical intelligence analysis report migration fraud immigration compliance compiled department indicates need scrutiny applicant relative applicant immigration history reasonable concern applicant intends study field unrelated previous study employment andapparent inconsistency information provided applicant student visa application application student visa student guardian visa refused weighing applicant circumstance immigration history relevant matter decision maker satisfied applicant genuinely intends temporary stay australia applicant circumstancesdecision maker regard applicant circumstance home country applicant potential circumstance australia primary applicant subclass 500 student visa decision maker regard value course applicant future weight placed applicant circumstance indicate student visa student guardian visa intended primarily maintaining residence australia applicant circumstance home countrywhen considering applicant circumstance home country decision maker regard following factor whether applicant reasonable reason undertaking study home country region similar course already available decision maker allow reasonable motif established applicant extent applicant personal tie home country example family community employment whether circumstance would serve significant incentive return home country economic circumstance applicant would present significant incentive applicant return home country circumstance may include consideration applicant circumstance relative home country australia military service commitment would present significant incentive applicant return home country andpolitical civil unrest applicant home country includes situation nature may induce applicant apply student visa student guardian visa mean obtaining entry australia purpose remaining indefinitely decision maker aware changing circumstance applicant home country influence may applicant motivation applying student visa student guardian visa decision maker may regard applicant circumstance home country relative circumstance others country applicant potential circumstance australiain considering applicant potential circumstance australia decision maker regard following factor applicant tie australia would present strong incentive remain australia may include family community tie evidence student visa programme used circumvent intention migration programme whether student visa student guardian visa used maintain ongoing residence whether primary secondary applicant entered relationship concern successful student visa outcome decision maker determines applicant dependant contrived relationship successful student visa outcome decision maker may find applicant satisfy genuine temporary entrant criterion andthe applicant knowledge living australia intended course study associated education provider including previous study qualification realistic level knowledge applicant expected know level research applicant undertaken proposed course study living arrangement value course applicant futuredecision maker regard following factor considering value course applicant future whether student seeking undertake course consistent current level education whether course assist applicant obtain employment improve employment prospect home country decision maker allow reasonable change career study pathway andrelevance course student past proposed future employment either home country third country andremuneration applicant could expect receive home country third country compared australia using qualification gained proposed course study applicant immigration historyan applicant immigration history refers visa travel history considering applicant immigration history decision maker regard following factor previous visa application australia country including applicant previously applied australian temporary permanent visa whether visa application yet finally determined within meaning subsection 5 9 act granted ground application refused andif applicant previously applied visa country whether applicant refused visa circumstance led visa refusal previous travel australia country including applicant previously travelled australia whether complied condition visa left visa ceased circumstance beyond control whether applicant previously held visa cancelled considered cancellation associated circumstance amount time applicant spent australia whether student visa student guardian visa may used primarily maintaining ongoing residence including whether applicant undertaken series short inexpensive course onshore time without successfully completing qualification andif applicant travelled country australia whether complied migration law country circumstance around non complianceif applicant minor intention parent legal guardian spouse applicantif primary secondary applicant subclass 500 student visa minor decision maker regard intention parent legal guardian spouse applicant relevant mattersdecision maker also regard relevant information provided applicant information otherwise available decision maker assessing applicant intention temporarily stay australia includes information may either beneficial unfavourable applicant 1 fkp18 v minister immigration border protection 2018 fca 1555 10 34 chen v minister immigration border protection 2017 fca 46 29 williams v minister immigration border protection 2014 fca 674 2014 226 fcr 112 60 73 jagroop v minister immigration border protection 2014 fcafc 123 2014 225 fcr 482 8 baker v minister immigration citizenship 2012 fcafc 145 10 minister immigration citizenship v obele 2010 fca 1445 2010 119 ald 358 53 cockrell v minister immigration citizenship 2008 fcafc 160 2008 171 fcr 345 27 28 2 see delegate decision

Sanguine Technology Pty Ltd ACN 124 894 088 v Abacus Calculators (W.A.) Pty Ltd ACN 009 092 513 [2010] FCA 279 (25 March 2010).txt

sanguine technology pty ltd acn 124 894 088 v abacus calculator w pty ltd acn 009 092 513 2010 fca 279 25 march 2010 sanguine technology pty ltd acn 124 894 088 v abacus calculator w pty ltd acn 009 092 513 2010 fca 279 25 march 2010 last updated 26 march 2010federal court australiasanguine technology pty ltd acn 124 894 088 v abacus calculator w pty ltd acn 009 092 513 2010 fca 279citation sanguine technology pty ltd acn 124 894 088 vabacus calculator w pty ltd acn 009 092 513 2010 fca 279parties sanguine technology pty ltd acn 124 894 088 abdus salam aziz laree jeanette aziz v abacus calculator w pty ltd acn 009 092 513 glenn fordfile number wad 252 2007judge lander jdate judgment 25 march 2010catchwords trade practice damage sought pursuant tos 82of thetrade practice act 1974 cth tpa contravention ofs 52of tpa relation sale business claim damage breach warranty vendor provided warranty would disclose relevant information whether misrepresentation contravention ofs 52of tpa relied upon misrepresentation corrected relevant information provided even misrepresentation established corrected final purchase settlement business reliance established award damage pursuant tos 82of tpalegislation trade practice act 1974 cth s 51a 52 82cases cited campomar sociedad limitada v nike international limited 2000 hca 12 2000 202 clr 45citedelders trustee executor co ltd v e g reef pty ltd 1987 fca 332 1983 78 alr 193citedgould v vaggelas 1984 157 clr 215appliedhenville v walker 2001 hca 52 2001 206 clr 459citedhornsby building information centre pty ltd v sydney building information centre 1978 hca 11 1978 140 clr 216citedjones v dunkel 1959 hca 8 1959 101 clr 298citedparkdale custom built furniture pty ltd v puxu pty ltd 1982 hca 44 1982 149 clr 191citedsmith v new south wale bar association 1992 hca 36 1992 176 clr 256citedsutton v aj thompson pty ltd liq 1987 73 alr 233citedtaco co australia inc v taco bell pty ltd 1982 fca 136 1982 42 alr 177citedwardley australia ltd v westernaustralia 1992 hca 55 1992 175 clr 514citeddate hearing 29 june 2009 30 june 2009 1 july 2009place adelaide videolink perth division general divisioncategory catchwordsnumber paragraph 249counsel applicant mr metaxassolicitor applicant metaxas hagercounsel respondent mr zilko sc mr houghtonsolicitor respondent arns associatesin federal court australiawestern australia district registrygeneral divisionwad 252 2007between sanguine technology pty ltd acn 124 894 088first applicant first cross respondentabdus salam azizsecond applicant second cross respondentlaree jeanette azizthird applicant third cross respondentand abacus calculator w pty ltd acn 009 092 513first respondent cross claimantglenn fordsecond respondentjudge lander jdate order 25 march 2010where made adelaide videolink perth court order applicant proceeding dismissed judgment entered cross claimant first respondent cross respondent applicant sum 414 857 made 321 971 plus interest 92 886 calculated rate 10 7 may 2007 today date applicant pay respondent cost proceeding cross respondent pay cross claimant cost cross claim liberty cross claimant apply order second third cross respondent pay cross claimant cost indemnity basis note settlement entry order dealt order 36 federal court rule text entered order located using federal law search court website federal court australiawestern australiadistrict registrygeneral divisionwad 252 2007between sanguine technology pty ltd acn 124 894 088first applicant first cross respondentabdus salam azizsecond applicant second cross respondentlaree jeanette azizthird applicant third cross respondentand abacus calculator w pty ltd acn 009 092 513first respondent cross claimantglenn fordsecond respondentjudge lander jdate 25 march 2010place adelaide videolink perth reason judgmentintroductionthis application applicant damage pursuant tos 82of thetrade practice act 1974 cth tpa contravention respondent ofs 52of tpa breach warranty agreement sale business proceeding concern sale early 2007 first respondent business first applicant proceeding also includes cross claim first respondent first applicant unpaid portion purchase price cross claim second third applicant guarantee given applicant relation payment purchase price trial applicant lead evidence contradicted cross claim cross claim admitted amount claim viz 321 971 49 interest rate 10 per annum pursuant provision contract 7 may 2007 judgment judgment entered favour first respondent applicant sum together interest 7 may 2007 rate 10 judgment according term contract first applicant incorporated 13 april 2007 special purpose vehicle purchase business owned first respondent second third applicant husband wife director first applicant first respondent owner business abacus retail business sold first applicant second respondent sole director first respondent dispute party relates extent information given respondent applicant 9 13 15 march 26 april 2007 particular concern financial information relating business included brochure contained spreadsheet given second applicant 9 march 2007 financial information given 13 march 2007 important issue information given meeting 15 march 26 april 2007 question whether applicant relied upon information provided entering agreement purchase business document provide complete history relation provision information respondent second applicant first question dispute must resolved reference oral evidence witness second question resolved reference documentary evidence second applicant evidence pleadingsi identify issue raised pleading examine evidence light issue raised party conducted trial accordance issue raised pleading statement claimthe applicant pleaded claim 9 march 2007 second applicant received brochure promoting sale first respondent business included summary profit loss result business financial year ended 2004 2005 2006 period ended 31 october 2006 headed retail gl acct total retail group p l summary disclosed sale period 1 july 2006 31 october 2006 2 496 951 spreadsheet headed retail division consolidated profit loss disclosed actual sale july august september october projection relation november 2006 june 2007 pleaded 13 march 2007 second applicant received profit loss statement business period 1 july 31 december 2006 includes sale profit loss figure period 31 december 2006 sale period 1 july 2006 31 december 2006 3 659 690 translated profit 49 419 applicant claim reliance upon spreadsheet profit loss update first applicant entered agreement first respondent purchase business 17 april 2007 agreement date identify term agreement including certain warranty given first respondent pleaded annexure agreement contained relevantly following term 10 2 annexure agreement b clause 5 first respondent warranted first respondent possession knowledge information revealed could cause first applicant purchaser business substantially modify term offer withdraw offer purchase business warranty and10 3 general condition 24 first respondent represented first applicant agreement date settlement date subclause e representation made first respondent gmo respect past sale expense profit loss financial information accurate best first respondent information belief first representation b subclause h information known first respondent relating business agreement material known first applicant disclosed first applicant second representation paragraph 10 2 address warranty defines paragraph 10 3 address two condition warranty defined warranty pleaded reliance upon profit loss summary spreadsheet profit loss update first applicant completed settlement agreement 7 may 2007 second third applicant entered guarantee supporting first applicant paragraph 12 statement claim summarises financial information given pleaded sale january 2007 end april 2007 significantly le projected sale spreadsheet percentage variation sale achieved projected sale pleaded paragraph 12 4 statement claim 12 4 column 4 percentage variance sale achieved projected sale month listed monthcolumn 1projected salescolumn 2sales achievedcolumn 3variancescolumn 4 variancejul 06594 000589 7594 2411 aug 06697 000695 2461 7540 sep 06716 000717 030 1 030 0 oct 06482 000481 7872130 nov 06658 000633 27427 2544 dec 06658 000529 485141 96422 jan 07658 000523 155134 84520 feb 07658 000505 545152 45523 mar 07806 000399 535406 46550 apr 071 014 000311 356702 64469 applicant claim paragraph 13 statement claim representation first representation made first respondent goodwin mitchell hehir business broker wa pty ltd gmo acting behalf first respondent respect past sale profit loss financial information relating business accurate best first respondent information belief insofar 13 1 spreadsheet projected sale would 658 000 january february 007 806 000 march 2007 1 014 000 april 2007 13 2 december 2002 first respondent place system reporting sale achieved store manager daily weekly monthly basis first respondent knew sale month commencement following month 13 3 agreement date first respondent knew sale 523 155 658 000 january 2007 505 545 658 000 february 2007 399 535 806 000 march 2007 and13 4 settlement date first respondent knew sale 523 155 658 000 january 2007 505 545 658 000 february 2007 399 535 806 000 march 2007 311 356 1 014 000 april 2007 applicant plead first representation constituted misleading deceptive conduct first respondent gave rise contravention ofs 52of tpa paragraph 15 pleaded first respondent made representation second representation disclosing information known first respondent material information known first applicant 15 1 spreadsheet projected sale would 658 000 january february 806 000 march 1 014 000 april 2007 15 2 december 2002 first respondent place system reporting sale achieved store manager daily weekly monthly basis first respondent knew sale month commencement following month 15 3 agreement date first respondent knew sale 523 155 658 000 january 2007 505 545 658 000 february 2007 399 535 806 000 march 2007 and15 4 settlement date first respondent knew sale 523 155 658 000 january 2007 505 545 658 000 february 2007 399 535 806 000 march 2007 311 356 1 014 000 april 2007 and15 5 first respondent made disclosure first applicant agreement date settlement date matter paragraph 15 3 15 4 applicant plead second representation also conduct misleading deceptive contravention ofs 52of tpa next pleaded representation made first respondent projected sale january 2007 june 2007 representation first respondent future matter time brochure provided second applicant 9 march 2007 first respondent reasonable ground making representation pleaded conduct constituted misleading deceptive conduct contravention ofs 52of tpa regard applicant relied upon 51a tpa pleaded paragraph 20 statement claim second respondent person knowingly concerned three contravention lastly paragraph 22 statement claim applicant rely upon clause 5 annexure agreement sale purchase business provided first respondent possession knowledge information revealed could cause first applicant purchaser business substantially modify term offer withdraw offer purchase business claimed first respondent breached warranty true sale recorded business month january february march 2007 known first respondent substantially le sale forecast spreadsheet plea paragraph 22 23 breach warranty first respondent agreement date possession knowledge information revealed could cause first applicant purchaser business substantially modify term offer withdraw offer purchase business namely true sale month january february march 2007 20 23 50 respectively le sale forecast spreadsheet reason first respondent breach warranty first applicant suffered loss damage pleaded paragraph 21 1 claim breach warranty limited claim respondent provide financial information month january february march 2007 revealed would caused first applicant substantially modify term offer withdraw offer plea pick warranty paragraph 10 2 plea respondent breached condition paragraph 10 3 statement claim claimed three separate contravention tpa breach warranty caused applicant loss damage closing submission mr metaxas counsel applicant contended applicant also pleaded paragraph 13 breach general condition particular clause 24 e 24 h condition clause 24 e 24 h general condition agreement provide seller represents intent representation shall survive settlement date agreement settlement e representation made seller seller agent respect past turnover expense profit loss financial information accurate best seller information belief h information known seller relating business agreement material known buyer disclosed buyer already noted paragraph 10 3 refer condition plea remainder statement claim condition breached agree therefore statement claim claim breach respondent clause 24 e paragraph 13 14 15 16 statement claim confined contravention tpa express plea paragraph 14 16 based upon material fact pleaded paragraph 13 15 plea understood plea breach contract contained paragraph 22 23 limited warranty paragraph 10 2 statement claim opinion applicant confined pleading defencethe respondent admit provision information pleaded applicant 9 march 2007 13 march 2007 respondent assert information provided 13 march 2007 showed profit period 31 december 2006 149 419 rather 49 419 pleaded applicant assert paragraph 6 defence 15 march 2007 second respondent stated second applicant word effect sale figure contained spreadsheet relating month including november 2007 figure created first respondent budgeting purpose based sale profit previous year forecast future sale profit respondent plead second applicant first respondent entered agreement purchase business first respondent 16 march 2007 refer term agreement first agreement respondent plead march 2007 second applicant requested first respondent agree rescind first agreement enter second agreement term first agreement save party second agreement purchasing business first applicant respondent admit first applicant entered written agreement first respondent 17 april 2007 pursuant first applicant agreed purchase business first respondent respondent plead second agreement contained number term addressed representation made prior entry agreement addition respondent rely upon special condition 1 annexure second agreement 7 6 3 special condition 1 annexure agreement conditional upon abacus supplying sanguine within 7 day agreement copy account book business activity statement financial information relating business financial information sanguine accountant may reasonably require sanguine could absolute discretion give written notice intention terminate agreement within 14 day receipt financial information dissatisfied report accountant respect financial information particular respondent deny paragraph 7 8 8 6 defence first applicant second third applicant relied upon spreadsheet provided second applicant 9 march 2007 entering first agreement second agreement respondent address paragraph 15 statement claim paragraph 12 defence plead 12 1 respondent deny paragraph 15 1 15 5 statement claim 12 2 respondent admit paragraph 15 2 15 3 15 4 statement claim 12 3 respondent say around 21 march 2007 mr philip fernihough accountant employed first respondent provided mr peter guthrie accountant retained applicant conduct due diligence purchase business document printed first respondent account set following sale business january 2007 521 900 sale business february 2007 500 215 andthe sale business around 20 march 2007 around 260 000 12 4 respondent say around 26 april 2007 second respondent provided second named applicant document entitled march retail sale comparison set inter alia daily sale store business total daily sale business total sale business period 1 march 2007 31 march 2007 399 535 12 5 respondent say around 26 april 2007 second respondent provided second named applicant spreadsheet entitled sale period 1 april 2007 24 april 2007 set following information sale joondalup store business period 1 april 2007 24 april 2007 totalled 23 804 64the sale cloister square store business period 1 april 2007 24 april 2007 totalled 41 672 79the sale rockingham store business period 1 april 2007 24 april 2007 totalled 31 608 06the sale osborne park store business period 1 april 2007 24 april 2007 totalled 45 184 79the sale cannington store business period 1 april 2007 24 april 2007 totalled 82 583 35the sale morley store business period 1 april 2007 24 april 2007 totalled 25 397 71the respondent deny representation made give rise misleading deceptive conduct deny allegation contravention tpa repeat paragraph 13 defence respondent made representation projected sale business period january 2007 june 2007 matter denied replythe applicant admit fact first agreement otherwise join issue matter raised defence cross claimthe respondent raised cross claim document included respondent original defence paragraph 4 cross claim address financial term agreement identifies amount payable first applicant 100 000 goodwill 150 000 fixture 750 000 stock trade subject adjustmentit pleaded term agreement value stock trade exceeded 500 000 first applicant would pay sum excess 500 000 within 180 day settlement interest would run amount unpaid 10 settlement paragraph 5 6 cross claim address contemporaneous loan agreement first respondent loaned first applicant sum 100 000 repayable within 180 day settlement unpaid would carry interest rate amount unpaid stock paragraph 7 refers guarantee second third applicant guaranteed payment first applicant sum mentioned term guarantee referred paragraph 8 cross claim paragraph 12 cross claimant first respondent identifies amount claimed cross claim pursuant term second agreement loan agreement amount owing sanguine abacus 7 may 2007 321 971 49 calculated follows stock excess 500 000 00 224 076 27vendor finance adjustment per settlementstatement 13 august 2007 clause 16 ofthe second agreement 53 102 11error adjustment settlement statement regardingmay 2007 rental cloister square store incorrectlycredited sanguine 14 924 16cannington bank guarantee 28 500 00monies withheld sanguine pursuant invoice 704910not received abacus 1 368 95total 321 971 49although amount payable 180 day settlement interest run date settlement namely 7 may 2007 paragraph 4 3 6 3 reply cross respondent applicant filed defence cross claim issue trial relation cross claim need addressed witnessesthe two principal witness trial second applicant second respondent third applicant surprisingly give evidence notwithstanding claimed guarantee gave first applicant liability entered reliance information contained spreadsheet document however absence trial meant evidence anything reliance upon act representation made respondent respondent contended third applicant failure give evidence meant claim must fail court conclude third applicant failure give evidence evidence would assisted first second applicant respect allegation made jones v dunkel 1959 hca 8 1959 101 clr 298 evidence third applicant involvement transaction evidence ever read documentary evidence provided respondent present meeting party therefore cannot give evidence said happened meeting prepared infer failure give evidence mean evidence would assisted applicant case think give evidence could add anything evidence given second applicant evidence give therefore draw ajones v dunkelinference however absence mean evidence relied upon representation made respondent entering guarantee first applicant obligation applicant contended second respondent untruthful evidence respondent contended second applicant untruthful evidence finding party witness deliberately given false evidence made necessary purpose decision smith v new south wale bar association 1992 hca 36 1992 176 clr 256per deane j 271 applicant contended second respondent untruthful number aspect evidence first relation evidence meeting held 15 march 2007 applicant contended second respondent evidence aspect untruthful evidence mr phillip fernihough administration manager first respondent called respondent reason give accept contention second respondent mr fernihough untruthful evidence matter second respondent evidence corroborated mr fernihough evidence thought mr fernihough honest witness making every attempt assist court evidence chief mr james goodwin director gmo also corroborates second respondent evidence regard indeed accepted evidence event 15 march 2007 meeting rejected first applicant evidence meeting occurred secondly applicant contended second respondent untruthful information provided second applicant meeting held 26 april 2007 also reject contention evidence challenged tended support second respondent evidence evidence corroborated mr fernihough evidence also supported statement mr cyril martin statement tendered without objection applicant counsel seek cross examine mr martin two reason reject applicant contention regard thirdly contended second respondent untruthful evidence applicant supplied first respondent financial record relating business second respondent said cross examination financial information provided second applicant settlement later said information provided prior first applicant providing cheque purchase business later said done prior settlement witness statement second respondent make mention providing financial information applicant 7 8 may 2007 cross examined counsel applicant content affidavit sworn 6 june 2008 affidavit second respondent said financial information provided second applicant 7 8 may 2007 paragraph 43 45 affidavit deposed applicant requested copy sale relating abacus business period 1 july 2005 7 may 2007 respondent discovered sale report 24 february 2005 sent store owned first applicant unless first applicant disposed sale report first applicant possession since 8 may 2007 discovered first applicant around 8 may 2007 first respondent provided business retained first applicant power business system access financial history first respondent business purpose enabling first respondent take electronic copy first respondent financial record believe power business system copied number first respondent financial record discovered document second respondent evidence cross examination issue mr metaxas please honour mr ford affidavit still front second respondent mr metaxas please look paragraph 44 second respondent yes mr metaxas said paragraph 44 document dealt paragraph 43 44 45 first applicant possession since 8 may 2007 correct document say read second respondent correct yes mr metaxas settlement 7 may know second respondent yes mr metaxas never exchange information settlement term previously suggested second respondent honour think question vague respect mr metaxas sorry exchange information people honour power business system mr metaxas managed power business system managed mr martin behalf occur settlement second respondent aware honour agreeing agreeing occur settlement second respondent right yes sorry honour saying far aware happened honour second respondent relation since 8 may honour mr metaxas putting mean exchange information power business system settlement agree proposition second respondent yes mr metaxas previously say information available mr aziz settlement second respondent asked thought relation check took place asked think honour said got paid word effect honour get paid settlement second respondent 7 may honour get paid second respondent believe 11 12 may honour settlement 7 may second respondent yes honour mr zilko sc counsel respondent said confusion question evidence concept settlement payment cheque first applicant provide first respondent cheque day settlement information provided applicant meantime think mr zilko right may confusion second respondent evidence distinction settlement payment cheque however difficulty second respondent evidence whatever reason unsatisfactory mention provision information evidence chief evidence emerged cross examination attack second respondent credibility second applicant never cross examined whether second respondent provide financial information referred second respondent affidavit settlement reason prepared find second respondent provide financial information deposed second respondent second applicant 7 8 may 2007 fourth matter upon applicant said second respondent evidence untruthful least unreliable relation provenance spreadsheet second respondent evidence relation spreadsheet unsatisfactory made every attempt distance first respondent spreadsheet gist evidence document first prepared may 2006 purpose presentation first respondent banker relation future credit provision put document intended reliable denied end contrary mr fernihough evidence said document previous form never presented bank second respondent evidence cross examination relation document mr metaxas case information provided bank purpose say information document financial facility existence abacus bank bank mr ford document bank first went westpac asked u use document called winforecast would use document past figure relation requirement back school calculator mr metaxas understanding could call spreadsheet benefit compendious expression spreadsheet purpose informing bank cash flow requirement might referable finance facility financial year 06 07 mr ford yes mr metaxas thank figure provided bank intended perspective reliable mr ford document give bank updated move year mr metaxas yes accept date document created assume little end october 2006 end month document intended reliable mr ford document actual fact created back april may 06 basis give forward purchase supplier school calculator figure used mirror image previous sale 2004 2005 year mr metaxas sale reported end october 2006 spreadsheet actual sale mr ford updated one explained moved forward information would update figure mr metaxas please honour mr ford talking spreadsheet adjourned put proposition spreadsheet prepared bank understand likely financing requirement overdraft facility understanding mr ford forecast relation back school calculator need mr metaxas well relevant one month spreadsheet relevant every month spreadsheet mr ford relevant back school funding usually started around october november depending quantity required finished around march figure mr metaxas right intention bank would rely document mr ford indication mr metaxas intention bank rely document mr ford mr ford mr metaxas right bank got thrown bin mr ford given bank format much part full consolidated whole group mr metaxas well something document qualified report spreadsheet mr ford would total group sheet retail group honour particular document mr ford created talking consolidated document talking particular document mr ford originally honour would created around april may honour purpose mr ford purpose see need back school period honour created purpose publishing bank mr ford allowing u guide bank possible need honour question mr ford sorry honour honour created purpose publication bank mr ford yes honour right published bank mr ford recall honour created purpose publication bank presumably expected bank rely upon mr ford yes cross examined later version document created october 2006 honour see document prepared time end october 2006 mr ford honour purpose mr ford updated honour purpose particular document created mr ford originally created honour asking document one includes october figure purpose created mr ford show mr kerry hehir gmo budgeted expense asked retail store overhead honour specifically created purpose educating business broker relating sale business mr ford original document sorry honour honour mr ford follow question please mr ford okay honour talking document went brochure document originally created april 2006 understand mr ford yes honour document created went brochure created end october 2006 mr ford correct honour contains october 2006 sale mr ford yes honour purpose created mr ford apologise honour keep u updated cash internal document used honour said short time ago created behest mr hehir mr ford given honour said answer question mr ford yes honour said mr ford yes honour misunderstood question honour see well created sorry purpose creating document kind internal purpose mr ford keep u date cash flow requirement honour well help mr ford well give u till october sale give u indication following till march believe sale may give u part total group group funding requirement honour published bank document mr ford honour information document apart budget figure actual sale july august september october apart actual sale actual figure mr ford honour could help cash flow mr ford well showed u expecting cash come business honour mr ford projecting see possible inflow cash would retail store various part division company honour created purpose advising future forecast forecast cash flow mr ford yes mr metaxas used purpose mr ford mr metaxas used mr ford mr metaxas right honour mr ford find difficult understand would create document use mr ford satisfy honour used mr ford satisfy honour mr ford satisfy bank one bank requirement use program winforecast give sort indicative figure back school purchase honour thought supplied bank mr ford used internally honour could felt needed additional funding could produce bank discus honour thought given two answer one supplied bank b use internally mr ford originally supplied bank honour evidence mr ford thought said originally given bank honour evidence please mr ford sorry honour understand question honour say last minute document supplied bank used internally mr ford honour say mr ford yes honour explain honour ask another question might mr ford sorry yes honour view evidence purpose creating document mr ford originally ongoing felt cash flow requirement increase decrease could present bank relation additional funding time hand mr fernihough provided following answer relation document mr metaxas well intended reliable mr fernihough intended budget budget tend reliable mr metaxas well sorry difficulty proposition document prepared understand purpose bank providing overdraft facility company mr fernihough yes yes mr metaxas document provided bank mr fernihough yes mr metaxas winforecast provided bank mr fernihough yes mr metaxas provided bank updated ongoing basis mr fernihough actually going update december honour provided bank reason mr fernihough get applied yearly additional funding cover back school period school calculator honour honour provided bank bank rely upon mr fernihough yes accept evidence second respondent referred prefer mr fernihough evidence inherently likely accurate second respondent accept criticism applicant second respondent evidence relation provenance spreadsheet impossible think first respondent would prepared document purpose presentation bank presented bank upon respondent expect bank rely prepared find second respondent deliberately untruthful respect evidence matter reject evidence topic whilst prepared find second respondent untruthful respect unsatisfactory witness tended answer question directly end result formed opinion second respondent evidence treated caution weight evidence given depend upon whether corroborated evidence witness credit reliable documentary evidence happens reason give later prepared accept entirety evidence mr fernihough whose evidence often corroborate evidence second respondent respondent contended second applicant evidence untruthful respect unreliable respect mr metaxas argued second applicant sophisticated businessman able think quickly evidence contended ought understood light think sufficient evidence determine whether second applicant sophisticated businessman event march april may 2007 behaved like confident competent businessman whether matter judgment form opinion able think quickly counsel contended formed view took time answer question concerned import question effect answer formed opinion thought trial would quite careful answer gave respondent contended four aspect evidence materially affected credit accepted would enable find deliberately falsified evidence first contended respondent established second applicant failed discover two particular document exhibit r2 copy letter second applicant accountant second applicant dated 18 january 2008 part exhibit r3 r21 assignment proposal form support contention respondent tendered three list document provided applicant discovery document verified affidavit sworn second applicant satisfied neither document discovered applicant document directly relevant issue raised pleading address question reliance document contained information adverse applicant case document discovered second applicant said pressed relation issue given document solicitor could explain two document discovered applicant solicitor trial prepared list document prepared infer second applicant deliberately failed discover document thought may adverse case knowledge document given solicitor made decision relation discovery document would unfair second applicant infer deliberately failed discover document accordance discovery obligation second matter respondent relied upon related letter demand written applicant solicitor 16 november 2007 letter written reply letter demand written first respondent 13 november 2007 claiming balance purchase price together interest applicant solicitor letter number point taken relation amount presently payable number complaint made value stock purchased applicant number complaint made including complaint business make net profit 811 483 financial year ended 30 june 2006 applicant solicitor sought number document first respondent order make claim significantly complaint made letter representation spreadsheet false misleading deceptive conduct respondent relation financial information produced respondent relating business 30 june 2006 respondent contended letter established applicant never relied upon spreadsheet later claim invented purpose bringing proceeding 16 november 2007 applicant solicitor claim spreadsheet financial information 30 june 2006 provided respondent gave rise misleading deceptive conduct however opinion mean claim misleading deceptive conduct relation spreadsheet invented purpose supporting proceeding applicant solicitor letter written response demand first respondent necessarily therefore haste know entitled know instruction given applicant solicitor 13 16 november 2007 whatever instruction three day passed receipt letter demand reply applicant solicitor would chance investigate thoroughness circumstance surrounding purchase business accept letter support finding claim spreadsheet relied upon falsely made third matter upon respondent relied applicant statement claim filed 24 december 2007 first statement claim proceeding commenced first statement claim number matter raised pursued amended statement claim filed 17 december 2008 second statement claim nothing opinion inferred failure applicant present claim time applicant solicitor changed may solicitor applicant thought would applicant interest narrow case issue subject trial rather attempt pursue many complaint first statement claim simply know applicant abandoned number issue prepared infer reason abandonment issue strength present claim respondent argued first statement claim spreadsheet representation referred failure provide information relating month march april may june 2007 second statement claim complaint includes additional month january february 2007 contended first statement claim odds second applicant evidence trial effect receive january february 2007 actual sale figure respondent apparent inconsistency allegation first statement claim case presented trial respondent pointed second applicant claimed trial receive actual sale figure january february 2007 made complaint first statement claim difficulty however relying upon inconsistency evidence recent invention present claim court cannot know instruction given applicant solicitor inquiry solicitor made prior filing statement claim prepared infer reason pleading first statement claim applicant claim lack credibility fourth criticism relates second applicant allowing finance application made finance broker mr coombes application contained two matter true would known second applicant untrue one related profitability business acquired would misled reader refer application later detail application reflects adversely second applicant credit second applicant good witness evasive answer question directly contradicted number occasion evidence sometimes became confused said gained impression concerned reason question asked answered case harm also tried argue case witness box allowed document go forward purpose obtaining finance included two misrepresentation one material would misled financier evidence must also treated caution prepared accept evidence inconsistent contradicted witness credit neither two party gave evidence satisfactory witness made cardinal mistake thinking necessary argue case witness box rather leaving lawyer trouble answering question directly result appeared somewhat evasive cannot therefore resolve matter preferring evidence one party therefore absence documentary evidence relation principal issue absence clear preference evidence one non corporate party matter must resolved reference evidence witness called trial applicant called mr peter guthrie employee john osborne associate pty ltd retained second applicant carry due diligence inquiry relation business acquired satisfied mr guthrie honest witness attempting assist court however evidence conflict material matter evidence witness called respondent mr fernihough evidence cannot reconciled reason explain reached conclusion mr guthrie evidence conflict mr fernihough evidence mr guthrie evidence error mean attempt part mislead think simply faulty recollection applicant called two witness damage m mei ching chek prepared financial account first applicant acquisition business damage assessed would reason accept evidence mr andrew john gilmour expert accountant gave evidence relation value goodwill purchased first applicant may said mr gilmour accept evidence respondent called number witness one employed first respondent relevant time time trial notwithstanding relationship first respondent thereby second respondent detect witness evidence affected employment relationship mr fernihough administration manager first respondent responsibility managing account first respondent employed first respondent since 1996 relevant time responsibility providing first respondent agent gmo financial information relation business subsequently acquired first applicant thought mr fernihough good witness gave evidence directly confidently confidently evidence support evidence second respondent evidence confirms evidence second respondent accept second respondent evidence regard mr fernihough evidence inconsistent mr guthrie evidence material particular relating provision financial information mr guthrie 23 march 2007 said evidence irreconcilable one hand mr fernihough said gave financial information mr guthrie day hand mr guthrie said receive information evidence due course discus think mr fernihough evidence preferred evidence mr guthrie matter respondent pleaded paragraph 12 3 defence financial information provided 21 march 2007 issue trial indeed nothing turn difference find financial information provided 23 march 2007 respondent called mr michael coombes employed southshore finance broker produce document called later give evidence produced applicant application commonwealth bank australia bank prepared seeking finance acquisition business apparently submitted time march 2007 document important two respect application put bank disclose true financial position business acquired contain recent financial information relating business understanding evidence known second applicant fact recent financial information given bank may inferred second applicant knew bank would financed acquisition application form would misled bank application also contained representation second applicant awarded degree master business administration untrue information second applicant provided mr coombes document prepared second applicant representation second applicant qualification would also misled bank accept mr coombes evidence evidence course throw doubt reliability second applicant evidence m dellene latimer regional manager first respondent relevant time responsibility overseeing running six retail store carrying administrative duty first met second applicant march 2007 osborne park store showed around store said member staff told second applicant presence store quiet pointed lack stock later time private discussion second applicant lasted 15 minute told three thing needed addressed stock staff advertising told business insufficient stock insufficient advertising employed first applicant purchase gave evidence conversation second applicant purchase business left employment may 2008 accept evidence mr goodwin director gmo together mr kerry hehir listed abacus retail business sale request second respondent gmo agent respondent 1 march 2007 mr fernihough emailed mr hehir another director gmo sale report period 1 january 28 february 2007 mr goodwin said time unaware information provided gmo say aware information provided gmo time gmo required subpoena produce file held first respondent november 2007 mr goodwin said information retained file information consequently included 9 march 2007 mr goodwin sent email second applicant full profile abacus business included brochure together document headed retail gl acct total business store trading account 2003 october 2006 spreadsheet profit loss forecast business cloister square store consolidated profit loss spreadsheet 13 march 2007 sent email second applicant profit loss statement six month 31 december 2006 business general individual store include sale report 1 january 28 february 2007 meant second applicant receive date information time mr goodwin later involved number meeting second respondent mr fernihough second applicant remembered three meeting 15 16 19 march 2007 accept evidence supported second respondent evidence mr hehir employed vendor agent sale abacus business second applicant said gmo receive document providing information abacus business directly mr fernihough could recall document could recall meeting second applicant 1 march 2007 apparently received document mr fernihough sale report 1 january 2007 28 february 2007 give mr goodwin placed file mr goodwin unaware existence failure mr hehir place relevant documentation file surprising also surprising poor recollection event end evidence assistance statement mr cyril martin also tendered system manager employed abacus calculator wa pty ltd responsible inter alia distributing sale report mr martin said daily monthly sale report 24 april 2007 provided second respondent second respondent request meeting second respondent mr fernihough second applicant 26 april 2007 said gave three copy report second respondent evidence important accepted support respondent claim provide first applicant current financial information concerning business 24 april 2007 applicant counsel seek cross examine evidence challenged accept evidence mr adam burnie former manager abacus store cloister square said indicated second applicant visit store stock low sale business would fix advertising order improve sale accept evidence mr mark burnie employed senior sale manager abacus calculator wa pty ltd involved business purchasing marketing decision sale said also told second applicant second applicant took store stocking store advertising needed accept evidence eventsit may assumed unless stated otherwise accept established uncontroverted fact follow shall make express finding evidence either unclear dispute second applicant also director sanguine group pty ltd operated profitable ranger outdoors franchise canning vale perth since december 2004 may 2006 mr fernihough created document called winforecast financial year commencing 1 july 2006 ending 30 june 2007 purpose providing first respondent banker obtain overdraft facility document predecessor spreadsheet included brochure supplied second applicant 2007 around late may 2006 second respondent told mr fernihough wanted sell abacus retail side company time first respondent operated number business apart abacus retail business including photocopy sale division photocopying service division computer service division dictation division school division last business involved first respondent selling calculator school second respondent told mr fernihough contact gmo ascertain whether would able list retail business first respondent sale june july 2006 mr fernihough contacted met mr hehir gmo purpose listing business sale time second respondent overseas mr fernihough provided mr hehir superficial information business second respondent returned overseas september 2006 asked mr fernihough start putting together information gmo requested investigate sale abacus retail time first respondent used accounting software package called pronto pronto software package track purchase sale expense information stored use code specified information entered store information related 14 december 2006 second respondent appointed gmo agent sell business mr fernihough provided gmo profit statement store retail support 3 year 30 june 2006 period 1 july 2006 31 october 2006 summary profit statement store retail support 3 year 30 june 2006 period 1 july 2006 31 october 2006 mid january 2007 mr hehir requested mr fenihough provide gmo breakdown monthly cost store mr fernihough produced document winforecast used internally determine cashflows figure document provided included actual sale store retail business october 2006 also included forecasted expense included predecessor document created purpose production bank 1 february 2007 mr fernihough requested mr hehir reconsider budgeted cost business cloister square store mr fernihough recognised error budget already supplied offered produce budget respect cloister square store mr hehir february 2007 mr fernihough prepared document set sale expense represented profit loss statement period 1 july 2006 31 december 2006 23 february 2007 mr fernihough emailed document mr hehir gmo document described net profit 31 december 2006 149 419 233 022 le corresponding period 31 december 2005 1 march 2007 mr fernihough created two excel spreadsheet set sale abacus retail business period 1 january 2007 28 february 2007 emailed mr hehir day message please find sale figure january february said earlier document forwarded mr goodwin prepared brochure later sent second applicant mr hehir explained statement document passed mr goodwin document created mr fernihough referred item gft gft acronym glenn ford tax sum added internally cost wholesale good order deter staff offering great discount product retail customer idea condition staff give discount would eat gft discount price good wholesale cost good 8 march 2007 mr fernihough emailed mr hehir description gft worked wrote kerrythe way pricing adjustment work underwe buy 30 notebook 1500 00 eawe cost say 1700 00 ea creates paper profit 200 00 per unitthe stock transferred store 1700 00 ea sold say 1900 00 easo created profit retail support shown pricing adjustment 6000 00and gross profit store 6000 00if costed stock gross profit deal would 12000 00i hope clarifies procedurephil fernihoughin early 2007 second applicant decided ought acquire business operate addition ranger outdoors business canning vale end contacted mr goodwin gmo informed looking business purchase 9 march 2007 mr goodwin emailed second applicant enclosing full profile business known abacus computer technology email contained brochure prepared gmo agent vendor business described brochure abacus computer technology long established manufacturing supply company also retail service component specialises computer equipment multiple retail outlet spread throughout city metro area business strong infrastructure would benefit focused experienced retailer business operating since february 1981 owned current owner 25 year business many different product service laptop printer scanner calculator software photocopiersthe business 10 000 customer use yellow page internet advertising newspaper advertising build customer base sale business initiated mean counter phone enquiry fax order internet referral business strong growth prospect greater focus owner retail section business product notebook digital camera gprs product mp3 player etc carried sale continuing increase particularly notebook brochure said business employed 17 person carried six different location perth suburb perth included brochure number financial document date financial information gmo file first document entitled retail gl acct total retail gl document disclosed profit business three financial year ending 30 june 2006 profit including 31 october 2006 relevantly brochure disclosed business made profit 811 483 financial year ending 30 june 2006 profit 176 203 period 1 july 2006 31 october 2006 document disclosed business recorded sale period 1 july 2006 31 october 2006 2 496 951 brochure also included separate trading account store period retail gl document retail gl document summary separate trading account store also enclosed brochure document spreadsheet entitled abacus calculator w pty ltdretail divisionconsolidated profit lossthe spreadsheet contains actual sale store period 1 july 2006 31 october 2006 include actual expense incurred period include sale period 1 november 2006 28 february 2007 notified gmo 1 march 2007 necessary set spreadsheet importance proceeding document relied plea paragraph 12 15 statement claim said support first second representation upon applicant rely jul 06 aug 06 sep 06 oct 06 nov 06 dec 06 jan 07 feb 07 mar 07 apr 07 may 07 june 07 total turnoversales594 000697 000716 000482 000658 000658 000658 000658 000806 0001 014 000830 000775 0008 546 000594 000697 000716 000482 000658 000658 000658 000658 000806 0001 014 000830 000775 0008 546 000direct costs501 000573 000588 000405 000544 000544 000544 000544 000688 000865 000706 000662 0007 164 000501 000573 000588 000405 000544 000544 000544 000544 000688 000865 000706 000662 0007 164 000gross profit93 000124 000128 00077 000114 000114 000114 000114 000118 000149 000124 000113 0001 382 000overheadsadvertising23 00026 00030 00050 00050 00060 00060 00040 00040 00035 00030 00050 000494 000bank charge 100350 600 1 050cleaning1301301301301301301301301301301301301 560consultancy fees9001 2001 2001 2001 3001 5001 5009001 2009001 2001 00014 000credit card charges5 5505 5505 5505 5505 5505 5505 5505 5505 5505 5505 5505 55066 600debt collection cost7307307307307307307307307307307307308 760delivery costs808013013018018080180180801801801 660general expenses7207207207207207207207207207207207208 640insurance2 3502 3502 3502 3502 3502 3502 3502 3502 3502 3502 3502 35028 200ge interest free charges2 6402 6402 6402 6402 6402 6402 6402 6402 6402 6402 6402 64011 680legal fees1 0001 0001 0001 0001 0001 0001 0001 0001 0001 0001 0001 00012 000motor vehicles2 0712 0712 0712 0712 0712 0712 0712 0712 0712 0712 0712 07124 852payroll tax3 7203 7203 7203 7203 7203 7203 7203 7203 7203 7203 7203 72044 640postage2502502502502502502502502502502502503 000provision annual leave4 4404 4404 4404 4404 4404 4404 4404 4404 4404 4404 4404 44053 280recruitment costs2 5002 5002 5002 5002 5002 5002 5002 5002 5002 5002 5002 50030 000rent39 97039 97039 97039 97045 08845 08845 08845 08845 08845 08845 08845 088520 584power charges2 5602 5602 5602 5602 5602 5602 5602 5602 5602 5602 5602 56030 720security system 1 220 1 220 1 220 1 2204 880rates taxes1 1051 1051 1051 1051 1051 1051 1051 1051 1051 1051 1051 10513 260levy charges8008008008008008008008008008008008009 600repairs maintenance7007007007007007007007007007007007008 400rent allocation3003003003003003003003003003003003003 600stationery2 9002 9002 9002 9002 9002 9002 9002 9002 9002 9002 9002 90014 200staff amenities9090909090909090909090901 000subscriptions3753753753753753753753753753753753754 500superannuation3 6403 6403 6403 6403 6403 6403 6403 6403 6403 6403 6403 64043 680telephone4 0504 0504 0504 0504 0504 0504 0504 0504 0504 0504 0504 05048 600data communications1 9451 9451 9451 9451 9451 9451 9451 9451 9451 9451 9451 94523 380salaries50 36750 36750 36750 36751 56751 56751 56751 56751 56751 56751 56751 567614 004158 883162 183167 453186 330190 051204 121202 801182 301184 421177 201172 601193 6212 884 970trading profit 65 883 38 183 39 453 109 333 79 051 90 121 88 801 68 301 66 421 28 201 48 601 80 621 802 970 expense income extended warranty 39 200 39 200 39 200 39 200 39 200 39 200 39 200 39 200 39 200 39 200 39 200 39 200 470 400 income 3 000 3 000 3 000 3 000 3 000 3 000 3 000 3 000 3 000 3 000 3 000 3 000 36 000 advertising rebate 909 2 660 4 875 940 682 10 066 rebate received 11 600 300 28 000 5 300 2 600 30 000 19 000 2 000 6 000 25 000 119 800 commission 7 380 7 380 7 380 7 380 7 380 7 380 7 380 7 380 7 380 7 380 7 380 7 380 88 560 61 180 49 880 78 489 57 540 52 180 69 580 68 580 56 455 55 580 49 580 50 520 75 262 724 826 net profit 4 703 11 69739 036 51 793 26 871 20 541 20 221 11 846 10 841 21 3791 919 5 359 78 144 abnormal income expense pricing adjustments22 00045 00050 00040 00080 00080 00040 00080 00080 00090 00080 00040 000727 00022 00045 00050 00040 00080 00080 00040 00080 00080 00090 00080 00040 000727 000operating profit17 29756 69789 036 11 793 53 12959 45919 77968 15469 159111 37981 91934 641648 856net profit abnormals17 29756 69789 036 11 793 53 12959 45919 77968 15469 159111 37981 91934 641648 856cumulative17 29771 994161 030151 237204 366263 825283 604151 750420 917512 396654 215648 856648 856because period time address spreadsheet clearly announces budget forecast historical document although actually say spreadsheet includes actual sale business period july 2006 end october 2006 however might inferred reading spreadsheet would conclusion reader would make reader read spreadsheet conjunction retail gl document total sale period correspond total sale retail gl document document also includes actual purchase 31 october 2006 spreadsheet includes projected sale purchase period 1 november 2006 30 june 2007 spreadsheet includes business overhead respect budgeted forecasted figure rather actual figure whole financial year actual overhead period 1 july 2006 31 october 2006 incorporated spreadsheet easily discerned reading document spreadsheet therefore includes gross profit measured actual sale cost purchase business period 1 july 2006 31 october 2006 otherwise spreadsheet includes projection forecast mean spreadsheet disclose actual net profit period 31 october 2006 spreadsheet therefore limited value however net profit period gleaned retail gl document spreadsheet therefore described budget forecast except actual figure sale purchase limited period 1 july 2006 31 october 2006 even though document presented second applicant 9 march 2007 could thought spreadsheet contained actual information described indeed second applicant suggest otherwise spreadsheet forecast net profit year 648 856 based upon actual gross profit period 1 july 2006 31 october 2006 forecast sale purchase period 1 november 2006 30 june 2007 forecast overhead whole financial year spreadsheet budget gross profit month financial year total gross profit forecast 1 382 000 month business overhead exceeds gross profit budget assumes business incur trading loss 802 970 spreadsheet assumes business receive income apart income way sale receiving extended warranty income rebate commission totalling 724 826 income sufficient make business profitable however forecast business receive pricing adjustment value 727 000 make business profitable spreadsheet explain business receive income pricing adjustment spreadsheet document upon applicant case rest applicant case spreadsheet misrepresented profitability business acquired spreadsheet forecast pleaded paragraph 13 1 15 1 statement claim sale would 658 000 period january february 2007 806 000 march 2007 1 014 000 april 2007 said second respondent mr fernihough said predecessor document first prepared may 2006 updated actual sale purchase recorded month month stage presented bank second respondent attempted dismiss document unimportant would concede document intended reliable also said intended bank rely upon document notwithstanding provided bank reject evidence accept mr fernihough evidence effect predecessor document originally created purpose submission bank purpose bank rely upon particular find particular document included brochure prepared response request mr hehir gmo show budgeted expense period 1 july 2006 30 june 2007 budgeted sale profit period second applicant said read brochure particular spreadsheet noted time contained financial information abacus october 2006 actual result information following month last page projection noted financial information disclosed profit financial year 2005 2006 811 483 profit 176 203 information spreadsheet retail gl document spreadsheet disclosed profit 151 237 31 october 2006 inclusion income pricing adjustment based upon budgeted expense 31 october 2006 actual expense spreadsheet forecast net profit year 648 856 13 march 2007 second applicant met mr goodwin mr fernihough second respondent first respondent gordon street premise second applicant say meeting occurred gmo office however accept mr fernihough evidence meeting occurred first respondent premise mr fernihough explained second applicant first respondent unusual pricing structure first respondent artificially increased cost stock gft explained gft manner described mr fernihough also explained second applicant structure abacus business abacus business retail business first respondent profit loss statement provided store within retail business division profit loss could attributed one store allocated retail support division business second respondent said thinking selling retail business many year never followed said away business extensively previous twelve month absence affected sale profit advertising stock level retail store second applicant told mr goodwin second respondent taken foot pedal last six month business needed new owner second applicant asked mr goodwin secure date financial information mr goodwin said would speak second respondent mr fernihough obtaining date figure second applicant requested date financial information opinion recognised paucity information contained spreadsheet included brochure 13 march 2007 mr goodwin sent second applicant financial information relating first half year trading 31 december 2006 document sent second applicant included individual trading result five store together trading result head office recipient gft also enclosed summary total trading figure 31 december 2006 first respondent financial system pronto allowed first respondent know daily weekly monthly basis retail sale first respondent could know beginning month sale previous month indeed 1 march 2007 mr fernihough emailed mr hehir sale report 1 january 28 february 2007 however information provided brochure sent second applicant 9 march 2007 second applicant requested date financial information received mr goodwin provided applicant established plea paragraph 13 2 15 2 statement claim document sent mr goodwin second applicant disclosed sale first half year 2006 order 2 797 713 le sale first half year 2005 net profit reduced 382 441 period 1 july 2005 31 december 2005 149 419 period 1 july 2006 31 december 2006 reduction 233 022 importantly net profit half year 149 419 significantly le budgeted net profit spreadsheet 263 825 sale november 633 274 december 529 465 compared budgeted sale spreadsheet 658 000 month day second applicant emailed mr goodwin saying figure looked lot worse expected net profit period 150 000 asking whether would mean expected profitability current financial year 300 000 wrote thanks jim going figure moment look lot worse expected unless reading correctly six month dec 06 net profit 150k mean expected profitability financial year 300k please call able also still sic find advert yellow page find arrow everyone else abacus second applicant relied comment made email later financial information provided 31 december 2006 rather spreadsheet second applicant said evidence sale 31 december 2006 lower forecasted brochure said seemed according sale december 100 000 le also thought consistent second respondent lost interest business find second applicant received document 13 march 2007 information disclosed actual net profit 149 419 31 december 2006 longer put reliance information contained spreadsheet 13 march 2007 information spreadsheet longer relevant particular thereafter rely upon accuracy budgeted sale figure period 1 january 2007 30 june 2007 day second applicant sent email mr goodwin querying pricing adjustment december 2006 mr goodwin reply either email practice comment upon financial detail provided vendor second applicant visited first respondent business store 10 15 march 2007 time 13 15 march 2007 second applicant received financial information sent mr goodwin 13 march 2007 second applicant prepared working paper assist deciding whether purchase business working paper reflect three level profit 811 483 business profit financial year ending 30 june 2006 648 856 budgeted profit spreadsheet 300 000 working paper second applicant assessed goodwill assumed level profit 750 000 profit 811 483 provision borrowing expense interest like 185 000 would provide net profit 628 483 400 000 profit 648 856 provision borrowing expense 150 000 would provide net profit 498 856 100 000 profit 300 000 borrowing expense would provide net profit 206 000 second applicant cross examined document due course second applicant offered respondent accepted sum 100 000 goodwill put second applicant cross examination assessed profitability business financial year 30 june 2007 300 000 honour assessment value goodwill provided projection page 40 accurate second applicant trying work much would go towards goodwill based yes honour well answer question second applicant sorry honour answer question second applicant honour document accurately recall assessment value goodwill provided forecast made second applicant six hundred forty eight yes honour yes thank mr zilko right going right hand column satisfied forecast going made calculated amount goodwill based 300 000 profit second applicant mr zilko answer question pretty straight forward question satisfied 300 000 true profit likely profit 648 856 reduced goodwill 100 000 second applicant confirm profit 300 000 yes mr zilko basis offered 100 000 worth goodwill second applicant yes mr zilko therein lie answer trial mr metaxas well competent answer question honour well answer question mr zilko therein lie seed idea relied assessment 300 000 profit projected figure second applicant confirm profitability 300 000 time mr zilko thank could rely projected figure could said could confirm profit 300 000 time second applicant december 31 december could confirm mr zilko stop minute mr aziz profit december 150 000 wrote business broker showed u email put evidence doubled figure second applicant correct mr zilko get profit 300 000 something told morning nobody second applicant yes correct mr zilko basis concluded appropriate offer goodwill 100 000 second applicant yes mr zilko 400 000 mr aziz correct offer 400 000 stage second applicant mr zilko would offered 400 000 perhaps mr aziz satisfied projected figure true correct read read look second applicant profitability came six month 300 mr zilko answering question mr aziz profitability business satisfied profitability business per projection 648 856 might minded offer 400 000 goodwill second applicant possible mr zilko satisfied projection told could satisfied honour one question time mr zilko mr zilko sorry honour honour one question time mr zilko sorry satisfied profit 648 856 second applicant mr zilko thank rely projected figure satisfied profit correct second applicant talking mr zilko let get straight said getting transcript able quote back honour later trial second applicant yes mr zilko told moment ago amount profit could sure 300 000 correct second applicant could verify profitability 31 december 150 doubled look would offer business based offered million mr zilko right second applicant knowing still got amount look forward yet proven mr zilko rely doubled figure 150 get 300 relied profit 150 second six month mr aziz second applicant thing confirm past six month predict happen next six month mr zilko let ask way purpose making offer assume profit second six month january jun 07 would 150 000 second applicant assumed calculation expected lot mr zilko well put mr aziz figure bear formed view independently even accountant due diligence profit business regardless anything else written anywhere 300 000 full financial year much conceded second applicant doubling knew six month yes mr zilko doubled let put really fundamental speak profit 150 000 first six month proved figure agreed second applicant yes second applicant prepared working paper far relate offer subsequently made assuming net profit 31 december 2006 order 150 000 doubling full year net profit took base figure document provided 13 march 2007 disclosed net profit 149 419 add figure projection spreadsheet second half financial year budgeted sale rest financial year simply doubled 31 december 2006 net profit figure purpose ascertaining likely profit financial year value business goodwill time 13 march 2007 second applicant rely upon information contained brochure spreadsheet suggestion financial document showed net profit 149 419 31 december 2006 way inaccurate find time second applicant prepared working paper time 13 march 2007 later 15 march 2007 offer made business second applicant believe business level profitability represented brochure particularly forecast sale spreadsheet find 15 march 2007 second applicant placed reliance ever relied information contained brochure meeting occurred 15 march 2007 second applicant said day met mr goodwin one else second applicant said told mr goodwin wished make offer purchase business evidence chief said said mr goodwin 15 march 2007 looked number see profit 150 000 6 month 300 000 year valuing business basis second applicant claim recollection meeting speaking second respondent contract signed hand second respondent mr fernihough mr goodwin gave evidence three met second applicant 15 march 2007 second respondent said explained second applicant spreadsheet prepared winforecast bank back school calculator finance requirement budgeted figure reflection current retail sale overhead said second applicant even document intended internal use pointed second applicant actual november december 2006 profit loss sale figure lower winforecast spreadsheet figure none overhead adjusted original budgeted cash flow figure month mr fernihough recollection meeting support second respondent said second respondent explained salam document part cash flow budget prepared back school funding contain actual sale october 2006 budgeted figure reflect current retail sale dropped mr goodwin said memory said accept evidence given second respondent mr fernihough fact meeting said quite likely second respondent mr fernihough would said something effect knew second applicant received november december figure mr fernihough also provided mr hehir january february sale figure expecting document supplied second applicant nothing second respondent mr fernihough said would surprise second applicant view email sent mr goodwin 13 march 2007 also accept mr goodwin evidence fact meeting reject first applicant evidence met mr goodwin second respondent mr fernihough present meeting second applicant denies second respondent told meeting later time sale figure brochure november 2006 later month budgeting purpose forecast reject evidence find meeting 15 march 2007 second applicant second respondent mr fernihough mr goodwin present second applicant told spreadsheet budget forecast budgeted figure reflection current retail sale overhead actual november december profit loss sale figure lower spreadsheet figure overhead spreadsheet adjusted budgeted figure reflect current retail figure dropped misrepresentation spreadsheet relation budgeted sale figure period 1 january 2007 30 june 2007 contrary earlier finding second applicant opinion budgeted sale figure could relied upon told clear term 15 march 2007 sale figure could relied upon reflect current retail figure dropped afternoon mr fernihough emailed mr goodwin providing detail price adjustment relating computer build cost presumably requested meeting later day mr goodwin sent second applicant draft offer purchase abacus retail business second applicant signed evening 15 march 2007 first agreement returned mr goodwin following day first agreement form areal estate institute western australia standard form agreement sale business going concern sale agreement offer purchase business made second applicant behalf company entity incorporated formed purpose transaction offer 1 million made goodwill 100 000fixtures 150 000stock trade 750 000the offer reflected assessment gross profitability 300 000 lowest three figure addressed working paper second applicant working paper ascribed figure 100 000 goodwill business assuming profit borrowing expense like 300 000 first agreement included clause 24 relating seller representation clause 24 relevantly provided seller represents intent representation shall survive settlement date agreement settlement e representation made seller seller agent respect past turnover expense profit loss financial information accurate best seller information belief h information known seller relating business agreement material known buyer disclosed buyer first agreement said entire agreement first agreement also subject number condition including finance importantly agreement conditional upon purchaser granted access first respondent financial information obtaining due diligence report clause 1 annexure provided agreement conditional upon vendor supplying purchaser within 7 day agreement copy account book business activity statement financial information relating business called financial information purchaser accountant may reasonably require purchaser may absolute discretion give written notice intention terminate agreement within 14 day receipt financial information dissatisfied report accountant respect financial information event agreement shall end vendor shall forthwith return purchaser purchase monies paid pursuant agreement offer accepted first respondent counter offer made much term original offer except different term relation computer software none relevant second applicant received counter offer mr goodwin 16 march 2007 accepted counter offer 19 20 march 2007 signing first agreement gmo office time john osborne associate pty ltd john osborne second applicant accountant 20 march 2007 second applicant informed mr tucker partner firm mr guthrie employee accountant firm signed first agreement purchase retail business contract subject due diligence second applicant referring clause 1 annexure sale agreement second applicant told mr tucker mr guthrie wished john osborne carry due diligence inquiry accountant agreed carry inquiry mr guthrie delegated perform exercise purpose second applicant instructing john osborne satisfy profitability business acquired value business time second applicant opinion level profitability greater 300 000 taking account cost finance specific instruction given second applicant accountant particular mr guthrie due diligence inquiry carried meeting lasted 30 minute mr guthrie evidence provided brochure initial meeting received time started due diligence inquiry accept evidence regard mr guthrie possession spreadsheet information contained spreadsheet commenced inquiry 21 march 2007 second applicant second respondent mr goodwin mr fernihough met discussed pronto system software program business used keep track sale discussed business might operate control second applicant meeting set following day visit osborne park store see could used business head office second applicant said mr martin also present meeting 21 march 2007 mr martin said statement meet second applicant prior meeting left second applicant met second respondent mr goodwin mr fernihough accept mr martin evidence like evidence unchallenged second applicant said discussed profit loss december 2006 increase profit level back level previous year said discussion meeting financial performance since december 2006 ask date financial information mr fernihough said second applicant incorrect say discussed profit loss december 2006 increase profit meeting said topic discussed meeting 15 march 2007 found second applicant discussed financial information second respondent mr fernihough presence mr goodwin 15 march 2007 mr fernihough recollection likely correct would need discus matter given previously discussed 15 march 2007 although much turn dispute reason given earlier prefer mr fernihough evidence day mr tucker emailed mr goodwin requesting information order carry due diligence inquiry discussing salam afternoon item wish look due diligence copy tax return reconcile profit loss figure providedemployeeswhat annual leave long service leave provisionsany worker compensation problem aroundare insurance issue employeeswe need look wage record verify trading statementshow bonus issued salesverification extended warranty gift voucher redeemedverification sale sale invoice track discount rebate structureswe need look pricing adjustmentslook selection purchase track onto pronto system flow bank stock etcevaluate control stock rotationstock ageing ensure stock saleable business purchasewe would like look last 12 month february 2007 problem tell salam meeting tomorrow morning mr tucker wanted satisfy profit loss figure reliable purpose request income tax return also wanted verify sale gross profit sale course matter would envisaged standard due diligence report 22 march 2007 second applicant mr fernihough m latimer met first respondent business osborne park store second applicant given tour premise opportunity meet staff working store day m latimer said staff spoke second applicant turn business said business low stock mr fernihough also provided second applicant copy store asset register name suggests detailed store asset quantity item day mr fernihough also received email mr goodwin forwarding email mr goodwin received 21 march 2007 mr tucker email contained request assist salam aziz due diligence day second applicant emailed mr goodwin discussed point consideration 1 carpet joondaluphopefully getting need sic head office store complete operationalany plant included may based west perth tool build manufacturingno evidence lead content discussion second applicant refers email mr goodwin responded second applicant email day discussed point phil come back asap provided second applicant contact detail person could provide option regarding use operating system business 23 march 2007 mr guthrie met mr fernihough first respondent gordon street premise conduct due diligence inquiry point identified consideration email mr tucker 21 march 2007 discussed mr guthrie asked copy first respondent tax return mr fernihough explained first respondent carried number business tax return included detail business therefore tax return relevant mr fernihough provided mr guthrie detail employee pay store period 1 july 2006 31 december 2006 also provided mr guthrie detail employee leave store 22 march 2007 mr fernihough explained mr guthrie way example gft explained applied critical business mr fernihough said discussing pricing adjustment mr guthrie requested sale gross profit figure 28 february 2007 mr fernihough said would give monthly sale figure january couple day meeting evidence chief said printed sale report period 1 january 2007 31 january 2007 set sale retail store period said report showed cost sale gross profit pointed report gave report mr guthrie also printed report period 1 february 2007 28 february 2007 gave report mr guthrie also printed report sale month march 2007 around 20thor 21stof march 2007 gave report mr guthrie retain copy mr fernihough produced court copy document reprinted recently said figure supplied mr guthrie latest figure available although net figure stage account supplier received division said handed document mr guthrie said sale still deteriorating could see said also provided mr guthrie stock hand report pronto set stock holding retail business set value stock put cross examination believed second applicant already possession january february 2007 report believed second applicant received gmo agreed put evidence relation document provided mr guthrie fabrication later put lie denied mr guthrie evidence meeting 23 march 2007 occupied three four hour included time mr fernihough left room time time copy print document mr guthrie said asked verification profit loss statement advised mr fernihough possible profit loss statement verified tax return tax return consolidated mr guthrie said given retail store trading account october 2006 spreadsheet showed facsimile date 1 february 2007 response request later information given information 31 december 2006 evidence chief address later figure mr guthrie said receive document mr fernihough said given relating january february 2007 figure searched file file aware whether second applicant received january february 2007 figure figrures seen 31 december 2006 difficult reconcile competing account adamant evidence chief neither resiled cross examination already said think mr guthrie way dishonest prefer evidence mr fernihough three reason first already supplied information january february sale figure gmo would reason supply information mr guthrie information far concerned like relevant information already available second applicant suggestion put cross examination fabricated lied provision information bolster respondent case must rejected secondly think mr fernihough better disciplined accountant mr guthrie say reluctantly think mr guthrie due diligence exercise greatest respect inadequate failed number respect address issue needed addressed allow second applicant make informed decision relation purchase business thirdly respondent contended tangible evidence showed mr guthrie account wrong mr guthrie sent second applicant email 28 march 2007 relevantly wrote hi salam obtained retail store listing 20thmarch phil fernihough stated stock worth 824 000 check show 824076 20 figure broken store attached stock valuation report email reason unexplained mr guthrie file importance email reference retail store listing 20 march mr guthrie cross examined reference conceded reference retail store listing reference profit loss statement individual store said pressed wording email might incorrect meant document received 20 march 2006 think could right would need email refer date upon document received email support respondent contention date 20 march 2007 also consistent mr fernihough evidence gave date profit loss figure mr guthrie 23 march 2007 find information mr fernihough said supplied mr guthrie supplied follows second applicant agent latest actual profit loss statement 23 march 2007 whilst party entered first agreement agreement later rescinded party second agreement executed 23 march 2007 second applicant received via email mr goodwin draft summary trade restraint consideration second applicant would apply first applicant business purchased second applicant replied asking would business logo mr goodwin replied logo could used second applicant would remain property first respondent 26 march 2007 second applicant emailed mr goodwin inquiring whether copy plant equipment list received either 27 28 march 2007 mr guthrie spoke second applicant relating interim due diligence report mr guthrie said 27 march 2007 written report second applicant said 28 march 2007 received report matter correct important mr guthrie told second applicant downturn sale order 1 1 million consequent drop profit 28 march 2007 mr guthrie provided second applicant interim report headed due diligence sub headed note 2 00pm 28 march interim report identified step taken verify business financial record 31 december 2006 addressed mr tucker urgent fax phil fernihough wed 21 03 07 question copy tax return reconcile profit loss figure provided answer available divisional figure amalgamated tax return p l report 30 12 06 supplied report rentat 238886 appears stable compared prior year prorata calculation show 99 5 prior year figure wagesin payroll system show 389 607in p l show 355 003shortfall 34 279this discrepancy would reduce net profit year 117 371profit lossretail shop report october 2006 reconcile profit loss supplied report discrepancy shortfall 6 690this discrepancy would reduce net profit year 110 681the interim report addressed number question relating employee sale purchase stock unimportant concluded general note observationsit proving difficult get date accurate verifiable information exercise accurate information stock list purchase sale data direct pronto external source spreadsheet supplied start engagement proved inaccurate credence afforded would suggest profitability business 151k halved due wage stock adjustment peter guthrie28 03 0714 hour expendedmr guthrie addressed enquiry 30 12 06 meaning 31 december 2006 profit loss section refers retail shop report october 2006 expression consistent evidence already referred relation mr guthrie 28march 2007 email report profit loss statement individual store however mr guthrie interim report addressing profit loss business october 2006 notwithstanding ambiguous reference october 2006 two adjustment make wage profit loss total 40 969 adjustment added net profit calculated seen working actual profit loss statement 31 december 2006 spreadsheet brochure finding support finding earlier made reliance put upon spreadsheet 13 march 2007 anyone 13 march 2007 second applicant mr guthrie proceeded reference profit loss statement 31 december 2006 confirmed reference figure 151 000 last sentence interim report report one would expect author indicate historical earnings assessment maintainable earnings methodology used arrive assessment mr guthrie available taxation return like first respondent abacus business part first respondent larger business concern separate financial statement business sold capable providing verification tax return might although absence taxation return separate financial statement business acquired would make enquiry difficult obvious assessment integrity profit loss figure supplied mr guthrie said spreadsheet referring interim report said inaccurate credence could put upon supplied mr fernihough shortly commenced engagement presumably 23 march 2007 said referring spreadsheet brochure challenged evidence accept evidence mr guthrie interim report show must satisfied time strong downward trend sale half year 31 december 2006 mr guthrie said ask financial information subsequent 31 december 2006 sufficient information form picture 31 december 2006 28 march 2007 mr guthrie emailed second applicant addressing detail value stock said might old stock second applicant may wish take account negotiating purchase business day mr guthrie emailed mr fernihough questioning discrepancy figure shown profit loss statement 31 december 2006 sale account abacus individual store requesting accurate profit loss statement information address discrepancy 29 march 2007 mr fernihough sent facsimile sale report warehouse revised profit loss statement december 2006 payroll report update business account mr guthrie around late march 2007 second applicant engaged southshore finance prepare finance application behalf first applicant time yet incorporated loan 940 000 finance application contained financial information relating first respondent business acquired contain date information understanding available second applicant financial application predicated income business 568 038 le commitment finance second applicant would known time return inconsistent financial information supplied quite inconsistent advice received mr guthrie interim report also inconsistent assessment made business profitability mr coombes southshore finance confirmed would relied second applicant accountant information necessary make application practice use date information provided application also contained personal information second third applicant mr coombes confirmed information supplied second applicant southshore finance previously engaged make finance application another business second applicant ranger camping outdoors application wrongly represented information supplied second applicant second applicant awarded master business administration degree application signed second applicant application contained two misrepresentation first relation profitability business serious would induce bank lend otherwise might refuse application second le serious inconsequential second applicant must made representation thought would assist obtaining finance already said reason relating witness misrepresentation application reflects badly second applicant honesty credibility second applicant contends subsequent meeting second respondent mr fernihough 3 april 2007 however wrong mr fernihough said overseas bali 30 march 2007 return australia 13 april 2007 accept evidence 3 april 2007 second applicant however meet solicitor discus trade restraint provision provided second agreement provided mr guthrie second applicant 23 march 2007 meeting second applicant solicitor provided second applicant draft trade restraint provision 4 april 2007 mr guthrie produced final due diligence report business second applicant completing report mr guthrie spoken mr osborne difficulty business maintaining profitability cash flow mr osborne discussed future profitability business apparently agreed would barely achieve break even point agreed business unlikely succeed mainly due high payroll high rent forecast financial year 30 june 2007 indicated sale 7 3 million 1 1 million le first respondent budget report published second respondent 4 april 2007 report concludes business abacus computer technology registered appropriate authority mean another party could register name use similar signage logo shop run loss caused mainly high rent high wage profit made retail support head office level highly reliant pricing adjustment commission rebate extended warranty pricing adjustment appear variable would depend level purchasing skill provide discount work business allowed become run possibly priced accordingly current owner admit need identified part business actually sold whether mr ford wish retain area business traditionally profitable industry make extremely difficult expand higher margin area report contain assessment profitability business acquired identify historical earnings future earnings make assessment maintainable earnings address value goodwill business fact goodwill however make clear shop run loss highly reliant pricing adjustment commission rebate extended warranty assessment made continued availability item level might maintained report respect author ordinary attempt due diligence second applicant give evidence chief reaction report cross examined report agreed understood import mr guthrie comment shop running loss subject relative support understood business run said business still profitable could remember whether told mr guthrie mr tucker break even report accompanied spreadsheet addressed three separate scenario profit 151 630 31 december 2006 full year profit 303 260 arrived doubling first figure adjusted profit 115 579 financial year 30 june 2007 assumes sale 675 007 le full financial year 10 april 2007 second applicant met mr guthrie mr osborne second applicant requested prepare cash flow scenario scenario took account business might run light future cash flow profitability problem outlined mr guthrie final report second applicant 13 april 2007 mr osborne wrote second applicant addressing requested scenario scenario based 10 assumption income based sale 44 month january june used actuals month income arrived sic basis cash allocated holiday pay long service leave preliminary expense included advertising line suggestion 20 000 per month comparison attached figure net gst applicable assuming assumption correct would seem business operating break even factor interest payment incurring proceeding offer need new company place registered gst claim ongoing business exemption prepared basis industry credit first instance cash basis eighth assumption brought second applicant attention business would best break even evidence relation aspect letter mr zilko told plainly factored financial obligation going make money going break even might mean dollar suppose see second applicant yes mr zilko told plainly going make money second applicant yes mr zilko ignored second applicant yes letter written mr osborne 18 january 2008 recall event day mr osborne wrote dear salamre purchase abacus calculatorson 9thof april 2007 requested peter arrange meeting object meeting held tuesday 10thof april 2007 3 u discus figure provided abacus intended run business proceed purchase meeting expressed concern sustainability sale figure change ownership discussed hire government corporate supply cautioned give lot thought proceeding looking back experience industry extremely competitive industry difficult maintain market share went figure supplied abacus agreed prepare scenario taking account reduction turnoverimproved marginsa reduction advertisingchanging telephone system skype similar achieve savingsdeleting payroll tax provision annual leave would apply new business immediatelythis exercise expressed main concern reason downturn business would continue cover overhead gave figure friday 13thapril 2007 advised would take figure advice account making decision proceed proceed discussion input final decision purchase business faithfullyjohn osbornethe second applicant acknowledged received advice said chose ignore 16 april 2007 second applicant emailed mr goodwin twice first email mr goodwin requested take action matter relation transition business head office osborne park business generally wrote jim following point discussion meeting note business name purchase abacus computer technology sanguine technology pty ltd need resume visit store asap done osborne park confidentiality clause still place position talk sale abacus computer technology others e stock taking company advertising firm etc lease document need drawn negotiated case supplier account application form filled processedosborne park head office setup get access facility prior take required setup test computer software store copy stock store inventory report printed include quantity item sold last 12 month also report produced microsoft excel format looking help stocktaking exercise sic one report happy use two separate electronic report sale inventory combine one report possible identify move head office item osborne park couple item think stationary sic abacus computer put together head office packed abacus card board box future assembly done park packaging also required site please get access electronic logo design material allow get business card stationary sic advert etc progress copy employee condition award awa etcothers please let know require anything end second email contained copy first applicant certificate registration company first applicant incorporated 13 april 2007 17 april 2007 second applicant behalf entity formed signed rescission agreement purchase business relation abacus calculator wa pty ltd rescission agreement terminating first agreement second applicant first respondent later day second applicant behalf first applicant subsequently signed second agreement real estate institute western australia standard form agreement sale business upon exactly term condition previously agreed first agreement except date settlement 30 april 2007 settlement date later extended agreement second applicant second respondent 6 may 2007 19 april 2007 second respondent signed rescission agreement 20 april 2007 second applicant emailed mr hopkins burgess rawson wa pty ltd landlord business joondalup store completed assignment proposal form requesting lease joondalup premise assigned first respondent first applicant assignment proposal form sought business plan second applicant replying behalf first applicant wrote initial focus advertising abacus computer technology well known brand public associated sale quality computer product recent time advertising non existent key area need launched urgently addition store low stock hence stock level driven owner sic focused growth success retail group 23 april 2007 second applicant visited store staff 24 april 2007 second applicant emailed mr goodwin requesting meet 26 april 2007 second applicant second respondent mr goodwin mr fernihough met mr martin evidence morning request second respondent printed number sale report provided second respondent printed end month sale report march 2007 prepared earlier april 2007 second respondent spoke mr martin daily sale report latest monthly sale report prepared 23 april 2007 said would normally prepared report previous day previous day anzac day done said prepared new daily monthly report included sale 24 april 2007 printed three copy provided second respondent evidence contested subject cross examination accept evidence find meeting occurred 26 april 2007 second respondent document mr martin said provided dispute whether second applicant provided sale report 24 april 2007 second applicant claim provided document meeting second respondent mr fernihough say second applicant provided figure mr fernihough said second respondent briefly explained salam spreadsheet tracked document supplied spreadsheet recording march 2007 figure comparison march 2006 figure spreadsheet showed sale 24 april 2007 including sale relation business spreadsheet showed sale 24 april 2007 accept respondent evidence relation issue two reason first mr martin asked provide information prior meeting would point second respondent seeking three copy document unless intended publish meeting secondly reason already given accept evidence mr fernihough generally particular issue sale march 2007 totalled 399 535 compared march 2006 sale 1 001 587 gross profit march 2007 82 114 net profit disclosed sale 24 april 2007 totalled 250 248 sale 24 april 2007 totalled 13 984 march april 2007 sale compared budgeted sale spreadsheet included brochure 806 000 march 2007 1 084 000 april 2007 thus actual march 2007 sale half budgeted sale sale nearly whole month april le quarter budgeted april 2007 sale provision information put applicant notice business acquired performing anywhere near level assumed budget satisfied meeting 26 april 2007 second applicant made aware business gross profit march 2007 sale including 24 april 2007 already found second applicant therefore first applicant rely upon spreadsheet 13 march 2007 misrepresentation made spreadsheet relating budgeted figure 1 march 2006 april 2007 misrepresentation corrected conversation 15 march 2007 provision january february 2007 sale figure 23 march 2007 mr guthrie provision march april 2007 figure second applicant 26 april 2007 misrepresentation spreadsheet could regard actual figure march april second applicant aware longer lead applicant error applicant case second applicant receive information 26 april 2006 put inconceivable second applicant would received information indicated sale le fifty per cent budgeted sale spreadsheet done nothing information agree second applicant time proceeded purchase knowing half yearly profit 149 419 budgeted figure 283 000 budgeted whole year profit 686 000 knowing january february 2007 figure significantly lower budgeted knowing mr guthrie thought real profit half year 110 000 adjustment halved knowing due diligence advice business break even regard fact advice received point time quite conceivable would press day mr goodwin emailed second applicant second respondent good afternoon glenn salamre 100 000 vendor financeplease find proposed clause agreement purchase abacus computer technology annexure cthe vendor abacus calculator wa sic pty ltd agrees provide purchaser sanguine technology pty ltd agrees take loan sum 100 000 00 utilised satisfy bank guarantee rental property settlement loan loan repayable purchaser vendor within 180 day completion settlement interest free basis payment completed timeously sic payment made within 180 day period interest calculated 10 per annum shall paid purchaser vendor loan unsecured save requirement personal guarantee secure performance loan provided abdus salam aziz laree jeanette aziz guarantee sanguine technology pty ltd _____________________signature_____________________signature_____________________signatureregardsjim goodwinon day first applicant first respondent executed agreement purchase abacus computer technology annexure c day second third applicant signed deed guarantee indemnity behalf first applicant second third applicant became guarantor first applicant 27 april 2007 second applicant emailed mr goodwin querying rent one business store morley day first applicant first respondent signed extension settlement date extending date settlement 6 may 2007 mr adam burnie former business development manager first respondent recalled meeting second applicant cloister store week two settlement said second applicant second respondent m latimer mr mark burnie meeting m latimer also confirmed meeting occur cloister store think witness speaking meeting therefore accept evidence regard meeting second applicant conversation mr adam burnie m latimer told second applicant low level stock store said advertising would need increased order improve sale second applicant took business 1 may 2007 second applicant emailed mr goodwin requesting question 6 10 email 16 april 2007 still needed answered urgently question related setting osborne park store head office report stock store access business logo copy employee employment contract agreement evidence led mr goodwin reply however day mr goodwin emailed second applicant letter regarding carpeting letter attached email produced presumably written relation carpeting morley joondalup store requested second applicant mr fernihough email appearing mr goodwin email suggests later day second applicant received email m heidi emery ronson mackinlay conveyancer acting first applicant email provided second applicant new lease condition cannington store lease attached provided evidence replying m emery second applicant wrote mr goodwin couple quick question respond back heidi think able negotiate bank guarantee rather put money stock aside form bank guarantee public liability insurance current lease current lease sic 10 000 000 whereas seeking increase 20 000 000annual increase current lease 3 new lease seeking 4 2 may 2007 mr goodwin forwarded email landlord cannington store email addressed option renewal cannington store lease provided summary essential lease term would appear new lease email requested reply following day 3 may 2007 mr goodwin sent email second applicant document requested second applicant valuation morley store 17 november 2006 party conducted stock take store 5 6 may 2007 7 may 2007 second applicant acknowledged receipt stock take value report respect store settlement occurred day although party agreed extension 6 may 2007 settlement occur 7 may 2007 nothing appears turn second applicant received settlement agent revised settlement statement sanguine technology pty ltd purchase abacus computer technology showed total amount due settlement first applicant 921 930 52 first applicant obtained loan 940 000 order finance purchase settlement mr fernihough provided invoice stock purchased first applicant value 729 766 35 8 may 2007 first respondent received 114 186 17 first applicant reason already given accept respondent provided applicant financial information 7 8 may 2007 11 may 2007 first respondent received 546 897 89 first applicant second applicant personal access business sale report week settlement 14 may 2007 second applicant emailed second respondent mr cameron hopkins ast stocktaking regarding obsolete stock business 16 may 2007 m dargie behalf second respondent provided second respondent response matter raised second applicant second respondent disputed second applicant reason longer wanting certain stock said stock necessary purpose setting display demonstration model necessary advertising purpose 17 may 2007 mr hopkins responded comment second applicant second respondent relation disputed stock emailed second respondent settlement agent noted deduction value stock 6 048 71 order taking account comment made 19 may 2007 mr fernihough provided first applicant invoice 729 766 35 total amount stock purchased first applicant first respondent 28 may 2007 request second applicant mr mark burnie obtained business sale figure period march may 2007 emailed second applicant june 2007 mr mark burnie provided second applicant spreadsheet setting monthly sale business may 2006 april 2007 6 june 2007 management meeting attended second applicant m latimer mr mark burnie another staff member minute meeting showed forecast sale figure date 6 097 453 82 actual sale figure 5 589 332 67 3 august 2007 mr fernihough said phone conversation second applicant second applicant mentioned wanted finalise issue regarding payment staff long service leave final settlement figure paid mr fernihough asked second applicant email issue wanted resolved could finalise 6 august 2007 mr fernihough wrote second applicant referring conversation 3 august 2007 conversation friday 3rdof august regarding outstanding issue relationship purchase abacus retail store request email list concern sic finalised soon possible yet received list issue would appreciate soon possible sic trying speak heidi ronson mckinny sic ascertain final settlement detail also issue requested resolve despite numerous message left return mine glenn call 7 10 august 2009 number email passed mr fernihough m emery attempt finalise settlement first applicant first respondent email evidenced disagreement first respondent liable pay towards certain employee long service leave entitlement 13 august 2007 mr fernihough emailed mr goodwin copying second respondent second applicant m emery email jimas aware sic endeavouring obtain final figure heidi since 7thmay 2007 settle outstanding issue including payment alex iden entitlement pro rata long service leave forward fund due salam aware salam yet signed lease morley due outstanding issue addressed require outstanding issue including final settlement figure provided 4 00pm tuesday 14thaugust 2007 information finalised appoint another settlement agent charge ronson mackinlay conveyancer cost incurred instigate legal action party involved withn sic sale settlement retail store hoping issue finalised efficient amical sic manner avoid possible litigation kind regardsphil fernihoughon 16 august 2007 m emery emailed revised settlement statement mr fernihough second respondent mr goodwin settlement statement disclosed first applicant indebted first respondent sum 111 294 40 taking account settlement adjustment sum paid 23 august 2007 revised settlement statement first applicant credited sum 7 462 08 exclusive gst may 2007 rental outgoings abacus business cloister square store mr fernihough said sum paid first respondent invoice supported evidence mr fernihough said amount credited first respondent first applicant provided revised settlement statement mr fernihough said amount owed first applicant first respondent settlement 320 991 91 calculated follows stock excess 500 000 229 766 35less reduction ast 6 048 71plus digital tuner 748 00plus bank guarantee 28 500 00plus vendor finance 53 102 11plus error relating cloister credit 14 924 16total 320 991 91the amount paid second applicant continued communication second respondent mr fernihough order finalise payment stock payment employee employed previous business continued work first applicant long service leave payment rent store 12 november 2007 second applicant emailed mr guthrie twice first email wrote peteri note following point interim report questionverification sale sale invoice track discount andrebate structuresanswer sample sale invoice worked tracking back purchase invoice discount price adjustment appear ad hoc basis appear standard process total business profitability structured around discount price adjustment critical person future business purchasing manager note made relation rebate structure e supplier much second email wrote peter evidence substantiation cost item shown due diligence appears lot item gft still copy note supplier cost item would like review paid 13 november 2007 mr fernihough wrote first applicant demanding payment 320 991 91 plus interest 10 per day 8 november 2007 date amount due pursuant contract sale evidence adduced mr gilmour rsm bird cameron actual sale period july 2006 april 2007 compared sale figure spreadsheet figure calculated shortfall percentage monthmonthlyactual salesbrochure shortfall shortfall percentage jul 06589 759594 000 4 241 1 aug 06695 246697 000 1 754 0 sep 06717 030716 0001 0300 oct 06481 787482 000 213 0 nov 06630 746658 000 27 254 4 dec 06516 036658 000 141 964 22 jan 07523 155658 000 134 845 20 feb 07505 545658 000 152 455 23 mar 07399 535806 000 406 465 50 apr 07311 3561 014 000 702 644 69 table 2 comparison actual result sale brochure figuresthe figure actual sale november december vary slightly pleaded figure variation immaterial find second applicant provided actual sale march 2007 26 april 2007 figure mr gilmour refers second applicant provided sale including 24 april 2007 264 232 sale whole april 311 356 24thof april 2007 wednesday four trading day april assuming trading saturday first 20 trading day april sale 264 232 average 13 210 last four trading day sale 47 124 average 11 781 material difference average sale last four day trading april would impacted decision buy business sale already dropped significantly mr gilmour evidence show application ofsection 52section 52of tpa provides corporation shall trade commerce engage conduct misleading deceptive likely mislead deceive contravention ofs 52will occur whether conduct intended mislead deceive hornsby building information centre pty ltd v sydney building information centre 1978 hca 11 1978 140 clr 216at 228 section concerned fault parkdale custom built furniture pty ltd v puxu pty ltd 1982 hca 44 1982 149 clr 191 conduct misleading deceptive induces error capable inducing error conduct must identified question determined whether conduct considered objectively misleading deceptive likely mislead deceive sense induces likely induce error case conduct examined pleading evidence show representation made respondent document supplied second applicant constitute first second representation pleaded paragraph 13 15 statement claim respondent submitted conduct mislead deceive unless representee labour erroneous assumption taco co australia inc v taco bell pty ltd 1982 fca 136 1982 42 alr 177at 200 campomar sociedad limitada v nike international limited 2000 hca 12 2000 202 clr 45at 104 submission must accepted false representation made party corrected party act party detriment reliance upon representation party cannot claim party made representation caused party loss damage applicant claim damage pursuant tos 82of tpa section 82provides person suffers loss damage conduct corporation done contravention ofs 82may recover amount loss damage claim damage contravention ofs 82the applicant must prove loss damage caused conduct contravention wardley australia ltd v westernaustralia 1992 hca 55 1992 175 clr 514 case mason cj said 525 statutory cause action arises plaintiff suffers loss damage contravening conduct another person curious word use one might expected mean reason consequence result word clearly express notion causation without defining elucidating situation 82 1 understood taking common law practical common sense concept causation recently discussed court inmarch v stramare e h pty ltd 1991 hca 12 1991 171 c l r 506 except far concept modified supplemented expressly impliedly provision act parliament intended say something else would natural easy said applicant make applicant claim damage applicant establish applicant induced enter agreement may done case said respondent made false representation establishing applicant relied upon truth representation something caused applicant loss damage reliance established causation established reliance may inferred ingould v vaggelas 1984 157 clr 215 wilson j considered whether false representation made appellant caused appellant purchase unprofitable business honour consideration authority stated applicable principle considered 236 notwithstanding representation false fraudulent representee rely upon case material representation made calculated induce representee enter contract person fact enters contract arises fair inference fact induced representation inference may rebutted example showing representee entered contract either possessed actual knowledge true fact knew true alternatively made plain whether knew true fact rely representation representation need sole inducement sufficient long play part even minor part contributing formation contract honour continued page 238 plaintiff carry burden establishing every element cause action plaintiff show defendant made false statement intending thereby induce enter contract statement nature would likely provide inducement plaintiff fact enter contract however open defendant obstruct drawing natural inference fact showing relevant circumstance example commonly given circumstance plaintiff actually knew true fact knew truth plaintiff either word conduct disavowed reliance fraudulent representation gould v vaggelaswas action deceit principle stated wilson j relevant contravention ofs 52of tpa sutton v aj thompson pty ltd liq 1987 73 alr 233at 240 fault issue determining whether impugned conduct contravention care want care part party claiming contravention issue determining whether conduct misled deceived likely mislead deceive party inhenville v walker 2001 hca 52 2001 206 clr 459gleeson cj said 468 commonly case person induced misleading deceptive representation undertake course action acted carelessly otherwise fault responding inducement purpose legislation restricted protection careful astute negligence part victim contravention bar action unders 82unless conduct victim destroy causal connection contravention loss damage party address question 51a representation spreadsheet relate future matter e budgeted sale 1 november 2006 30 june 2007 budgeted overhead section 51a provides 1 purpose division corporation make representation respect future matter including refusing act corporation reasonable ground making representation representation shall taken misleading 2 purpose application subsection 1 relation proceeding concerning representation made corporation respect future matter corporation shall unless adduces evidence contrary deemed reasonable ground making representation 3 subsection 1 shall deemed limit implication meaning reference division misleading representation representation misleading material particular conduct misleading likely liable mislead section 51a 1 interpretive section corporation reasonable ground making representation representation shall taken misleading section 51a 2 throw onus onto corporation call evidence establish reasonable ground making representation failing corporation deemed reasonable ground making representation case divided whether merely place evidential onus upon respondent corporation met give rise deemed result imposes legal burden respondent corporation positively prove reasonable ground making representation conflict need addressed first respondent adduce evidence suggest reasonable ground making representation respondent case information included spreadsheet budget information intended relied upon forecast sale profit circumstance could attempt prove reasonable ground representing figure spreadsheet reflecting view future sale profitability respondent submitted f person determined enter contract truth influenced false representation made clearly case sutton v aj thompson pty ltd liq 73 alr 233at 240 course factual enquiry determine whether fact conduct complained induce applicant enter agreement whether fact applicant determined placed reliance false representation made proceeding relation tpa contravention two issue include sub issue first respondent conduct contravention ofs 52 secondly applicant rely upon contravening conduct entering second agreement 16 april 2007 either question answered negative applicant claim must fail opinion question must answered adversely applicant proceeding must dismissed insofar relies tpa contravention contended respondent providing spreadsheet engaged misleading deceptive conduct kind prescribed in 52 doubt business sale matter trade commerce respondent contend second applicant failed adduce evidence indicate reliance spreadsheet second applicant statement state relied upon spreadsheet purpose making decision purchase abacus business second applicant claim relied upon spreadsheet entering second agreement 13 march 2007 later figure half yearly profit loss statement obtained mr goodwin clearly relying information document emailed mr goodwin day referred half yearly profit 150 000 already found 13 march 2007 second applicant put reliance ever spreadsheet second applicant created working paper confirmed produced purpose calculating much second applicant willing pay term goodwill proportionate amount profit business expected make document showed inter alia second applicant willing pay 100 000 goodwill expected profit business 300 000 second applicant admitted trial 300 000 reached doubling amount 150 000 profit margin received mr guthrie report 4 april 2007 show relying spreadsheet opinion second applicant must relied mr guthrie profit margin 150 000 projected profit spreadsheet 648 856 assumed amount goodwill offered formed part offer based upon assumption profitability relation profitability spreadsheet indicating second applicant understanding time business making profit indicated spreadsheet 15 march 2007 second respondent mr fernihough explained second applicant purpose preparation spreadsheet limited use document could put second applicant knew told meeting budgeted figure reflect current retail sale dropped second applicant entered first second agreement without placing reliance upon spreadsheet understanding longer relevant ever already found time second applicant signed first agreement believe business level profitability sale disclosed brochure spreadsheet offer second applicant made reflected estimate profitability cost finance 300 000 show absence reliance spreadsheet reliance half yearly profit loss figure one suggests inaccurate first agreement entered first applicant employed john osborne due diligence report however john osborne employed due diligence report purpose second applicant satisfying profitability business order 300 000 level estimated half yearly earnings 150 000 level assumed assessing value goodwill 23 march 2007 mr guthrie given monthly sale figure january february 2007 mr fernihough mr guthrie second applicant agent evidence would support finding mr guthrie produced figure second applicant 27 28 march 2007 mr guthrie told second applicant sale gone order 1 1 million second applicant could rely upon sale spreadsheet receiving information 28 march 2007 second applicant received mr guthrie interim report assessed half yearly profit 110 000 suggested profitability business 151 000 halved second applicant could thereafter relying anything brochure spreadsheet view expert advice half yearly figure 31 december 2006 halved 4 april 2007 second applicant received mr guthrie final report contained spreadsheet addressed three level profitability 10 april 2007 second applicant met mr guthrie mr osborne 13 april 2007 told memorandum business would operate break even second applicant agrees told going make money ignored expert advice second applicant made decision purchase business despite mr guthrie negative report business second applicant could stage rescinded agreement however chose continue purchase notwithstanding told expert business would break even stage relying upon financial information provided respondent 26 april 2007 second applicant provided sale figure march april 24 april 2007 march sale half budgeted figure april sale quarter budgeted figure despite negative information second applicant continued purchase business clear conduct relying spreadsheet time indeed second applicant claim relied information brochure spreadsheet claim relied upon figure 150 000 31 december 2006 financial statement suggestion profit 31 december 2006 overstated evidence second applied relied upon representation financial statement false induced enter agreement although reliance may inferred prepared draw inference clear whole evidence second applicant regard matter entering agreement satisfied applicant purchased business reliance information contained brochure spreadsheet event representation contained brochure spreadsheet corrected provision financial information referred conversation meeting 15 march 2007 second applicant entered agreement purchase business settled agreement disregard financial information supplied respondent disregard advice given expert retained cause loss information contained brochure spreadsheet thought wrongly apparently could turn business around effective cause loss misjudgement elder trustee executor co ltd v e g reef pty ltd 1987 fca 332 1983 78 alr 193 claim damage unders 82of tpa reason conduct kind in 52of tpa dismissed wrong claim damage unders 82of tpa made would accept mr gilmour m chek assessment damage evidence damage contrary evidence challenged applicant also relied upon clause 5 annexure agreement sale purchase business paragraph 22 23 statement claim mr metaxas contended paragraph 29 closing submission clause 5 provided warranty disclosure information revealed could cause purchaser modify withdraw offer also contended paragraph 27 written submission clause 24 e h written representation given first respondent additional financial information would provided fell within stated parameter materiality contended paragraph 30 written submission second applicant provided financial information end april 2007 settlement meant second applicant settled reliance upon express representation everything material revealed found respondent provided second applicant first respondent financial information including 24 april 2007 circumstance plea relying warranty must dismissed plea claimed breach warranty failure provide relevant financial information period 1 january 2007 31 march 2007 claim fails fact said applicant must confined pleading plea statement claim relying condition 24 e h although reference clause paragraph 10 3 statement claim however claim breach condition application made amend statement claim enlarge claim reason mr metaxas contention must rejected wrong confining applicant pleaded case material information namely sale figure 24 april 2007 provided respondent 26 april 2007 would information would material second applicant know 24 april 2007 7 may 2007 date settlement information provided applicant 24 april 2007 financial information date gave applicant information material applicant date settlement sale four trading day april disclose trend different first 20 trading day reason information material buyer disclosed applicant permitted rely plea made statement claim plea would dismissed reason plea would fail reason plea contravention failed representation current time settlement occurred 7 may 2007 accurate material information disclosed applicant proceeding must dismissed cross claim conceded cross claimant first respondent entitled judgment three cross respondent applicant judgment entered respondent sum 414 857 made 321 971 49 plus interest 92 886 calculated rate 10 7 may 2007 today cost must follow event cost indemnity basis sought cross claimant second third cross respondent second third applicant pursuant clause 10 guarantee special order grant cross claimant liberty apply advised cost indemnity basis cross respondent certify preceding two hundred forty nine 249 numbered paragraph true copy reason judgment herein honourable justice lander associate dated 25 march 2010

NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11 (2 April 2014).txt

nsw registrar birth death marriage v norrie 2014 hca 11 2 april 2014 last updated 2 april 2014high court australiafrench cj hayne kiefel bell keane jjnsw registrar birth death andmarriages appellantandnorrie respondentnsw registrar birth death marriage v norrie 2014 hca 112 april 2014s273 2013orderset aside paragraph 3 b order court appeal supreme court new south wale made 14 june 2013 place order respondent application dated 26 november 2009 remitted nsw registrar birth death marriage determination accordance reason court appeal otherwise dismissed appellant pay respondent cost appeal court appeal supreme court new south walesrepresentationj k kirk sc k richardson appellant instructed crown solicitor nsw j bennett qc j abadee respondent instructed dla piper australia k l walker e bennett gender agenda inc amicus curia instructed human right law centre notice copy court reason judgment subject formal revision prior publication commonwealth law report catchwordsnsw registrar birth death marriage v norriestatutes interpretation registrar power register change sex underbirths death marriage registration act1995

Loenen, Titia --- "Indirect Discrimination as A Vehicle For Change" [2000] AUJlHRights 21; (2000) 6(2) Australian Journal of Human Rights 77.txt

loenen titia indirect discrimination vehicle change 2000 aujlhrights 21 2000 6 2 australian journal human right 77introductionis discrimination basis sex involved employer pay part time worker higher hourly rate overtime work employee worked hour normal full time standard yes said dutch equal treatment commission etc answer given european court justice ecj therebyde facto notde jure overruling former 1 ruling european court pose blow effort improve legal position part time worker group consists largely woman concept indirect discrimination contrasting outcome two similar case due different application concept indirect discrimination application dutch equal treatment commission concept indirect discrimination potentially far reaching decision european court justice show far reaching effect self evident compelling contribution explores possibility limit concept indirect discrimination condition reach structural form discrimination help achieve formal substantive equality extent vehicle real change issue relevant woman also non dominant group society like ethnic religious minority homosexual analysis draw experience concept indirect discrimination various jurisdiction slight variation known applied country like united state south africa canada european union australia 2 article also pay special attention jurisprudence dutch equal treatment commission semi judicial body developing quite impressive body case law subject covering indirect discrimination basis sex race nationality sexual orientation religion comparative analysis hope contribute better understanding way concept work fails work different legal setting improve potential reaching subtle systemic form discrimination jurisdiction discussed latter much need improvement australia exception report australian law reform commission equality law justice woman refers indirect discrimination key issue discrimination law 3 however immediately add least australian sex discrimination act concerned provision dealing form discrimination realised potential definition indirect discrimination complex considered difficult prove complaint 4 1994 analysis still hold true 5 following conceptual analysis hopefully provide inspiration amend shortcoming defining indirect discriminationthe united state probably claim founding father concept indirect discrimination american terminology disparate adverse impact root disparate impact analysis traced famousgriggscase 6 case u supreme court decide whether completion highschool condition promotion constituted discrimination basis race black would much greater difficulty meeting requirement white applicable federal legislation title vii civil right act prohibits discrimination basis race colour religion sex national origin employment however explicitly cover direct indirect discrimination supreme court ruled employer facially neutral employment practice based race shown disparate impact black establishes aprima faciecase race discrimination save practice employer show practice jobrelated otherwise constitutes business necessity ingriggsthe supreme court concluded high school completion requirement bear demonstrable relationship succesful job performance thus serve business necessity approach later extended sex discrimination case 7 europe similar concept developed european court justice area sex discrimination 8 come blue start european court justice already familiar notion indirect discrimination basis nationality given importance eradicating discrimination ground view primary goal european community free flow worker good service surprising european court justice keen address kind subtle hidden form discrimination basis nationality outright exclusion thus held casesotgiuthat rule regarding equal treatment forbid overt discrimination reason nationality also covert form discrimination application criterion differentiation lead fact result 9 second influence development concept indirect discrimination context sex discrimination case stem development united state first indirect sex discrimination case reach european court justice advocate general warner drew explicitly ongriggsto convince court paying part time worker le full time worker indeed amount indirect discrimination basis sex contravention principle equal pay enshrined article 119 currently art 141 eec treaty 10 landmark casebilkathe european court justice formulated test applied indirect discrimination case consistently reiterated subsequent case 11 stake exclusion part time worker occupational pension scheme though practice sex neutral practical effect excluded much woman men given overrepresentation woman part time work european court justice ruled right equal pay infringed department store company excludes part time employee occupational pension scheme exclusion affect far greater number woman men unless undertaking show exclusion based objectively justified factor unrelated discrimination ground sex 12 court subsequently qualified objective justification requirement measure practice meet real need enterprise appropriate necessary end 13 later case indirect discrimination state stake real need enterprise requirement replaced general notion legitimate aim 14 conceptually speaking likeness european american concept indirect discrimination disparate impact striking difference stem different context concept operating affect basic similarity american notion disparate impact title vii civil right act clearly tailored employment context whereas european notion indirect discrimination formulated general way thus rather easily applied broader area broader range ground discrimination use concept general way would like define indirect discrimination rather loosely distinction practice policy discriminate expressly commonly distinguished ground discrimination like race sex religion sexual orientation handicap age discriminatory disparate impact group protected discrimination objective justification shown exist potential concept indirect discriminationexamples netherlandsthe way dutch equal treatment commission applied concept indirect discrimination provides interesting example far reaching potential dutch equal treatment commission semi judicial body main task supervision equal treatment act came force 1994 end hear complaint give opinion legally binding equal treatment act cover discrimination basis religion belief political opinion race sex nationality sexual orientation civil status major area social economic life like employment liberal profession insurance banking housing welfare education healthcare apart act dutch equal treatment commission supervises much older equal treatment act deal specifically sex discrimination employment since end 1996 also hear complaint act prohibiting discrimination basis difference working hour instance part time full time worker closely related indirect sex discrimination 100 150 opinion rendered year case law dutch equal treatment commission cover wide range case majority still concern sex discrimination may explained much longer tradition bringing type case already existed act regarding sex discrimination employment following give example way concept indirect discrimination work hand dutch equal treatment commission show conceptual strength dutch equal treatment commission closely follows step test developed european court justice practice measure disproportionately affect protected group perpetrator advance objective justification practice meaure appropriate necessary achieve legitimate aim related discriminatory purpose especially necessary element give test real bite following european court justice dutch equal treatment commission often considers respect whether goal could achieved different non discriminatory mean sex discriminationthe extensive part case law dutch equal treatment commission concern sex discrimination applying concept indirect discrimination dutch equal treatment commission shown used challenge succesfully several subtle systemic form discrimination woman respect draw much inspiration legally binding case law european court justice yet take concept point major step 15 first example concern discrimination pay practice dutch equal treatment commission acknowledges detrimental effect woman basing salary experience gainful employment last earned pay woman far often men leave labour maket time take care child policy disparate impact woman reentering labour market drawing decision european court justice innimz 16 dutch equal treatment commission consider policy objectively justified demand thatallrelevant experience including relevant experience unpaid work taken account assessed individual basis far last earned pay provides proper indication relevant experience justified use starting point employer periodically reconsider whether compared man work equal value lower salary basis lesser experience start employment still warranted 17 exclusionary pay practice deriving segregated labourmarket also quite succesfully challenged claim indirect discrimination many occupational pensionschemes instance exclude typically female job like administrative function cleaning coverage likewise financial arrangement sometimes reserved technical mainly male personell exclusion affect woman much men dutch equal treatment commission closely scrutinises justification advanced whole consider practice objectively justified financial consideration employer accepted justification even scheme part collective labour agreement cannot save 18 last example area pay concern job evaluation scheme widely used healthcare sector covering 150 000 person basis extensive thorough examination system dutch equal treatment commission concluded harboured several subtle mechanism led lower appraisal element typically female function like nursing compared element typically male function like management 19 start different element nursing activity much le extensively identified described element managing laid detail besides description male function often formulated weighty female function thus aspect management total score function given far weight aspect care taking similar element valued le female function male function thus unattractive element latter compensated larger extent former give last remarkable example gender bias system regular sensitive contact nursing personell ward premature baby baby parent valued hardly higher contact category technical personell could incidentally patient another area dutch equal treatment commission developed rather extensive body case law challenging structural form discrimination concern part time work woman work far often part time men due family responsibility distinction part time full time worker potentially discriminatory following large extent case law european court justice dutch equal treatment commission rendered long line opinion make clear part time work valued equally full time work thus part time worker may excluded pension scheme may excluded policy reduce hour work full pay older worker receive compensation health insurance full time worker notpro rata 20 remarkable line case deal right part time job instead full time one facilitate combining paid work care taking activity dutch equal treatment commission construes refusal employer make part time job available policy disparate impact woman woman much men need looking part time work still bear larger part caretaking activity mean employer advance objective justification practice making job full time nearly full time available end employer show job done available required number hour 21 similarly request worker reduce number working hour may refused unless employer show refusal objectively justified appropriate andnecessaryto achieve real need enterprise dutch equal treatment commission inclined lenient towards employer 22 discrimination basis race nationality religionthe line case covering discrimination basis race understood broad sense un convention racial discrimination nationality religion much le extensive still provides several example concept indirect discrimination used area well netherlands discrimination basis race nationality religion quite often related due growing presence ethnic minority former dutch colony turkey marokko migrant worker asylum seeker one first type case indirect discrimination reach dutch equal treatment commission concerned job requirement demanding good command dutch language requirement evidently disparate impact ethnic minority dutch equal treatment commission considers requirement proficiency dutch language justified necessary performance job thus discriminatory require function librarian doorman allowed simple cleaning job 23 employer dress requirement may conflict religious dress given rise another range case dutch equal treatment commission pretty strict wearing turban sikh religion headscarf respect moslem banned valid safety reason unrepresentative eye customer creating irritation co worker client 24 public primary school refused muslim woman wearing headscarf trainee took manifestation intolerant attitude conflicting open character public education also violated prohibition indirect discrimination eye dutch equal treatment commission presence tolerant intolerant attitude assessed individual basis may based ascribed characteristic person wearing headscarf 25 interestingly concept indirect discrimination also used support claim reasonable accommodation religious requirement like praying work taking leave friday vist mosque 26 employer refuse accommodation come objective justification refusal indirect discrimination basis nationality rather regular feature condition selection acceptance customer reduce risk customer solvent untracable case non payment customer often asked present proof permanent residence like passport specific immigration document cannot provide one may confronted additional condition acceptance evident policy affect foreigner much people dutch nationality indirect discrimination stake unless objective justification advanced whole dutch equal treatment commission acknowledged purpose policy reduction risk legitimate yet also consistently held firm look beyond residence permit shown temporary permit always give adequate indication actual legal position individual concerned thus presence riskfactors 27 mean chosen narrowly tailored based overbroad generalisation 28 towards substantive equalitythis quick scan opinion dutch equal treatment commission show conceptual potential indirect discrimination analysis focusing theresultsof certain treatment instead nature treatment term belongs realm notion substantive equality 29 formal conception equality question whether people treatedthe sameirrespective race sex disability religion sexual orientation like determining long treatment problem equality discrimination cannot arise however unequal result treatment may formal equality approach simply blind unequal outcome stemming instance social economic difference exactly substantive approach equality start unequal result triggering device formulating problem term equality discrimination irrelevant whether result treatment concept indirect discrimination similarly identifies unequal result problem equality discrimination unequal result demand scrutiny see whether treatment justified notwithstanding effect way directs attention myriad form systemic subtle form discrimination visible express discrimination often negative impact vulnerable non dominant group far reaching potential concept indirect discrimination clearly acknowledged united state supreme court inwashington v davis case concerning racial discrimination court decide whether disparate impact analysis developed title vii civil right act would applicable constitutional equality clause well given distribution united state affluence poverty along racial line broad scope constitutional protection discrimination justice white showed clear awareness tremendous implication adoption disparate impact approach could rule statute designed serve neutral end nevertheless invalid absent compelling justification practice benefit burden one race another would far reaching would raise serious question perhaps invalidate whole range tax welfare public service regulatory licensing statute may burdensome poor average black affluent white 30 supreme court apparantly willing take risk invalidate kind federal state statute disparate impact black block court inwashington v davisruled discriminatoryintentis required bring effective claim discrimination theconstitution held constitutionally valid invidious quality law claimed racially discriminatory must ultimately traced racially discriminatory purpose 31 way supreme court reduced use disparate impact analysis specific limited area like employment sphere covered title vii intenta requirement intent bring succesful claim effective mean curtailing scope notion indirect discrimination fact le kill decision supreme court infeeneyprovides good example 32 case woman challenged statute state massachusetts gave absolute preference army veteran applying state civil service job group almost exclusively male 98 constituted 25 entire state population woman fact almost completely excluded state civil service except traditionally female job male worker would apply clear example indirect discrimination one would say disparate effect woman obvious even purpose helping army veteran may legitimate service rendered general interest rather absolute exclusion woman make mean chosen hardly appropriate certainly necessary supreme court however never even reached balancing interest would required objective justification test killed claim discrimination start holding contested provisons infringe constitutional equality clause intend discriminate woman purpose reward service rendered army veteran prefer men woman woman affected men disadvantaged well disproportionately large number woman affected make difference court discriminatory purpose however implies intent volition intent awareness consequence implies decisionmaker case state legislature selected reaffirmed particular course action least part merely spite adverse effect upon identifiable group 33 intent requirement render whole concept indirect discrimination harmless first barrier overcome proving intent formidable one identify intent institutional decision maker like legislature lawmaking process modern democratic state complex involves many actor adding intent besides often law compromise character may result competing aim motivational approach intent model based individual people seem well suited institutional decision making 34 secondly questionable whether intentional discrimination really anything experience race sex discrimination shown larger problem exclusion disadvantage racial minority woman derive much subtle unintentional mechanism outright straightforward express discrimination requiring intent supreme court sidestepping fundamental problem inequality discrimination mean however outragious exclusion may constitution turn blind eye long state considered bad intention also mean similar form disadvantage may condoned theconstitutionin one part country another different state mind local government involved 35 given serious criticism intent requirement supreme court really must worried much potential implication adopting disparate impact analysis theconstitution real court fear mind supreme court cracking nut sledgehammer though concept indirect discrimination may sweeping effect indeed also important mitigating mechanism objective justification test instrument crucial importance used carefully intelligently provide good tool balancing interest concerned one hand requires policy measure disparate impact protected group critically examined make sure every treatment effect definition unlawful latter case sometimes defended 36 would make concept indirect discrimination rigid thus unworkable indeed threatening disadvantage determining factorcontrary united state supreme court canadian supreme court le qualm taking disparate impact sufficient proof aprima faciecase discrimination 37 canadian charter human right intent discriminate required quote justice macintyre writing court inlaw society british columbia v andrew would say discrimination may described distinction whether intentional based ground relating personal characteristic individual group effect imposing burden obligation disadvantage individual group imposed upon others withholds limit access opportunity benefit advantage available member society 38 indeed canadian court seems take adverse effect discrimination even step way towards substantive equality 39 judgment ineldridgeit held failure hospital provide sign language interpretation deaf patient necessary effective communication constitutesprima faciediscrimination 40 adverse effect determining nothing else government could demonstrate action infringed right deaf person respect reasonable excluded service alltogether could saved decision ineldridgeis rather unique deal seemingly neutraldifferentiationwith adverse effect protected group alackof differentiation address need accommodate difference group take positive step ensure disadvantaged group benefit equally case healthcare respect canadian court reach heart substantive equality result actual enjoyment human right equal basis determining realise end differentialtreatment may warranted timeeldridgeraises difficult question involved substantive equality approach derive open ended nature substantive equality 41 far providing facility deaf person go hospital provide sign language interpretation every time deaf person visit doctor major decision taken deaf people entitled facility group communication problem example sufficient command official language ineldridgethe supreme court canada solves first problem limiting constitutional duty provide sign language deaf person situation necessary effective communication second problem sidestep argument nature advanced government terming speculative 42 vulnerability concept indirect discriminationthe potential concept indirect discrimination depends highly way applied respect vulnerable part test establishing disparate adverse impact protected group deciding whether objective justification exists establishing disparate impactestablishing disparate impact protected group fact involves two step practice policy must shown first detrimental effect secondly affect protected group disproportionately though first step seems quite easy practice sometimes turn pretty complicated especially case concerning part time work proven pose difficult problem fact diverging way dutch equal treatment commission european court justice considered aspect case cited introduction responsible different outcome case concerned german pay practice paying bonus overtime work hour worked surpassed normal full time standard thus part time worker individual labour contract 20 hour would receive extra pay overtime work unless worked 40 hour though seemed evident dutch equal treatment commission similar case pay practice disadvantage part time worker european court justice different view instead taking individually contracted hour starting point defining overtime work comparing pay full time part time worker respect hour worked top contract court compared overall wage received part time worker full time worker number hour worked comparison lead entirely different conclusion part time full time worker receive pay hour worked part time worker labour contract 20 hour receives pay 24th hour worked full time worker differential treatment exists thus disadvantage start way claim indirect discrimination basis sex killed right beginning european court justice never even reached stage decide whether objective justification present justification dutch equal treatmet commission thought absent similar case case brought dutch equal treatment commission european court justice increasingly show difficulty assessing disadvantage involved differing condition labour full time part time worker disadvantage part time worker receive apro ratacompensation time spent education union activity full time worker disadvantaged receive compensation part time worker full time part time worker pay amount money private use company car practice disadvantage full time worker le time work part time worker use privately first place answer given decide whether basis indirect discrimination claim start second step establishing disparate impact claim concern linking adverse impact identified group protected anti discrimination clause vulnerability step lie amount proof required statistical evidence required detailed well tailored specific situation sufficient refer fact common knowledge establish link dutch equal treatment commission accepted several case give example job requirement fluency dutch establish aprima faciecase indirect discrimination basis race fact common knowledge ethnic minority general lesser command language thus disadvantaged requirement statistical proof provided claim succesful statistic advanced one relevant look overall fluency person pertaining ethnic minority relevant labour pool use relative absolute figure evidently sophisticated statistical evidence required difficult establish aprima facieclaim indirect discrimination information may readily available provided defendant also costly 43 european court justice seems pretty lenient respect difficulty presuming criterion like seniority length occupational training flexibility working variable hour variable place disparate impact woman overall division labour men woman make woman primary caretaker sufficient establish woman difficulty meeting criterion men question whether statistical evidence required also point another problem much disparity needed establish disparate impact thefeeneycase disproportionate effect woman overwhelming case may quite different european court justice seems inclined make thing hard claimant indanfossa 6 85 percent wage differential male female worker function group accepted providing sufficient evidence aprima facieindirect discrimination claim 44 yet case ofseymour smith perezit required considerably smaller percentage woman men able fulfill contested requirement 45 objective justificationthe objective justification test lie heart concept indirect discrimination even step mentioned effectively neutralize claim indirect discrimination case question whether objective justification exists determining stage much depends way test applied especially strictly leniently generally speaking united state ec test formulated pretty strict term business necessity context title vii civil right act necessary ec provision suggest close judicial scrutiny yet case law united state supreme court european court justice see relaxation objective justification test far european court justice concerned especially apparent social security case european court justice increasingly leaf large margin appreciation member state eu themolenbroekcase provides good illustration development difference make whether objective justification test applied leniently strictly molenbroekconcerned dutch old age pension statute guarantee everyone turning 65 fixed monthly benefit person dependant spouse 65 supplement available guarantee every household certain minimum income called social minimum receiving supplememt income earned thespouseis deducted whereas income theclaimant like occupational pension taken account though provision differentiate expressly basis sex men receive supplement far often woman given fact men generally older spouse even case generally gainfully employed besides far woman men spouse turning 65 also disadvantaged financially discouraged stay job negatively affect supplement several claim indirect discrimination basis sex brought simultaniously different lower dutch court dealing social security case interestingly came differing conclusion depending strictness applied appropriate necessary requirement objective justification test one court accepted purpose statute guarantee every household social minimum legitimate aim social policy yet consider mean employed appropriate necessary though supplement necessary ensure social minimum case many others household receive far claimant additional income 46 second court hand considered provision necessary sufficient number case ensure social minimum save statute according court overinclusion put american term stand way provision regarding supplement necessary 47 answer preliminary question put regarding case european court justice followed latter lenient approach 48 subsequent case dealing social security issue trend continued several case european court justice seems applied reasonableness test requiring member state show provisons unreasonable 49 similar trend apparant case law united state supreme court dealing disparate impact though standard business necessity seems tough meet paper supreme court lenient towards employer thus itswards covedecision court required employer show challenged practice serf significant way legitimate employment goal employer touchstone inquiry reasoned review employer justification use challenged practice 50 seems pretty far cry requirement business necessity example given clearly show strength concept indirect discrimination largely dependant strictness review least european court justice concerned increasing leniency court applying objective justification test social security case may well due political pressure member state eu getting nervous major especially financial impact case law indirect discrimination area anything confirmation great potential concept indirect discrimination factor influencing potential indirect discrimination analysistwo factor may highly influence effectiveness claim indirect discrimination mentioned one concern conceptualization discrimination much wider sense concern question burden proof symmetrical asymmetrical conception discriminationa crucial aspect discrimination analysis direct indirect discrimination concern question whether non discrimination principle conceptualized symmetrical asymmetrical way basically concerned eradicating irrelevant distinction whoever disadvantaged distinction symmetrical approach basic object purpose combat structural pattern disadvantage affecting member non dominant group asymmetrical approach 51 latter mean non discrimination clause essentially directed protection vulnerable group like racial minority woman homosexual disabled secondarily protecting ethnic majority men heterosexual able people consequence one approach far reaching indeed best shown different approach taken majority dissenter american case ofadarand constructor 52 case supreme court united state faced federal preferential treatment policy concerning federal agency contract policy provided financial compensation prime contractor hired subcontractor certified small business controlled socially economically disadvantaged individual racial minority presumed fall category adarand constructor certified business policy missed contract adarand claimed race based presumption preferential treatment policy violated equality clause theconstitution supreme court agreed important notice level scrutiny applied reach decision court decided long standing question whether benign discrimination intended improve position racial minority considered way negative discrimination answered question affirmative level review case strict scrutiny 53 respect court stressed personal character right equal protection meaning everyone equality clause protects person group thus supreme court clearly took symmetrical approach equality clause dissenter vehemently attacked approach stressed need differentiate benign negative discrimination level scrutiny applied moral constitutional equivalent policy designed perpetuate caste system one seek eradicate racial subordination 54 eye majority approach flawed ignores decisive relevance social historical context discrimination basis race proper contextual approach mean classification exclude racial minority subject strict scrutiny meant inclusionary giving center stage historical context race discrimination dissenter took asymmetrical approach differing result approach evident strict scrutiny hardly classification survive europe line european court justice ambiguous case ofkalankeandmarschall dealing preferential treatment woman show formal symmetrical apporach 55 however cryptical unclear motivation extensive critique generated suggested subsequent case law could well take different turn fact seems happened recent decision inbadeckthe ecj took lenient approach german preferential treatment programme 56 canada south africa hand constitutional court adopted asymmetrical approach amelioration position disadvantaged group society considered major purpose equality non discrimination clause south africanconstitutionand canadian charter human right 57 south african constitutional court surprisingly given history ofapartheid explicit respect vulnerable group adversely affected discrimination likely discrimination held unfair 58 translate review applied yet altogether clear case ofwalkershows white people may bring successful claim indirect discrimination well even cannot considered socially economically disadvantaged group yet reading decision court leaf impression court indeed le strict review non discrimination clause would black people similarly affected 59 importance starting asymmetrical approach may even important indirect discrimination case direct one born mind kind ordinary social policy measure directed improving position disadvantaged group would come attack symmetrical approach taken housing improvement subsidy inner city dweller instance could seriously challenged suburban resident indirectly discriminatory basis race ethnic minority concentrated city center indeed dutch author term type policy indirect positive discrimination onus accompanying term 60 seems outragious rather would outragious policy meet strict review court negative discrimination seems evident equality non discimination clause written jeopardize policy part parcel social welfare state asymmetrical approach discrimination analysis thus seems one make sense burden proofthe factor mention may influence actual scope concept indirect discrimination concern burden proof typically indirect discrimination case burden proof lie defendant adverse effect policy meaure protected group established united state case law show important ingriggs burden proof squarely placed defendant aprima facieclaim disparate impact discrimination established inwards cove however supreme court took different turn shifted burden proof back claimant 61 dissenting justice outraged regarded approach turning blind eye meaning purpose title vii bitterly wondered whether majority still belief race discrimination problem society even remember ever 62 reaction thewards covedecision unacceptable federal government title vii amended undo supreme court decision still decision show impact division burden proof european court justice hand seems inclined shift burden proof even defendant indanfossit decided employer bear risk employing pay system lack transparency undertaking applies system pay totally lacking transparency employer prove practice matter wage discriminatory female worker establishes relation relatively large number employee average pay woman le men 63 thus claimant prove disparate impact related aspecificemployment practice employer like united state case hand meant danish union establish direct link use criterion like seniority length training mobility one hand pay differential men woman establishing pay differential 6 85 percent men woman function group deemed sufficient shift burden proof employer course make tremendous difference bringing succesful claim conclusionsfrom clear question whether concept indirect discrimination vehicle change easy answer anything concept raising question equality non discrimination wherever vulnerable group disadvantaged regardless whether result differential treatment simply put able challenge kind dominant standard detrimental effect non dominant group problem equality respect concept signifies big step forward along way substantive equality time realise concept necessarily limited law inherently limited instrument change though may sound like platitude necessary keep mind thus instance concept indirect discrimination may direct attention fact requiring fluency majority language adverse impact ethnic minority thus prohibited unless objectively justified alter anything underlying educational disadvantage suffered group achieve genuine equality much needed within limit however quite lot space concept indirect discrimination make real difference australian context jurisdiction whether indeed seems depend two factor clear proper definition concept interpretation court render potential bite harmless importance shown clearly experience sex discrimination act according australian law reform commission indirect discrimination provision sda far complex difficult prove four part test demand complainant required 1 comply requirement condition 2 able comply 3 substantially higher proportion men complies able comply 4 reasonable regard circumstance case 64 onus proof complainant well test difficult satisfy australian law reform commission therefore recommends simplify indirect discrimination provision reverse burden proof 65 analysis support importance implementing recommendation fact shifting burden proof alleged discriminator disparate impact measure practice woman shown exist would line legal practice elsewhere yet analysis also show much needed especially objective justification test australian term reasonableness test eventually lie heart concept indirect discrimination crucial seen europe ecj formulated strict criterion seems important include criterion legal definition indirect discrimination unfortunately court show case law strictness formulation watertight guarantee strictness application end day potential concept indirect discrimination depends heavily court respect well road ahead strewn rock pothole united state supreme court effectively neutralized whole notion disparate impact constitutional review requiring intent discriminate threat seen stage bringing succesful claim indirect discrimination vulnerable one way another much depend court handle concept even good four wheel drive evading pothole rock requires good steadfast driver well prof dr l p loenen professor woman legal study faculty oflaw utrecht university 1 etc opinion 1 90 10 oordelen commissie gelijke behandeling van mannen en vrouwen bij de arbeid 1989 1990 opinion equal treatment commission regarding men woman employment 1989 1990 den haag1991 ecj 19december 1994 helmig case c 399 92 others european court report 1994 p 5727 2 large selection contribution dealing non discrimination law country see loenen rodrigues p r ed non discrimination law comparative perspective martinus nijhoff publisher london 1999 3 australian law reform commission equality law justice woman report 69 1994 1 4

Mrs Liu Fu Yue v Victoria Gardens Holdings Pty Ltd trading as Victoria Garden International Food Arcade [1996] WAIRComm 202 (29 October 1996).txt

mr liu fu yue v victoria garden holding pty ltd trading victoria garden international food arcade 1996 waircomm 202 29 october 1996 western australian industrial relationswestern australian industrial relation commissionindustrial relation act 1979mrs liu fu yue victoria garden holding pty ltd trading victoria garden international food arcade 908 1996 senior commissioner g l fielding 29 october 1996reasons decisionsenior commissioner respondent operates food hall northbridge consisting number food stall drink station common ground respondent employed applicant 4 march last 6 june last establishment counterhand applicant commenced employment soon arriving australia china respondent principal chinese origin however material record applicant english teacher china approximately 12 year coming australia time commencing work respondent required sign letter prepared respondent manager following term part time counterhandwith reference recent discussion wish work counterhand coffee shop effect today wage shall 7 per hour prepared work hour arranged shall claim extra payment overtime sunday public holiday employment neither claim amount nature ceased employee wish claim superannuation contribution wage earned sic applicant say course discussion preceded letter sought given assurance respondent manager would work least 40 hour week apparently prospect obtaining another job full time basis applicant worked respondent without incident 6 march last say advised respondent principal mr poh hour work reduced 33 per week testified time regularly worked 45 hour per week spread four day week one day worked 11 00 10 00 p three day 11 00 11 00 p say protested mr poh proposed change say replied like could go home applicant say told mr poh going dismiss would require letter dismissal say told busy give letter applicant say later day returned respondent premise obtain letter told manager present thus unable meet request result event applicant instituted proceeding seeking relief alleges unfair termination employment seek reinstatement rather seek compensation order two month wage together sum 3 584 46 comprising benefit annual leave superannuation additional pay hour worked claim entitled contract employment respondent hand denies applicant dismissed employment rather asserts applicant walked effect abandoned employment mr poh testified asked applicant transfer drink counter food counter refused furthermore respondent denies applicant regularly worked 45 hour per week instead worked varying number hour week depending upon need business respondent say transfer applicant drink counter food counter necessary part process enabling fully utilise service employee beyond question applicant succeed must first prove dismissed employment respondent purpose essential respondent expressly terminate employment well settled employee resigns may nonetheless taken dismissed employment employee resign willingly effect forced conduct employer see mohazab v dick smith electronics pty ltd 2 1995 62 ir 200 207 see also attorney general v western australian prison officer union worker 1995 75 waig 3166 satisfied find occurred instance find respondent agent promised applicant least 40 hour work per week respect accept applicant evidence reliable impressed honest witness good recollection event notably able spontaneously reply question put cross examination save one respect evidence conflict mr poh son prefer evidence reliable indeed mr poh could recall otherwise unaware many material event surrounding matter likewise fair say son manager business little involvement knowledge event addition suggest one entitled least question credibility person allows affair business conducted time wage book record part wage actually paid uncontradicted evidence applicant paid partly cash partly cheque amount recorded time wage book respondent amount paid cheque amount tax deducted however accept mr poh evidence preference applicant respect size respondent workforce find order six seven employee mr poh testified rather order 20 applicant asserts applicant evidence promised least 40 hour work per week also contradicted testimony others respondent manager discussion longer respondent employ called witness apparently gone overseas read letter appointment contradicting applicant claim promised least 40 hour work per week respondent manager event consider inequitable held term letter face fact largely unchallenged unaware concept overtime superannuation moreover asked manager information regarding import letter find told really none business simply sign letter accept mr poh evidence present letter signed protest sign furthermore accept inception employment applicant regularly worked 45 hour per week testified except one occasion arrived half hour late work another worked 45 hour cover absent employee although record wage paid show constant amount might expected worked 45 hour week accept position applicant testified wage often inaccurately calculated respondent adjustment made following pay day drawn error attention paymaster circumstance satisfied find respondent conduct effectively terminated applicant employment thus purpose theindustrial relation act 1979she taken dismissed employment applicant without warning presented ultimatum resign accept fundamental change contract employment circumstance entitled regard employment end see western excavating ecc ltd v sharp 1977 ewca civ 2 1978 icr 221 226 reality brought end action action respondent regard might without significance applicant evidence find credible mr poh deny dismissing applicant employment asked letter dismissal simply replied busy provide one likewise later sought letter simply told one around give letter abandoned employment thus entitled follows reason section 23aa theindustrial relation act 1979 incumbent upon respondent establish dismissal effected justifiable reason doubt indeed case evidence applicant told hour reduced respondent could afford keep full time basis seems clear evidence applicant respondent respondent business entirely successful one unchallenged evidence number stall food hall closed trading indeed difficult circumstance fair say ground commission could find dismissal justified purpose section 23aa theindustrial relation act 1979 remains consider whether dismissal either harsh oppressive unfair balance consider entered agreement employ applicant least 40 hour per week find fundamental employment relationship change condition without notice coupled ultimatum acceptable leave contemporary standard unfair say impermissible respondent reduce applicant hour work 40 per week however occur proper notice required furthermore theminimum condition employment act 1993stipulates would circumstance need discussion respondent applicant regarding effect reduction applicant see minimum condition employment act 1993ss 40and41 considering question relief unfair dismissal seems necessary point entitlement compensation subject commission satisfied impracticable reinstate applicant see industrial relation act 1979section 23a case commission authorised award compensation simply applicant request preference reinstatement employment primary remedy reinstatement party primarily applicant establish impracticable reinstate former employment entitlement compensation present case respondent indicated prepared reinstate applicant would require applicant employed working least 40 hour per week applicant however say trust respondent accusing agent misled fearful would long hour work reduced still balance although confess matter borderline conclude impracticable accepted sense term reinstated former employment act provides guideline assessing compensation final analysis matter comparing likely position former employee would employment terminated current position former employee find requires amongst thing consideration potential ongoing employment respondent regard need recognise counsel respondent submitted fact applicant entered contract employment provided le 40 hour per week guarantee continue forever although respondent suggested applicant engaged casual employee accept case restaurant tearoom catering worker award 1979 seems common ground appears govern applicant employment stipulates classified casual employee employee must engaged evidence occurred occasion rather letter appointment mention applicant part time employee concept part time employment inconsistent concept casual employment consistent indefinite employment employee employed indefinite albeit part time basis applicant entitled virtue award least one day notice termination variation contract first year service whilst law relating harsh oppressive unfair dismissal might require something one day notice circumstance case unreasonable however proceed basis applicant tenure relatively insecure respondent business trading poorly assessment unrealistic think existing arrangement would lasted much longer fact taking account taking account relatively short length service seems unreasonable fix compensation order two week wage doubt applicant somewhat distressed experience suffered financial hardship extent would occurred even dismissal effected proper notice event discussed another occasion consider commission authority award compensation distress best moot commission authority confined compensating employee loss injury see trumino v blazeway pty ltd orbit amusement unreported app 816 96 7 10 96 perhaps also noted applicant obtained alternative employment within one month dismissal employment provides remuneration significantly higher level paid former employment respondent circumstance ass compensation 750 00 disregarded contractual benefit applicant claim entitled relation entitlement notice termination extent entitlement benefit must rely provision relevant award theminimum condition employment act 1993 circumstance recovery entitlement matter exclusively industrial magistrate see industrial relation act 1979section 83 1a minimum condition employment act 1993section 7 therefore expressly refrain making judgement comment respect entitlement appearance applicant personmr c narayanan counsel behalf respondent

Environment Protection Authority v Mouawad (also known as Isaac) (No 4) [2023] NSWLEC 76 (21 July 2023).txt

environment protection authority v mouawad also known isaac 4 2023 nswlec 76 21 july 2023 last updated 21 july 2023land environment courtnew south walescase name environment protection authority v mouawad also known isaac 4 medium neutral citation 2023 nswlec 76hearing date 17 18 may 2023supplementary submission filed 24 may 2023 prosecutor supplementary submission filed defendantdate order 21 july 2023decision date 21 july 2023jurisdiction class 5before pritchard jdecision order 265 catchword sentencing pollution land transportation waste offence s 142a 1 143 1 protection environment operation act 1997 nsw guilty plea self represented defendant defendant departure statement agreed fact allegation procedural unfairness asbestos waste importation fill material accordance waste classification certificate allegation recklessness relevance state mind offence s 142a 1 143 1 protection environment operation act 1997 medium high objective seriousness prior criminality offence committed financial gain planned organised activity remorse shown offender need specific deterrence discount plea guilty first day trial discount totality principlelegislation cited crime sentencing procedure act 1999 nsw s 3a 21a 22 22a 23criminal procedure act 1986 nsw s 247a 247j 247k 247mevidence act 1995 nsw s 4 191protection environment operation act 1997 nsw s 3 142a 143 241 sch 1 cll 49 50protection environment operation waste regulation 2014 cll 91 92 93cases cited aland b w pty ltd v blacktown city council 2023 nswlec 13axer pty ltd v epa 1993 113 lgera 357bankstown city council v hanna 2014 205 lgera 39 2014 nswlec 152barbaro v queen 2014 253 clr 58 2014 hca 2bentley v bgp property pty ltd 2006 145 lgera 234 2006 nswlec 34camilleri stock feed pty ltd v environment protection authority 1993 32 nswlr 683chief executive office environment heritage v boyle 2019 nswlec 54city parramatta council v sydney tree excavation demolition pty ltd 2021 nswlec 71cl v r 2014 nswcca 196director general department environment climate change v rae 2009 168 lgera 121 2009 nswlec 137duffy v r 2009 nswcca 304elias v queen 2013 248 clr 48 2013 hca 31environment protection authority v afram 2022 252 lgera 153 2022 nswlec 38environment protection authority v albiston 2020 nswlec 80environment protection authority v aargus pty ltd 2013 nswlec 19environment protection authority v crush haul pty ltd environment protection authority v cauchi 2022 nswlec 113environment protection authority v forestry corporation new south wale 2022 nswlec 70environment protection authority v foxman or 2 2016 nswlec 120environment protection authority v hanna 2010 nswlec 98environment protection authority v hanna 2018 235 lgera 114 2018 nswlec 80environment protection authority v hughes 2019 nswlec 108environment protection authority v laison 2015 nswlec 89environment protection authority v minto recycling pty ltd 2019 nswlec 193environment protection authority v mouawad also known boulos isaac 2 2023 nswlec 38environment protection authority v mouawad land environment court nsw moore j 28 september 2022 unrep environment protection authority v mouawad 2 2020 nswlec 166environment protection authority v mouawad 3 2021 nswlec 16environment protection authority v mouawad 3 2023 nswlec 44environment protection authority v p quality small good pty ltd 2017 nswlec 89environment protection authority v ramsey food processing 2009 nswlec 152environment protection authority v robinson 2004 nswlec 629environment protection authority v sam abbas also known osama abbas 2021 nswlec 57environment protection authority v smart skip pty ltd 2009 nswlec 204environment protection authority v sydney water corporation 2019 nswlec 100environment protection authority v sydney water corporation 2021 nswlec 17environment protection authority v sydney water corporation 2023 nswlec 68environment protection authority v university sydney 2022 251 lgera 361 2022 nswlec 41environment protection authority v waste recycling processing corporation 2006 148 lgera 299 2006 nswlec 419fairfield city council v oztech development pty ltd 2021 nswlec 81filippou v queen 2015 256 clr 47 2015 hca 29garrett v williams 2006 160 lgera 115 2006 nswlec 785gas v queen 2004 217 clr 198 2004 hca 22gittany construction pty ltd v sutherland shire council 2006 145 lgera 189 2006 nswlec 242harris v harrison 2014 86 nswlr 422 2014 nswcca 84harrison v perdikaris 2015 nswlec 99hills shire council v kinnarney civil earthwork pty ltd 2012 188 lgera 273 2012 nswlec 45leach v queen 2007 230 clr 1 2007 hca 3liverpool city council v leppington pastoral co pty ltd 2010 nswlec 170markarian v queen 2005 228 clr 357 2005 hca 25maxwell v queen 1996 184 clr 501 1996 hca 46mill v queen 1988 hca 70 1988 166 clr 59at 63 1988 hca 70mouawad v hill shire council 2013 199 lgera 28 2013 nswlec 165muldrock v queen 2011 244 clr 120 2011 hca 39ncr australia pty ltd v credit connection pty ltd 2005 nswsc 1118newcastle city council v pace farm egg product 2002 nswlec 66pearce v queen 1998 194 clr 610 1998 hca 57plath v rawson 2009 170 lgera 253 2009 nswlec 178r v neill 1979 2 nswlr 582r v peel 1971 1 nswlr 247r v thomson houlton 2000 49 nswlr 383 2000 nswcca 309secretary department planning environment v agl energy limited 2017 nswlec 2strbak v queen 2020 267 clr 494 2020 hca 10the queen v de simoni 1981 147 clr 383 1981 hca 31the queen v olbrich 1999 199 clr 270 1999 hca 54thuong nguyen v r 2012 nswcca 184tiknius v r 2011 221 crim r 365 2011 nswcca 215veen v queen 2 1988 164 clr 465 1988 hca 14water nsw v barlow 2019 244 lgera 1 2019 nswlec 30texts cited nilcategory principal judgmentparties environment protection authority prosecutor paul mouawad also known boulos isaac defendant representation counsel n sharp sc phillips ilic prosecutor defendant appeared personsolicitors legal service branch environment protection authority prosecutor file number 2018 260536 2018 260542publication restriction niljudgmentintroduction charge sentenceoutcomea self represented defendantonus standard proof sentencingevidencewaste classification guideline resource recovery exemptionsstatement agreed fact plea deal defendant departure statement agreed factsthe defendant contention relation procedural fairnessbackground factsworks undertaken propertyconstruction deed relation importation fill propertyprofit share agreement defendant mr levyimportation fill arcadia propertygeneral operation arcadia landfillpayments received acn payment made profit share agreementwaste classification certificate prepared ei australia relation zetland site wolli creek sitemr miller observation relation suspected asbestos fill imported property zetland siteinspections property progressive risk managementapplication epa resource recovery order resource recovery exemption13 july 2017 inspection property council15 august 2017 7 september 2017 inspection property prosecutor28 september 2017 email defendant mr mr levy20 september 2017 clean notice issued prosecutor action pursuant clean notice18 december 2017 volumetric survey propertyexpert evidence mr andre smit dr daniel marten stockpiled materialrelevant statutory provisionsobjective seriousness offencenature offencesmaximum penalty offencethe defendant state mind committing offencerelevance state mind relation 142a 1 offence polluting landrelevance state mind relation 143 offenceconclusions relation defendant state mindthe defendant understanding waste compliance whether responsible exemption request letterthe defendant control process fill validationawareness imported material real risk contaminatedno lawful authority fill material brought propertyconclusion defendant state mindthe harm caused environment commission offence 241 1 poeo actthe defendant reason committing offence question financial gainthe practical measure avoid harm environment defendant control cause harm environment 241 1 b poeo actforeseeability harm caused likely caused environment 241 1 c poeo actcontrol cause giving rise offence 241 1 poeo actwhether committing offence person complying order employer supervising employee 241 1 e poeo actthe presence asbestos environment 241 1 f poeo actconclusion relation objective seriousnesssubjective circumstance offenderprior criminality character s 21a 2 21a 3 e 21a 3 f csp actoffences committed without regard public safety 21a 2 csp actthe offence committed financial gain 21a 2 csp actthe offence part planned organised criminal activity 21a 2 n csp actremorse shown offender 21a 3 csp actplea guilty s 21a 3 k 22 csp actassistance authority s 21a 3 23 csp actnot likely reoffend 21a 3 g csp actprinciples sentencing consideredproportionalitygeneral specific deterrence 3a b csp acteven handedness consistency sentencingtotalitymeans defendant 6 fine act 1996 nsw appropriate penalty imposedpayment share fine prosecutor 122 fine act costsordersjudgmentintroduction charge sentencethe proceeding commenced 24 august 2018 26 april 2023 defendant paul mouawad also known boulos isaac pleaded guilty one offence polluting land 142a 1 theprotection environment operation act 1997 poeo act one offence causing waste transported place cannot lawfully used waste facility waste 143 1 poeo act arises sentence defendant offence two offence defendant pleaded guilty 1 31 january 2017 28 august 2017 inclusive near arcadia state new south wale committed offence 142a 1 poeo act polluted land 142a 1 offence 2 31 january 2017 28 august 2017 inclusive near arcadia state new south wale committed offence 143 1 poeo act caused waste transported place could lawfully used waste facility waste 143 1 offence offence particularised amended summons filed court 26 april 2023 relate defendant caused fill brought placed property lot 1 dp 239444 22 geelans road arcadia property property bounded rural residential property similar character many heavily vegetated two offence took place seven month period 31 january 2017 28 august 2017 charge period pollutant amended summons relation 142a 1 offence waste amended summons relation 143 1 offence particularised follows material including soil brick concrete timber metal plastic tile rock rubble bitumen terracotta asbestos waste within meaning cl 109 protection environment operation general regulation 2009 cl 50 sch 1 poeo act manner breach particularised relation 143 1 offence defendant caused waste transported property truck manner breach particularised relation 142a 1 offence 1 defendant caused pollutant placed otherwise introduced onto land pollutant caused likely cause degradation land resulting actual potential harm health safety human being animal terrestrial life ecosystem actual potential loss property damage trivial pollutant prescribed nature description class namely 10 tonne asbestos waste within meaning cl 109 theprotection environment operation general regulation 2009and cl 50 sch 1 poeo act 2 defendant occupier premise land pollution land occurred charge period approximately 1 399 truck load fill material fill material transported property truck capacity approximately 30 tonne 20 000 tonne fill material considered prosecutor expert mr andre smit asbestos waste deposited mixed stockpile located south residence property stockpile defendant former employee company known ozzy earthmovers pty ltd ozzy earthmovers son mr amal mouawad charge period mr amal mouawad sole director ozzy earthmovers 4 december 2017 defendant mr mouawad formally changed name nsw registry birth death marriage mr boulos isaac arcadia investment holding pty ltd arcadia investment owner property date arcadia investment registration 24 april 2013 australian security investment commission asic pursuant tos 118of thecorporations act 2001 cth corporation act least 26 september 2017 mr david mark levy sole director shareholder arcadia investment mr levy also arranged company c n 616 168 695 pty ltd acn registered special purpose vehicle dealing contractor subcontractor relation future work property 1 october 2016 10 march 2017 mr levy lived mr maria teresa levy child residence located property 10 march 2017 mr ian miller contractor acn lived residence property outcomeduring charge period maximum penalty offence againsts 143 1 142a 1 poeo act case individual 250 000 determined impose following monetary penalty defendant reflecting 10 percent discount utilitarian value guilty plea entered 26 april 2023 1 penalty amount 135 000 relation 142a 1 offence 2 penalty amount 135 000 relation 143 1 offence applied discount 30 percent regard totality principle produce total penalty two offence amount 189 000 order effect related order set conclusion reason self represented defendantat sentencing hearing defendant self represented followed decision duggan j inenvironment protection authority v mouawad 3 2023 nswlec 44in notice motion defendant raised fitness tried relation three charge alleged prosecutor breach poeo act fitness judgment defendant argued mental illness resulted unfit trial dispute defendant suffered severe depression defendant prosecutor submitted psychological evidence impact defendant mental illness fitness trial honour duggan j dismissed defendant notice motion finding defendant fit stand trial 1 accepting opinion prosecutor neuropsychologist duggan j held opinion prosecutor neuropsychologist confirmed defendant interaction court defendant able understand direction given respond specific question respond focused manner evidence submission put senior counsel prosecutor cross examine witness standard comparable self represented litigant 2 commencement sentencing hearing made remark relation procedure followed hearing provided party copy relevant statutory provision namely s 142a 143 poeo act relation two offence defendant pleaded guilty 241 poeo act s 3a 21a thecrimes sentencing procedure act 1999 nsw csp act relation determination sentence confirmed party would opportunity address court explained defendant difference submission evidence honour shortly ask prosecutor give outline case relation sentence anticipates establish evidence purpose prosecutor opening address assist court understanding evidence given sentence hearing prosecutor say opening address evidence nothing outline prosecutor expects evidence establish prosecutor completed opening address right provide opening address refer issue dispute dispute however stage address must limited matter dealt prosecutor opening address wish matter propose raise relation sentence like prosecutor opening address say stage evidence honour must understand address assert fact charge supported evidence may give prosecutor permission make supplementary submission another address replying assertion see 162 criminal procedure act mr mouawad would like explain anything told please let know particular matter arises also took defendant document filed prosecutor defendant confirmed copy document onus standard proof sentencinga plea guilty admits matter essence charge legal ingredient offence 3 admit non essential ingredient offence 4 also relieve prosecutor obligation prove fact seek offender sentenced without offender assistance inga v queenat 30 5 high court said fact finding following plea guilty case plea guilty fact beyond necessarily involved element offence must proved evidence admitted formally agreed statement fact informally occurred present case statement fact bar table contradicted may significant limitation judge capacity find potentially relevant fact given case relation standard proof court may take fact account way adverse interest offender unless fact established beyond reasonable doubt 6 evidencethe prosecutor relied bundle primary document filed 22 january 2021 document identified amended list document filed 11 may 2023 nsw criminal history produced nsw police 9 may 2023 court judgment inmouawad v hill shire council 2013 199 lgera 28 2013 nswlec 165 mouawad v hill shire council prosecutor also read following affidavit 1 ryan verzosa affirmed 4 april 2023 procedural history proceeding 2 ryan verzosa affirmed 28 april 2023 cost investigation 3 ryan verzosa affirmed 5 may 2023 cost investigation 4 ryan verzosa affirmed 10 may 2023 search undertaken relation defendant continued involvement earthmoving industry company dynamic dwelling earthworx pty ltd dynamic dwelling earthworx 5 shanna staple affirmed 3 february 2018 resident 14 geelans road arcadia observed movement truck transporting fill material property waste classification guideline resource recovery exemptionsthe prosecutor also relied document titled waste classification guideline part 1 classifying waste published prosecutor environment protection authority epa november 2014 waste classification guideline waste classification guideline defined cl 50 sch 1 poeo act follows waste classification guidelinesmeans document entitledwaste classification guideline published epa force time time copy held office epa heading introduction waste classification guideline provide part waste classification guideline guideline cover classification waste group pose similar risk environment human health following class waste defined clause 49 schedule 1 theprotection environment operation act 1997 poeo act special waste liquid waste hazardous waste restricted solid waste general solid waste putrescible general solid waste non putrescible determine classification applies waste following step must followed order waste classification established particular step go next step waste taken classification must managed accordingly prosecutor relied following document 1 resource recovery exemption part 9 cll 91 92 theprotection environment operation waste regulation 2014 poeo waste regulation resource recovery exemption published nsw government gazette 21 november 2014 titled excavated natural material exemption 2014 read conjunction excavated natural material 2014 exempting consumer excavated natural material enm certain requirement poeo act poeo waste regulation relation application waste land provided consumer complies condition exemption enm exemption 2 resource recovery order part 9 cl 93 poeo waste regulation resource recovery order also published nsw government gazette 21 november 2014 titled excavated natural material order 2014 imposing requirement must met supplier enm enm exemption applies enm order 3 resource recovery exemption relation recovered aggregate therecovered aggregate exemption resource recovery order relation recovered aggregate recovered aggregate order also published nsw government gazette 21 november 2014 issued epa cll 91 92 cl 93 poeo waste regulation respectively enm exemption provided relevant time relevantly follows 1 waste exemption applies1 1 exemption applies excavated natural material intended applied land engineering fill use earthwork 1 2 excavated natural material naturally occurring rock soil including limited material sandstone shale clay soil excavated ground andb contains least 98 weight natural material andc meet definition virgin excavated natural material act excavated natural material include material located hotspot processed contains asbestos acid sulfate soil as potential acid sulfate soil pas sulfidic ore 2 person exemption applies2 1 exemption applies person applies intends apply excavated natural material land set 1 1 7 condition exemptionthe exemption subject following condition 7 1 time excavated natural material received premise material must meet chemical material requirement excavated natural material required supply excavated natural material excavated natural material order 2014 7 2 excavated natural material applied land engineering fill use earthwork 7 3 consumer must keep written record following period six year quantity excavated natural material received name address supplier excavated natural material received 7 4 consumer must make record required kept exemption available authorised officer epa request 7 5 consumer must ensure application excavated natural material land must occur within reasonable period time receipt enm order provided relevant time following notification requirement transaction notification4 9 transaction generator must provide following person generator supply excavated natural material written statement compliance certifying requirement set order met copy excavated natural material exemption link epa website excavated natural material exemption found copy excavated natural material order link epa website excavated natural material order found statement agreed fact plea deal defendant departure statement agreed factsthe party filed extensive statement agreed fact dated 28 april 2023 soaf defendant agreed soaf condition arrangement pursuant prosecutor withdrew charge 144 poeo act exchange plea s 142a 1 143 1 offence plea deal correspondence relation plea deal established 1 25 april 2023 prosecutor sent letter defendant making plea offer 2 term plea deal included defendant would accept amended statement fact served prosecutor 12 january 2022 preponderance reflected soaf plead guilty 142a 1 143 1 offence exchange prosecutor withdrawing 144 charge related particular 3 defendant accepted offer term email prosecutor 26 april 2023 email chain containing defendant acceptance plea deal evidence following entry guilty plea 26 april 2023 defendant directed file evidence 10 may 2023 outline written submission chose monday 15 may 2023 defendant file evidence submission prior hearing commenced 17 may 2023 first day hearing prosecutor opening defendant asked whether could provide written opening submission prosecutor consented course explained defendant distinction submission evidence directed defendant file serve written opening submission 9am 18 may 2023 defendant prosecutor emailed scanned handwritten document associate 9 30am resumption hearing 18 may 2023 prosecutor submitted document provided defendant contained evidence submission prosecutor submitted document admitted evidence defendant subject cross examination defendant consented called witness handwritten document tendered exhibit e cross examination defendant made various statement contradicted agreed fact soaf especially relation state mind prosecutor sought establish one recklessness defendant sought resile soaf particular following respect 1 contrary paragraph 13 soaf defendant denied role behalf ozzy earthmovers ensure fill material imported property virgin excavated natural material venm approved material prescribed construction deed entered ozzy earthmovers arcadia investment royal development group pty limited royal development 15 december 2016 relation landform modification work property construction deed 2 contrary paragraph 34 soaf defendant denied sending letter behalf ozzy earthmovers prosecutor letter dated 23 march 2017 sent email 28 march 2017 requesting resource recovery exemption relation fill transported property exemption request letter defendant said seen letter signature affixed end letter 3 contrary paragraph 35 soaf defendant denied receiving letter prosecutor dated 12 april 2017 reply exemption request letter stating prosecutor would progressing defendant application resource recovery exemption 4 contrary paragraph 43 44 soaf defendant denied conversation contractor acn mr miller around 10 march 2017 mr miller expressed concern rubbish transported property defendant reassured mr miller come classification enm would always find little bit perhaps asbestos coming old site particular site lot asbestos 5 contrary paragraph 60 soaf defendant denied conversation mr lee brown environmental consultancy firm progressive risk management prm told mr brown organised resource recovery exemption prosecutor receive material high rubble content generally defendant denied speaking environmental consultant prm term responsibility verify fill transported property compliant relevant resource recovery exemption defendant gave following evidence trying say never role peruse generally role environmental consultant engaged dave levy approve ian miller monitor track load excavator madam 10 hour day 25 acre site probably hundred meter away control role could approve come go dave levy consultant could approve opening site ian miller role could physically check load excavator hundred meter away excavating building rock wall take responsibility truth however yes made inquiry 24 may 2023 conclusion sentencing hearing leave prosecutor filed supplementary submission relation weight given defendant evidence extent contradicted soaf prosecutor submitted case involved unusual situation unrepresented defendant gave oral evidence cross examination contradicted aspect agreed set fact formed basis guilty plea statement agreed fact tendered consent prosecutor submitted starting point relation plea guilty formal admission legal ingredient offence 7 non essential ingredient offence 8 prosecutor submitted accept pleading offence defendant necessarily admitted could avail defence honest reasonable mistake fact referring relation operation defence context offence 143 poeo act tohills shire council v kinnarney civil earthwork pty ltd 9 prosecutor submitted accept nothing turn fact soaf signed defendant clear correspondence relation plea deal defendant acceptance soaf condition prosecutor withdrawing charge 144 poeo act sentencing hearing prosecutor said fact agreed defendant demur number occasion defendant informed court agreed soaf accordingly find beyond reasonable doubt defendant conduct adopted soaf submitted consider make direction theevidence act 1995 nsw evidence act applied sentencing proceeding 10 theevidence actapplied defendant would required leave adduce evidence contradicting qualifying agreed fact 11 question arises whether leave given adduce evidence defendant gave oral evidence answer question cross examination prosecutor submitted question arose consequence defendant seeking resile soaf 1 evidential status soaf 2 weight placed upon oral evidence given defendant insofar contradicted matter subject soaf evidential status soaf much content already subject agreement amended notice pursuant 247k thecriminal procedure act 1986 nsw cpa amended 247k notice served prosecutor 21 december 2020 time defendant legally represented subject direction requiring serve notice fact agreed amended 247k notice included relating 1 term construction deed entered 15 december 2016 acn royal development ozzy earthmovers landform modification work including importation fill property see 30 1 2 exemption request letter 23 march 2017 sent defendant prosecutor applying resource recovery exemption see 30 2 3 email sent defendant mr mr levy 28 september 2017 relation profit share agreement detection asbestos containing material property 28 september 2017 email 4 defendant exchange officer prosecutor property 15 august 2017 role site reflecting awareness waste certification process put place section 247m cpa applies proceeding court summary jurisdiction 12 relevantly provides 247mdispensing formal proof 1 fact matter circumstance alleged notice required given defendant prosecutor accordance division defendant required give defence response section 247k disclose response intention dispute require proof fact matter circumstance court may order document asserting alleged fact matter circumstance may admitted hearing proceeding evidence fact matter circumstance b evidence may without leave court adduced contradict qualify alleged fact matter circumstance section 247m cpa give presumptive evidential force fact alleged prosecutor 247j notice disputed defendant 247k notice reflects statutory imperative hold defendant position adopt factual matter context trial preparation would inconsistent statutory purpose pre trial process provided cpa matter resolved early stage proceeding able agitated later stage without cogent cause shown change position find defendant shown cogent cause change position generally independently operation 247m cpa regard content soaf part sentencing exercise basis content acknowledged defendant course sentencing hearing agreed prosecutor relied decision biscoe j inepa v ramsey food processing ramsey 13 honour considered circumstance defendant sought leave way formal application third day sentencing hearing contradict qualify fact agreed party statement agreed fact 14 inramsey agreed fact signed appear prepared pursuant pre trial process contemplated provision cpa relevantly biscoe j 1 considered impact ofs 4of theevidence act held thats 191did apply sentencing absence direction 15 2 considered case find analogous relating application leave withdraw plea guilty crown permitted adduce evidence issue defendant made admission 16 3 held onus party seeking leave contradict qualify agreed fact make case leave including circumstance came agree fact 17 4 highlighted strong policy reasoning underlying need uphold agreed fact namely n application contradict qualify agreed fact considered negotiation legal advice particularly made late hearing challenge integrity agreed fact procedure approached caution incentive party agree fact allow party back agreement easily encourage agreement first place general sense prejudice denying party right rely something reasonably thought agreed 18 5 identified factor weighing grant leave prosecutor submission analogy ought weigh favour agreed fact preferred evidence given defendant cross examination sought contradict qualify agreed fact satisfied soaf negotiated agreed careful process negotiation would considerable prejudice prosecutor defendant given leave adduce contradictory qualifying evidence sought given cross examination 19 find factor identified biscoe j inramseytend firmly grant leave permit defendant withdraw acceptance soaf observing application made defendant event nothing capable supporting finding defendant ought bound conduct agreeing soaf 20 defendant agreement soaf basis upon pleaded guilty sound policy reason regard provision cpa administration justice permit defendant depart agreement oral evidence court accept credible defendant oral evidence seeking minimise responsibility offending manner cutting across statement soaf example relation amended 247k notice defendant agreed 28 march 2017 letter bearing date 23 march 2017 sent exemption request letter prosecutor behalf ozzy earthmovers requesting resource recovery exemption application waste soil land property however cross examination shown correspondence referred soaf defendant sought distance letter see 30 2 find defendant contrary account inherently implausible accepted relation weight attributed defendant evidence cross examination extent evidence resiled soaf finding beyond reasonable doubt accordance soaf defendant contention relation procedural fairnesson several occasion cross examination defendant asserted unfairness insofar prosecutor relying document said access either phone hard drive apparently support submission possible interrogate provenance content document prosecutor submitted substance claim prosecutor referred materially similar contention raised defendant hearing amended notice motion filed prosecutor 15 july 2022 28 september 2022 moore j delivered ex tempore judgment putting place step ensure data imaged defendant device search warrant executed residential premise made available moore j satisfied step completed honour said 21 part various interlocutory proceeding taken place satisfied potential material may sought relied upon prosecutor either made available mr mouawad provided form morning hearing able access electronically hard drive served upon however eventuality instruction provided today able permit access remainder material relevant software issue resolved rendered resolvable morning afforded time limited opportunity mr mouawad seek matter relisted unable access material nothing material capable supporting finding defendant access material relied prosecutor background factsi turn background fact following background fact largely derived soaf underlying evidence referred therein work undertaken propertyon 10 august 2015 hornsby shire council council approved development consent 1373 2014 construction horse arena stable landform modification property development consent part landform modification development consent allowed fill imported property achieve filled finished level required development condition 28 development consent provided follows relation import landfill 28 landfilllandfill must constructed accordance council construction specification 2005 following requirement fill material imported site wholly consist virgin excavated natural material venm defined schedule 1 protection environment operation act 1997 material approved department environment climate change general resource recovery exemption venm defined part 3 schedule 1 poeo act follows virgin excavated natural materialmeans natural material clay gravel sand soil rock fine excavated quarried area contaminated manufactured chemical process residue result industrial commercial mining agricultural activity b contain sulfidic ore soil waste includes excavated natural material meet criterion virgin excavated natural material may approved time pursuant epa gazettal notice mid late 2016 defendant attended property intermittently commenced undertaking investigation determine much stone required build retaining wall carry preparatory work clearing land preparation importation fill defendant advised mr levy development work would take 12 14 month would need one machine 1 200 day initial period 6 week another machine 1 000 day duration project defendant also suggested fill supplier paying supply fill rather supplying free agreement defendant andmr levy time relation preparatory work property 29 november 2016 acn established australian registered company within meaning thecorporations act mr luke armstrong initially appointed sole director acn request mr levy extensive borrowing bank worried construction related claim contractor sub contractor accordingly wanted keep arm length 3 october 2017 filing soaf 28 april 2023 mr levy sole director acn construction deed relation importation fill propertyon 15 december 2016 acn entered construction deed royal development ozzy earthmovers carrying landform modification work property required development consent including relation importation fill property construction deed acn nominated developer royal development contractor required procure least 7 000 load fill material imported onto property ozzy earthmovers subcontractor required ensure fill material imported property 1 venm defined sch 1 poeo act approved material defined construction deed mean material approved department environment climate change general resource recovery exemption complies approved accordance legislative requirement law environmental law environmental requirement 2 undergone validation testing accordance relevant epa department environment climate change regulatory guideline confirm soil suitability certificate defined certificate issued accordance environmental requirement certifying fill material venm approved material issued waste classification certificate 3 complied resource recovery order resource recovery exemption 4 complied waste regulation defined construction deed mean poeo waste regulation 5 free waste rubbish asbestos hazardous material 6 tampered added following certification 7 treated handled transported imported strict compliance applicable environmental requirement whs requirement legislative requirement defined construction deed b accordance development consent c consistent direction acn developer construction deed profit share agreement defendant mr levyin december 2016 mr levy defendant entered verbal agreement fund received importation fill left expense gst 30 retention fund would shared 50 50 mr levy defendant profit share agreement fund received fill material directed acn profit share agreement acn make discretionary payment ejoi management service pty ltd ejoi defendant share profit importation fill arcadia propertyon 6 september 2016 defendant sent text message mr sami allam ace demolition excavation pty ltd ace demolition following term hi samii operate manage sandstone quarry landfill arcadia accept validated natural fill material also supply sandstone product large boulder rubble rock crushed sandstone filling slab preparation sub base let know assistance youregards paulfrom december 2016 defendant contacted possible landfill supplier made arrangement fill brought property fill material transported property eight source site source site follows 1 7 december 2016 3 load material described clean soil transported site 90 veteran parade narrabeen thenarrabeen site property 2 1 4 february 2017 17 load material described venm transported site 1a coulson street erskineville theerskineville site property 3 4 february 2017 2 load material described venm transported site 32 fitzwilliam road vaucluse vaucluse site property 4 10 march 2017 28 august 2017 236 load material described enm 1 039 load material described recovered aggregate transported site 105 115 portman street zetland thezetland site property 5 22 23 march 2017 52 load material described enm transported site 40 50 arncliffe street wolli creek wolli creek site property 6 3 18 may 2017 42 load material described enm transported site 23 bennelong parkway wentworth point wentworth point site property 7 19 26 may 2017 6 load material described enm transported site 350 northern road castle hill castle hill site property 8 27 july 2017 2 load material described recovered aggregate transported site willow retirement village northmead northmead site propertythis produce total 1 399 load material transported property charge period 31 january 2017 28 august 2017 agreed fact evidence capable supporting finding beyond reasonable doubt load truck load material refers amount fill truck dog meaning truck attached trailer carry report titled stakeholder engagement plan dated march 2018 prepared newgate engage behalf arcadia investment stated truck dog trailer carry approximately 30 tonne soil defendant also gave oral evidence know truck dog carry approximately 30 tonne fill material january february 2017 builder wolli creek site zetland site entered subcontract ace demolition excavation removal disposal material excavated site 9 february 2017 defendant sent text message mr levy requesting register arcadia landfill business name company order assist dealing landfill supplier 28 march 2017 name arcadia landfill registered asic business name acn subsequently used documentation email issued acn arcadia landfill 7 march 2017 2 48pm defendant sent text message mr levy stating left arcadia way meeting negotiate rate fill 7 56pm day defendant sent text message mr levy stating hi maria need send quote sami allam ace demolition excavationsite address cnr dunning avenue portman st zetlanddescription material enm course granular material 1 140 00 gst per truck dog loadon 21 march 2017 defendant sent text message mr levy advising rate enm material wolli creek site would also 1 140 per truck dog load zetland soaf similarly reproduced number text message exchange defendant supplier source site particular mr allam arranging transport fill property negotiating rate charge period 9 march 2017 defendant sent email mr allam ace demolition attaching document titled waste tracking form setting detail waste generator waste type transporter waste recovery facility waste tracking form defendant said email mr allam waste tracking form signed filled provided every truck load provided man gate mr miller waste tracking form contain prompt record detail particular waste classification certificate verifying classification fill material subject waste tracking form general operation arcadia landfillit agreed find beyond reasonable doubt charge period defendant site manager property responsible day day running site included arranging truck containing material delivered arranging subcontractor personnel assist making decision material would go defendant operated machine property controlled material placed defendant gave instruction driver either directly machine using mobile phone charge period general operation arcadia landfill follows 1 defendant organised arrangement landfill supplier using contact source fill various site 2 defendant found potential source site requested acn provide price list receipt fill site detail provided defendant 3 mr levy behalf acn prepared document titled landfill price list provided quote potential supplier cost disposing material property landfill price list supplied source site usually email mr levy 4 source site fill confirmed mr levy defendant whether agreed price quoted acn defendant made arrangement source site material transported property source site generally supplied truck however occasion defendant arranged truck transport material property 5 mr levy issued invoice source site disposal material property source site made payment directly bank account nominated acn mr levy engaged mr miller contractor acn gatekeeper property mr miller role secure site retain record material transported property visually inspect load material brought property mr levy visited property initially every day project progressed every week see work development consent progressing truck containing fill material arrived property following process ordinarily followed 1 truck entered property drove past residence turning circle defendant control site directed truck enter stage 2 truck entered turning circle mr miller gatekeeper took truck driver delivery paperwork waste tracking form verified supplying vehicle driver detail waste tracking form received course day mr miller later prepared run sheet recorded number truck delivered load particular day truck run sheet truck run sheet created mr miller assist mr levy invoicing source site deposited material property 3 truck unloaded area located behind residence designated defendant 4 soon truck unloaded material moved stockpiled around property excavator either defendant mr wayne bogal employee defendant payment received acn payment made profit share agreementthe table reproduced soaf summarises payment acn received relation transport material property eight source site listed 60 table also reproduced soaf summarises payment acn ejoi defendant profit share pursuant profit share agreement waste classification certificate prepared ei australia relation zetland site wolli creek sitein march 2017 mr levy behalf acn engaged independent environmental consultant prm carry consultancy work relation property 9 march 2017 mr nicholas passlow director principal consultant environmental risk prm sent email mr levy relation prm proposed involvement property mr passlow said discussed prm involvement follows review report provided source site confirmation inspection source site collection sample required communication gate keeper relevant information source site inspection weekly inspection receiving site collection progress photo discussion gate keeper compilation data finalfilling overview reportincluding comprehensive photograph log task reviewing report provided source site refers waste classification report prepared environmental consultant engaged source site waste classification report case ei australia pty ltd ei australia engaged ace demolition relation wolli creek site zetland site construction deed ozzy earthmovers required ensure source site environmental consultant behalf source site issued waste classification certificate verifying classification waste type material leaving source site entering property classification undertaken accordance waste classification guideline relation wolli creek site 2 march 2017 mr tony guirguis environmental consultant ei australia provided waste classification certificate date mr allam defendant relating approximately 250m3or400 tonnesof material material wolli creek site described stockpiled material sp5 resultant excavation western portion wolli creek site classified enm classification comment waste classification certificate said emphasis original material delivered must consistent description given material characterisation section waste management facility must satisfy appropriately licensed receive material described certificate table 1 attachment waste must removed site disposed facility accept type waste accordance nsw waste regulation 2014 classification applicable sp5 applicable material present site however agreed fact 52 load approximately1 560 tonne material described enm brought property wolli creek site exceeded 400 tonne material subject waste classification certificate relation wolli creek site relation zetland site material brought property two different period 10 march 2017 29 march 2017 first zetland period 9 june 2017 28 august 2017 thesecond zetland period first zetland period 7 march 2017 mr allam ace demolition sent email defendant attaching waste classification certificate prepared ei australia dated 23 february 2017 volume material zetland site described stockpile sp2 locate eastern portion site amount 2 000m3or3 600 tonne classified enm classification comment term set relation wolli creek site second zetland period 26 may 2017 mr guirguis provided waste classification certificate date mr allam defendant source material waste classification certificate approximate volume 875m3 or1 400 tonne described recovered aggregate material stockpiled sp20 resultant material excavation eastern portion zetland site following comment noted waste classification certificate emphasis original material suitable use accordance resource recovery order exemption epa 2014 two waste classification certificate evidence relation zetland site mr allam provided defendant 15 august 2017 1 waste classification certificate prepared ei australia dated 18 may 2017 identifying sampling date 11 july 2017 material subject waste classification certificate described stockpiled aggregate material sp42 resultant excavation eastern portion zetland site volume of4 000 tonne material classified recovered aggregate 2 waste classification certificate prepared ei australia dated 11 august 2017 relation material described stockpiled material sp43 resulting excavation eastern portion site volume 2 200m3 or3 960 tonne material classified enm agreed fact 236 load approximately7 080 tonneson assumption truck carried 30 tonne material described enm 1 039 load similarly approximately31 170 tonne material described recovered aggregate received property zetland site 10 march 2017 28 august 2017 exceeding amount specified waste classification certificate first second zetland period mr miller observation relation suspected asbestos fill imported property zetland siteaccording diary entry defendant around 6 march 2017 defendant visited zetland site inspect fill material ace demolition 10 march 2017 truck load material zetland site commenced transported property first load arrived mr miller expressed concern defendant could see brick tile material coming zetland site mr miller said word effect getting rubbish mr miller recalled defendant replying word effect okay come classification enm later day 10 march 2017 mr miller observed material suspected asbestos load delivered property ace demolition zetland site mr miller told defendant suspect material defendant responded word effect look worry matter bring would always find little bit perhaps asbestos coming old site particular site lot asbestos always find piece asbestos stage material coming 11 march 2017 mr miller observed piece suspected asbestos material delivered zetland site mr miller put sample suspected asbestos plastic bag later provided epa subsequently analysed tested positive asbestos either 11 12 march 2017 mr miller mr levy defendant held meeting garage property defendant said mr miller word effect role tell look truck paperwork complaint getting way trying listen conversation mr levy also said mr miller word effect role sic look paperwork keep eye coming make sure material according da end paul charge site anyone come sic council speak paul inspection property progressive risk managementon 13 march 2017 mr brown mr passlow prm attended property met mr levy mr miller mr passlow observed stockpiled material appeared contain high concentration building rubble reconcile information waste classification report provided mr levy mr levy mr miller told mr passlow fill material stage yet imported property process obtaining exemption epa material coming site 16 march 2017 mr brown inspected wolli creek site zetland site prior inspection mr brown provided waste classification certificate dated 2 march 2017 relation wolli creek site see 76 waste classification certificate dated 23 february 2017 relation zetland site see 79 certificate indicated approximately 400 tonne material wolli creek site 3 600 tonne material zetland site classified enm upon inspection wolli creek site mr brown observed stockpile material two soil profile upper profile consisting black sand rubble lower profile consisting grey white sand mr brown considered lower soil profile suitable import property upper soil profile suitable upon inspection zetland site mr brown observed excavated material processed sieve screening machinery mr brown considered resulting processed material enm suitable import property observed presence building rubble suspected asbestos containing material within soil 16 march 2017 following inspection wolli creek site zetland site mr brown conducted inspection property mr miller present mr brown observed material placed one large stockpile suspected asbestos containing material small fragment building rubble including brick terracotta ceramic tile glass concrete material mr brown considered stockpiled material enm observed material similar appearance material seen zetland site mr brown also observed three piece suspected asbestos containing material ground near turning circle mr miller informed mr brown material observed property delivered zetland site approximately 20 truckloads material delivered property zetland site mr brown expressed mr miller major concern observed asbestos containing material property material compliant venm enm mr miller said mr brown one incident caused truck zetland site already organised material reloaded truck transported property mr miller also advised mr brown exemption epa allows importation minor rubble within soil would send exemption development consent mr brown email mr brown strongly suggest ed mr miller cease importation material zetland site immediately 17 march 2017 mr passlow sent email mr levy mr miller outlining result mr brown inspection 16 march 2017 email mr passlow provided following summary based upon result visual inspection material represented provided certificate deposited site currently extent chemical asbestos contamination material known material considered comply condition da council epa inspect site immediately would issue cleanup notice well potentially rescind da 21 march 2017 mr miller sent email mr passlow stating mr brown inspected property extensive consistent series rain event 13 march 2017 mr miller identified removed property three piece suspected asbestos truckload 27 march 2017 mr brown conducted inspection property mr miller present mr brown observed stockpile suspected asbestos containing material occasion mr miller told mr brown defendant organised epa exemption import building rubble onto site 30 march 2017 mr brown sent email mr miller copied mr levy containing link nsw epa website information apply environment protection licence 13 june 2017 mr brown conducted inspection property spoke mr miller defendant mr brown expressed concern suspected asbestos containing material amount rubble stockpiled material occasion defendant told mr brown organised exemption epa receive material high rubble content mr brown deposed never received copy epa exemption september 2017 prm withdrew service mr levy mr miller reason become apparent mr passlow mr brown 13 june 2017 mr levy mr miller acting accordance prm advice application epa resource recovery order resource recovery exemptionon 28 march 2017 m aisling carroll waste resource recovery prosecutor received email paul aussieearthmovers com au subject line resource recovery exemption mr guirguis ei australia also copied email email said spoke week ago regarding landform modification project arcadia little getting required information application finally done attached application perusal assessment tony environmental consultant detail application feel free contact require clarification course call directly commenced early work land clearing mind earliest attention would much appreciated attached email exemption request letter 23 march 2017 addressed m carroll subject line application resource recovery exemption lot 1 dp239444 geelans road arcadia nsw email signed paul mouawad f behalf ozzy earthmovers pty ltd letter said 2 background informationozzy earthmovers pty ltd nominated civil contractor behalf site owner mr david levy mr maria levy arcadia holding modify landform site approved council shire hornsby da 1373 2014 development involves construction sic horse arena stable attached copy appendix b development consent including construction environmental management plan formed part council issued construction certificate reference civil work require importation estimated quantity suitable fill material approximately 120 000m3 majority required fill require specific geotechnical property eg compactable clay include sand gravel clay rock combination foreign inclusion brick concrete would form characteristic type soil suitable imported purpose backfill fill material required sourced largely various excavation site sydney due large quantity material required material need assessed project project basis ensure chemical composition suitable application site 3 characterisation source materialthe source material characterised according schedule presented appendix assessment source material must conducted source entity need include following property location description history e current previous us detailed description assessed material including photographic log borehole log borehole log assessed material insitu methodology sampling analysis analysis must conducted nata accredited laboratory laboratory result qa qc result discussion calculation average concentration sample standard deviation 95 upper confidence limit ucl average concentration chemical concern per batch conclusion 95 ucl mean concentration highest concentration le 10 sample collected le equal limit value specified chemical concern batch statement regarding suitability material relation criterion source assessment certificate batch source material required undergo review environmental consultant ei australia inspection source material prior approval source material transport site 7 quality assurance controlsquality control requirement soil investigation classification phase source property detailed material imported site visually assessed ozzy earthmovers pty ltd unloading ensure characteristic material received consistent identified source assessment certificate additionally material imported site logged recorded every individual load truck trucking sic docket issued driver material fail visual assessment held separately onsite bunded material source property allowed onsite verification site environmental consultant site environmental consultant identifies material unsuitable material reloaded transport back source property 12 april 2017 m helen prifti manager waste strategy innovation prosecutor sent letter defendant response defendant application received 28 march 2017 resource recovery order resource recovery exemption m prifti wrote following consultation environmental consultant tony guirguis ei australia environment protection authority epa considers material propose source may able land applied following excavated natural material order 2014 excavated natural material exemption 2014 batch process recovered fined order 2014 batch process recovered fine exemption 2014 result epa willnotbe progressing application excavated material meet requirement mentioned order epa would happy ass material land application fill specific order exemption please note specific order exemption issued site appropriate development consent receive waste material 21 may 2017 mr shane ryan operation officer waste strategy innovation prosecutor received following email paul aussieearthmovers com au subject line resource recovery exemption 22 geelans road arcadia kindly confirm material intend importing fill classified recovered aggregate general exemption regard paul mouawadozzy earthmovers pty ltdon 22 may 2017 mr ryan responded defendant email follows please aware environment protection authority doesnotprovide waste classification service responsibility waste generator appropriately classify waste information provided material may meet requirement recovered aggregate recovered aggregate order 2014 see attached document would need ass material criterion specified order information already material meet requirement recovered aggregate order use subject requirement recovered aggregate exemption also attached happy discus question 29 may 2017 defendant forwarded mr ryan email 22 may 2017 mr allam sami acedemolition com au copied also mr guirguis saying attached email epa approving material landfill accordance existing approval epa resource recovery exemption tony emailed corresponding waste classification report last friday copy also let know running truck tomorrow organize traffic control regard paul mouawad13 july 2017 inspection property councilon 13 july 2017 m nichola clarke compliance team leader council conducted site inspection property inspection m clarke introduced defendant site supervisor ozzy earthmovers earthwork undertaken property inspection m clarke observed fill stockpiled near residence m clarke queried chain custody process relation material imported site defendant said site auditor consultant present zetland site oversees content material excavated prior leaving site defendant said upon truck arriving property onsite caretaker mr miller reviewed tracking docket ensuring time site consistent trip issued delivery docket driver stating time truck arrived 15 august 2017 7 september 2017 inspection property prosecutoron 12 july 2017 prosecutor received report member public described witnessed alleged illegal dumping soil mixed material property prosecutor first inspected site 15 august 2017 prosecutor first site inspection 15 august 2017 officer prosecutor m stephanie todd mr joshua madden observed large stockpile material appeared comprise soil brick concrete timber metal plastic tile contaminant m todd mr madden asked defendant number question material defendant said material engineered fill material meeting definition recovered fine batch instead meet classification recovered aggregate m todd mr madden collected number sample stockpiled material analysis office environment heritage oeh environmental forensics 1 september 2017 confirmed presence elevated level chemical contaminant 30 august 2017 prosecutor received two report member public first caller alleged waste material including soil contaminated diesel suspected asbestos illegally dumped property second caller alleged many tonne building material dumped property 7 september 2017 m todd along officer prosecutor m laura ansted mr damien rose conducted site inspection m todd m ansted mr rose observed large stockpile material containing tile metal particleboard brick concrete fragment potential asbestos containing material occasion mr miller told m todd majority stockpiled material zetland site prosecutor officer collected number sample stockpiled material including 10 sample suspected asbestos containing material 9 sample surface stockpile one depth approximately two metre centre stockpile analysis sample oeh environmental forensics 12 september 2017 27 september 2017 confirmed presence elevated level chemical contaminant material presence asbestos 10 sample inspection 7 september 2017 mr rose gave following clean direction verbally mr miller 1 work stockpile work receiving waste property stop recommence advised prosecutor 2 property owner engage suitably qualified person occupational hygienist ass risk asbestos contamination throughout stockpile b person provide direction contain risk asbestos stabilise stockpile property ensure potential impact resident neighbour worker onsite 3 property owner contact prosecutor provide copy document reflecting second direction given mr rose 4 effective sediment control installed work including excavation 5 property owner respond prosecutor friday 8 september 2017 providing timeframe complying fourth direction given mr rose also 7 september 2017 mr rose spoke mr levy phone notified mr levy verbal clean direction given mr miller day 28 september 2017 email defendant mr mr levyon 28 september 2017 defendant sent email mr mr levy stating follows relation detection asbestos containing material property firstly guy front neighbor sic start would never gained medium attention secondly told truth advice given independent auditor back june nick parslow sic advised ian dave material report provided personally would stopped ace told truth information disclosed bloody hell held team ian conveniently sent part correspondence beg sic record incompetence pure laziness refusal main role check bloody load blind freddy could seen fragment notwithstanding email nick also highly detrimental dave term liability culpability told guy run everything past great deal experience matter confided dave previous issue hill council epa first went site made statement would made go away yet guy foresight keep loop yet guy treated though fault accused thief cause truth 20 september 2017 clean notice issued prosecutor action pursuant clean noticeon 20 september 2017 prosecutor issued clean notice 1556544 arcadia investment landowner property pursuant 91 poeo act clean notice clean notice directed amongst thing effective sediment control installed maintained property waste classification report prepared suitably qualified expert provide prosecutor result sampling classification fill material property 25 october 2017 prosecutor issued variation clean notice 1557934 arcadia investment pursuant 110 poeo act varying clean notice extend due date providing waste classification report 19 october 2017 27 october 2017 27 october 2017 prosecutor received waste classification report pursuant clean notice prepared benviron group titled soil classification report number e1527 dated 26 october 2017 soil classification report soil classification report outlined objective scope work benviron group follows 2 0 objectivesthe objective waste classification ass size composition situ material ass nature extent contamination material determine classification material accordance thewaste classification guideline part 1 classifying waste epa nsw 2014 3 0 scope workto achieve objective benviron group completed following scope work collection soil sample material disposed within site submission sample nata accredited analytical laboratory analysis production waste classification report 20 november 2017 prosecutor received revised waste classification report prepared benviron group titled soil classification report number e1527 r1 dated 20 november 2017 revisedsoil classification report revised soil classification report concluded soil concentration tested analytes shown table 1 exceed ct1 contaminant threshold value nsw epa 2014 epa waste classification guideline tclp toxicity characteristic leaching procedure testing carried onthe 10 11 17 order classify material within filled material within investigation area result tclp 1 scc1 specific contaminant concentration criterion exception soil vicinity tp10 5 exceed scc1 guideline criterion pah polycyclic aromatic hydrocarbon reference site walkover attached site plan following laboratory analysis reference nsw epa guideline imported material found classified follows special waste sample except tp10 5 restricted waste within tp10 5based concentration within sample tp10 5 recommended delineation testing undertaken onthe sample order reduce amount material required removed restricted waste offsite disposal 7 december 2017 prosecutor issued variation clean notice 1558720 arcadia investment pursuant 110 poeo act varying clean notice require arcadia investment provide remediation option report 2 march 2018 2 march 2018 prosecutor received remediation option report titled remediation option plan report number e1527 2 dated march 2018 remediation option plan remediation option plan proposed number remediation strategy property recommended site capping methodology adopted stated 5 3 1 available remediation management technology review available soil remediation method technology indicated following strategy may applicable remediation fill material contaminated concentration exceeding health based threshold concentration excavation site disposal contaminated soil landfill treatment site site managing risk posed contaminant preventing direct exposure pathway known potential contaminated soil user proposed development capping assessment phytotoxic health risk 5 10 preferred remediation optionthe preferred remediation option site capping following reason lower civil impact reduced risk community minimal disturbance asbestos impacted soil reduced transport tipping cost reduction soil disposed landfill 18 december 2017 volumetric survey propertyon 18 december 2017 mr daniel craker freeburn surveyor carried volumetric survey stockpile property instruction prosecutor volumetric survey prosecutor received result volumetric survey date according mr craker volumetric survey survey volume area case stockpile fill volumetric survey calculation base surface stockpile surface depicts volume stockpile mr craker volumetric survey stockpile imported fill material property 18 december 2017 determined volume stockpiled material approximately 11 360m3 expert evidence mr andre smit dr daniel marten stockpiled materialmr andre smit technical director ghd pty ltd prepared expert report instruction prosecutor titled arcadia stockpile waste classification dated 4 june 2018 relation analysis 40 soil sample taken stockpile fill material property smit report preparing report mr smit undertook following scope work 1 review existing information including 12 waste classification certificate three resource recovery certificate prepared ei australia relation material zetland site wolli creek site one waste classification report prepared ade consulting group relation wentworth point site two waste classification report prepared benviron group relation property volumetric survey property 2 inspection stockpiled material property discussion epa representative regarding content potential origin stockpiled material 3 removal existing geofabric cover stockpile property facilitate sampling 4 collection representative sample stockpiled material property logging observation 5 carrying asbestos fibre monitoring air 6 reinstatement geofabric covering following completion sampling 7 submitting sample accredited laboratory analysis 8 analysis sample total recoverable hydrocarbon benzene toluene ethylbenzene xylene naphthalene polycyclic aromatic hydrocarbon eight metal arsenic cadmium chromium copper nickel lead zinc mercury organochlorine pesticide polychlorinated biphenyls asbestos 9 data statistical analysis laboratory result 10 additional analysis selective sample lead benzo pyrene using procedure known toxicity characteristic leaching procedure 11 preparing waste classification report accordance waste classification guideline report mr smit opined follows emphasis original asbestos detected nata accredited laboratory 13 40 sample analysed nsw epa 2014 defines asbestos waste waste contains asbestos supported detection asbestos benviron 2017b nsw epa discernible distribution visually distinct material vicinity bh304 0 7 3 1 mbgl estimated area indicated inappendix bexceeded scc1 scc2 criterion b p asbestos detected bh304 presence asbestos area cannot reasonably ruled given apparently random distribution contaminant stockpile material vicinity bh304 0 7 3 1 mbgl therefore considered classified special waste asbestos waste hazardous waste remaining stockpiled material e exception localised material around bh304 therefore considered classified special waste asbestos waste imported fill material assumed 11 360m3 freeburn survey result considered asbestos waste based prevalence bonded fibrous asbestos detected multiple location discernible patter regard distribution material type assuming average bulk density 1 8 tonne m3 equates approximately 20 000 tonne none material classified restricted solid waste 1000m3 hazardous waste identified vicinity bh304 0 7 3 1 mbgl assuming average bulk density 1 8 tonne m3 equates approximately 1800 tonne follows find beyond reasonable doubt defendant caused20 000 tonnesof asbestos waste transported deposited property charge period dr daniel marten principal engineer scientist director marten associate pty ltd prepared expert report instruction prosecutor titled waste stockpile 22 geelans road arcadia nsw dated 22 october 2018 marten report dr marten inspected property 10 july 2018 observed extent stockpile imported fill local topography vegetation community local drainage system dr marten prepared report regard observation property undertaken review following material 1 smit report 2 waste classification guideline 3 national environment protection council national environmental protection assessment soil contamination measure schedule b1 guideline investigation level soil groundwater 2013 4 soil classification report prepared benviron group dated 26 october 2017 5 revised soil classification report prepared benviron group dated 20 november 2017 6 volumetric survey undertaken mr craker 18 december 2017 7 historical aerial photograph property obtained nearmap online aerial photography supply service 8 topographic map property local surrounding area accessed nsw six map online mapping service provided nsw department finance service 9 daily rainfall data hornsby swimming pool monitoring station obtained bureau meteorology online rainfall data access system report dated 22 october 2018 dr marten opined follows 1 leachate generated discharged within stockpile property containing elevated level heavy metal including lead copper zinc hydrocarbon form benzo pyrene total petroleum hydrocarbon tph polycyclic aromatic hydrocarbon pah caused degradation quality local groundwater surface water soil plant ecosystem local environment causing actual harm groundwater surface water soil plant ecosystem directly downstream stockpile 2 leachate generated discharged within stockpile property containing salt nutrient ammonia nitrate phosphorus also potential cause harm groundwater surface water soil plant ecosystem directly downstream stockpile 3 level degradation harm likely increase time moisture level within stockpile increased 4 presence asbestos within waste stockpile presented ongoing material risk human exposure asbestos contaminated material 5 result placement fill property caused degradation land degradation resulted actual potential harm health safety human being animal terrestrial ecosystem opinion trivial relevant statutory provisionssection 142a poeo act charge period provided relevantly 142a pollution land 1 person pollutes land guilty offence maximum penalty b case individual 250 000 case continuing offence penalty 60 000 day offence continues 2 section pollute landincludes cause permit land polluted section 142a since amended effect maximum penalty offence 142a case individual 500 000 offence involves asbestos waste 250 000 case continuing offence penalty 60 000 day offence continues section 143 1 poeo act charge period provided 143 unlawful transporting depositing waste 1 offence person transport waste place cannot lawfully used waste facility waste cause permit waste transported person b person owner waste owner guilty offence maximum penalty case corporation 1 000 000 b case individual 250 000 section 143 1 similarly amended since charge period effect maximum penalty offence 143 case individual 500 000 offence involves asbestos waste 250 000 object poeo act set 3 relevantly include 3 object actthe object act follows protect restore enhance quality environment new south wale regard need maintain ecologically sustainable development reduce risk human health prevent degradation environment use mechanism promote following pollution prevention cleaner production ii reduction harmless level discharge substance likely cause harm environment iia elimination harmful waste iii reduction use material use recovery recycling material iv making progressive environmental improvement including reduction pollution source v monitoring reporting environmental quality regular basis purpose sentencing set 3a csp act follows 3a purpose sentencingthe purpose court may impose sentence offender follows ensure offender adequately punished offence b prevent crime deterring offender person committing similar offence c protect community offender promote rehabilitation offender e make offender accountable action f denounce conduct offender g recognise harm done victim crime community section 241 poeo provides relation matter considered imposing penalty follows 241 matter considered imposing penalty 1 imposing penalty offence act regulation court take consideration following far relevant extent harm caused likely caused environment commission offence b practical measure may taken prevent control abate mitigate harm c extent person committed offence could reasonably foreseen harm caused likely caused environment commission offence extent person committed offence control cause gave rise offence e whether committing offence person complying order employer supervising employee 2 court may take consideration matter considers relevant sentencing defendant take account object poeo act purpose sentencing set 3a csp act matter considered imposing penalty set 241 poeo act objective seriousness offencethe objective seriousness offence measured without reference matter personal offender determined wholly reference nature offending 22 determining objective gravity seriousness offence circumstance court may regard include 23 1 nature offence 2 maximum penalty offence 3 harm caused environment commission offence 4 defendant state mind committing offence 5 defendant reason committing offence 6 foreseeable risk harm environment commission offence 7 practical measure avoid harm environment 8 defendant control cause harm environment factor overlap statutory sentencing consideration 241 poeo act set 137 prosecutor submitted objective feature offence place offending medium high range objective seriousness nature offenceswhen sentencing environmental offence fundamental consideration degree regard maximum penalty provided statute offender conduct would offend legislative objective expressed statutory offence 24 nature provision creating offence place statutory scheme shed light objective seriousness offence 25 ascertaining purpose creating offence assisted consideration object statute 26 objective seriousness environmental offence illuminated nature statutory provision contravention constitutes offence place statutory scheme proper understanding purpose creating offence assisted consideration object statute 27 fundamental consideration degree regard maximum penalty prescribed statute offence offender conduct would offend legislative objective expressed offence 28 defendant conduct involved causing importation waste material including asbestos waste property could lawfully used waste facility waste conduct prosecutor submitted find offended legislative objective s 142a 143 poeo act thwarted achievement object set 3 poeo act including ecologically sustainable development beneficial protection environment human health inbankstown city council v hanna bcc v hanna 29 preston cj said 53 55 53 poeo act also specifically proscribes certain conduct concerning transporting depositing waste without lawful authority includes use place waste facility premise used storage treatment processing sorting disposal waste see dictionary poeo act 144 1 poeo act transporting waste depositing waste place cannot lawfully used waste facility waste 143 1 poeo act polluting land depositing waste land 142a l poeo act prohibition conduct prevents land pollution impact environment including harm human health person carry conduct licence issued authorising person application approval licence ensures proper assessment conduct land conduct proposed carried environmental impact conduct well assessment whether person fit proper person carry conduct including whether person contravened poeo act convicted waste offence s 142a l 143 1 144 1 poeo act 54 statutory provision requiring application approval assessment approval activity linchpin statutory scheme offence provision thwart achievement object poeo act including ecologically sustainable development undermines integrity regulatory scheme poeo act 55 general statutory provision supplemented particular provision dealing waste asbestos waste clause 42 waste regulation prescribes special requirement relating transportation site disposal asbestos waste together general statutory provision particular regulatory provision intended ensure waste containing asbestos transported disposed safe healthy manner landfill site may lawfully receive waste prevent harm environment particularly human health prosecutor submitted find beyond reasonable doubt failing obtain environment protection licence failing adhere requirement r esource r ecovery e xemption defendant action undermined integrity regulatory scheme poeo act place ensure waste including asbestos disposed safely manner prevents harm environment human health maximum penalty offencethe maximum penalty statutory offence serf indication relative seriousness offence yardstick measure relevant feature offence defendant sentenced 30 careful attention maximum penalty almost always required amongst thing invite comparison worst possible case case court time 31 charge period maximum penalty offence 142a 1 poeo act case individual 250 000 32 maximum penalty offence 143 1 poeo act case individual charge period likewise 250 000 33 prosecutor submitted maximum penalty great relevance determining objective gravity offence 34 reflects public expression parliament seriousness offence viewed 35 defendant state mind committing offencethe defendant state mind central point contention hearing sentence prosecutor provided lengthy submission defendant state mind outline opening submission filed 12 may 2023 prior hearing supplementary submission filed 24 may 2023 addressing matter arose defendant denial recklessness exhibit e cross examination offence 142a 1 143 1 poeo act strict liability offence prosecutor submitted defendant committed 142a 1 offence recklessly state mind defendant could also taken account purpose considering objective seriousness 143 1 offence albeit factor aggravation relevance state mind relation 142a 1 offence polluting landin relation 142a 1 offence polluting land prosecutor submitted offence committed intentionally recklessly negligently serve increase objective seriousness offence 36 prosecutor relied particular decision pepper j inenvironment protection authority v albiston albiston 37 honour articulated principle relevant finding recklessness follows 98 inplath v vaccount pty tableland timber 2011 nswlec 202the court considered test recklessness 98 98 term recklessness describes state mind offender performing failing perform act aware risk particular consequence likely sense probable possible result act omission pemble v r 1971 hca 20 1971 124 clr 107 la fontaine v r 1976 hca 52 1976 136 clr 62andr v crabbe 1985 hca 22 1985 156 clr 464 recently inblackwell v r 2011 nswcca 93 court criminal appeal described mental element reckless 76 76 effect line authority mental element offence recklessness crown must establish foresight possibility relevant consequence 99 offender conduct found reckless put notice sense believe suspect act omission may unlawful nevertheless proceeds engage without making enquiry director general department environment climate change v hudson 2 2015 nswlec 110at 136 citingchief executive office environment heritage v rummery 2012 nswlec 271 2012 192 lgera 314at 126 andchief executive office environment heritage department premier cabinet v turnbull 2014 nswlec 150at 141 100 court described difference recklessness negligence follows inenvironment protection authority v ridley agriproducts pty limited 2019 nswlec 119 71 72 71 inchief executive office environment heritage v brummell 2019 nswlec 114 brummell 51 preston j noted critical difference recklessness negligence recklessness measured subjective standard referent offender negligence measured objective standard referent hypothetical reasonable person 72 offender reckless commission offence need knowledge foresight likelihood consequence circumstance occurring sense ofa real remote chance brummell 52 pertaining different factual circumstance present matter inchief executive office environment heritage v rummery 2012 nswlec 271 2012 192 lgera 314at 126 pepper j considered recklessness context clearing native vegetation follows offender conduct classified reckless put notice sense belief suspect clearing native vegetation may unlawful nevertheless proceeds undertake clearing without making enquiry director general department environment climate change water v linklater 2011 nswlec 30at 50 anddirector general department environment climate change v olmwood 2 2010 nswlec 100at 50 inalbiston pepper j found waste storage offence charged 144 1 poeo act committed recklessly part applicable charge period case defendant notice conduct storing waste relevant premise might unlawful warned environment protection licence required store relevant quantity waste evidence made enquiry confirm licence place 38 prosecutor drew comparison present case submitted least 11 march 2017 defendant notice likelihood fill material brought property zetland site contained asbestos foresight possibility future delivery zetland site would also contain asbestos relation standard recklessness prosecutor relied onenvironment protection authority v crush haul pty ltd environment protection authority v cauchi 39 city parramatta council v sydney tree excavation demolition pty ltd 40 andaland b w pty ltd v blacktown city council aland 41 relation 142a 1 offence polluting land satisfied available find find beyond reasonable doubt defendant reckless commission offence aggravating factor determination penalty offence 142a 1 relevance state mind relation 143 offencein relation 143 1 offence prosecutor properly referred principle inthe queen v de simoni de simoni 42 whichprevents offender state mind taken consideration offence would expose offender punishment serious offence namely offence wilfully negligently disposing waste manner harm likely harm environment contravention 115 poeo act 43 however inenvironment protection authority v hanna epa v hanna preston cj accepted defendant state mind could increase objective seriousness also aggravating factor 21a 2 n csp act planned organised activity relation 143 offence although case chief judge mindful avoid double counting factor increase objective seriousness offence 44 prosecutor submitted approach inepa v hannawas preferred difficult see howde simoniwould apply 143 offence given nature 143 offence unlawful transport material whereas nature 115 offence comparison wilful disposal waste prosecutor submitted court find principle inde simoniprevented defendant state mind considered factor aggravation 143 1 offence court could nevertheless take account assessing objective seriousness offence relying onhughesat 87 environment protection authority v sydney water corporationat 158 45 andalandat 85 86 similarly prosecutor submitted principle inde simoniis offended otherwise offending conduct considered purpose assessing need specific deterrence 46 circumstance satisfied available take account defendant state mind aggravating factor relation 143 1 offence however thede simoniprinciple preclude considering evidence relating defendant state mind go objective seriousness offence need specific deterrence conclusion relation defendant state mindfrom march 2017 defendant notice likelihood asbestos load material delivered zetland site took step halt delivery property site may june 2017 defendant continued arrange importation additional material zetland site even concern raised mr brown prm 13 june 2017 exemption request letter see 103 prosecutor regarding step would taken way quality control assurance event exemption granted also support finding beyond reasonable doubt defendant aware need fill coming property classified environmental consultant step taken ensure material imported material classified defendant implement measure identified necessary exemption request letter prosecutor established beyond reasonable doubt 1 fill received property subject waste classification certificate prepared qualified environmental consultant 2 system place assessing whether material transported met description certificate issued source site example mr miller role check driver waste tracking form validate fill carrying waste classification certificate issued source site evidence defendant took step 3 evidence fill material relation potential asbestos containing material identified sent back source site concern raised content notwithstanding claim may made prm time also evidence defendant would continued offend bringing significantly larger volume fill property activity halted regulator see reference exemption request letter 120 000m3 fill mr smit conversion cubic metre tonne would approximately 216 000 tonne defendant intended import property considered evidence find beyond reasonable doubt defendant would continued bring significantly larger volume fill property activity halted regulator way verbal clean direction 7 september 2017 fact established beyond reasonable doubt bear upon objective seriousness offence well need specific deterrence defendant understanding waste compliance whether responsible exemption request letterin exhibit e defendant contended follows state mind recklessness never intent polluting land due diligence carried prior commencement objective executing civil construction work per contract builder royal owner arcadia investment dave levy scope harvest quarry sandstone within property construct 200mm sandstone retaining wall fill compact required reduced level never intent premeditation commit offence whatsoever part due diligence ensuring material complied approval hornsby council environmental consultant engaged visit source site required testing obtain waste classification report validate soil believed proper step due diligence place carried tracking monitoring checking load prior tipping prosecutor submitted assertion defendant gave rise question level awareness defendant composition fill brought property actual potential contamination defendant gave evidence worked civil contracting demolition earthwork approximately 25 year accepted 2017 good understanding regulatory framework respect waste disposal new south wale agreed 2017 knew order transport fill one location another material needed tested ensure fell within relevant exemption needed waste classification certificate issued fill confirming material fell within relevant exemption knew material venm necessary establish covered resource recovery exemption fill tested also agreed 2017 knew person receiving site needed check material delivered consistent observation waste classification certificate prosecutor submitted find beyond reasonable doubt exemption request letter 23 march 2017 show understanding part defendant contemporaneous charge period need proper chain custody procedure fill order ensure fill validated pursuant waste classification certificate source site fill dispatched receiving site also find oral evidence defendant appreciating significance exemption request letter sought unconvincingly dissociate including claiming forgery reject lacking credibility defendant evidence relation exemption request letter following reason 1 soaf defendant admitted sent exemption request letter 2 claimed oral evidence applied specific resource recovery exemption admitted soaf dealing mr brown prm done 3 exhibit e admitted multiple communication prosecutor exemption particular said part due diligence contact ed epa several occasion prior commencement identif ied identif ied property geelans rd discus ed applicable part resource recovery exemption 4 exemption request letter letterhead ozzy earthmovers sole director defendant mother however defendant accepted correct put f intent purpose ozzy earthmovers business ran 5 text message defendant mr guirguis ei australia around 4 10 march 2017 defendant requested assistance mr guirguis making application epa submitted defendant particular 4 march 2017 defendant sent text message mr guirguis following term hi tonyis application form completedneed submit mondayand 10 march 2017 mr guirguis sent text message defendant following term hi paul someone reviewing afternoon 6 exemption request letter sent prosecutor 28 march 2017 attachment email email address defendant acknowledged email address sent correspondence 7 prosecutor sent reply exemption request letter ozzy earthmovers postal address po box 70 oatlands dated 12 april 2017 8 whilst defendant said signature exemption request letter whilst court profess posse expertise relation handwriting observe signature bear close resemblance signature name letter dated 12 april 2023 court defendant agreed sent behalf doubt signature made wife find inherently implausible anyone defendant wife signed exemption request letter sent regulator either case find beyond reasonable doubt defendant aware content letter knew sent regulator defendant suggest otherwise oral evidence reflects adversely credit contrition defendant control process fill validationlikewise defendant attempt oral evidence distance position control process verifying whether fill brought property compliant development consent poeo act waste regime rejected defendant responsibility control process fill validation established beyond reasonable doubt following 1 construction deed ozzy earthmovers required verify fill comply condition resource recovery exemption see 57 2 defendant stood profit importation fill profit share agreement mr mr levy see 58 73 3 defendant point contact supplier fill intermediary supplier mr levy prepared invoice behalf supplier see 59 4 exchange mr miller defendant sought assure mr miller composition fill see 84 88 5 defendant liaised council relation fill material response query raised council site inspection 13 july 2017 see 108 109 6 defendant provided waste classification certificate fill zetland site either ace demolition ei australia see 76 81 7 defendant supplied pro forma template tracking form detail used part fill importation process see 67 defendant agreed cross examination trying set system verification fill went property 47 47 owever verification process put place defendant include facility match imported waste waste classification certificate relied upon relation 48awareness imported material real risk contaminatedin relation defendant awareness imported material real risk contaminated prosecutor relied soaf agreed mr miller raised concern defendant rubbish coming property march 2017 see 84 cross examination defendant agreed mr miller expressed concern material zetland site 49 49 prosecutor submitted find defendant believed insofar went deny aspect conversation mr miller described soaf agreed fact mr brown prm communicated defendant concern relation fill material june 2017 see 99 oral evidence defendant give plausible explanation matter raised mr brown 50the defendant gave evidence see asbestos looking fragment property 51 reject evidence inconsistent admission soaf well 28 september 2017 email sent mr mr levy following prosecutor intervention property 7 september 2017 see 117 defendant attempt explain statement email blind freddy could seen fragment entirely implausible statement would included defendant email 28 september 2017 unless observed material suspected asbestos fragment material brought property march 2017 52no lawful authority fill material brought propertythe prosecutor submitted defendant plea guilty 143 1 charge reflected acceptance lawful authority import fill brought property charge period development consent poeo act prosecutor submitted nothing defendant evidence controverted prosecutor contention volume fill delivered property far excess subject waste classification certificate sent defendant see 76 81 oral evidence defendant estimated capacity truck dog trailer approximately 30 tonne said knew material imported property waste classification report cross examination shown 1 waste classification certificate dated 23 february 2023 relation material imported first zetland period see 79 2 waste classification certificate dated 26 may 2023 relation material imported second zetland period see 80 testify obtained waste classification certificate addition identified prosecutor relation fill imported property asked whether checked fill delivered zetland site property covered waste classification certificate defendant replied assumed assumed based everything provided find plausible basis upon defendant could made assumption given volume material imported far exceeded volume referenced waste classification certificate provided prosecutor submitted find cogent evidence recklessness whether fill imported property appropriately verified conclusion defendant state mindhaving regard exemption request letter together evidence given defendant relation experience earthwork knowledge procedure place importation fill material find offence 142a 1 poeo act defendant pleaded guilty committed recklessly reference principle relation reckless state mind set 152 154 157 159 relation offence 143 1 find evidence go objective seriousness offence need specific deterrence harm caused environment commission offence 241 1 poeo actthe phrase h arm environment defined poeo act include direct indirect alteration environment effect degrading environment without limiting generality includes act omission result pollution environment protection authority v waste recycling processing corporation 53 preston cj said 145 147 145 harmfulness need considered term actual harm potential risk harm also taken account axer pty ltd v environmental protection authority 1993 113 lgera 357at 366 andbentley v bgp property pty ltd 2006 nswlec 34 2006 145 lgera 234 6 february 2006 175 harm limited measurable harm actual harm human health also include broader notion quality life 146 harm include harm environment ecology harm animal plant adversely affect animal plant also affect biota ecological relationship animal plant bentley v bgp property pty ltdat 174 147 harm direct indirect individual cumulative activity contribute incrementally gradual deterioration environment even cause discernible direct harm human interest also treated seriously innewcastle city council v pace farm egg product 54 lloyd j said meaning harm likely caused environment 44 44 considering harm likely caused environment noted word likely context held mean real remote chance possibility regardless whether le fifty per cent chance mathews v goulburn wool processor nswsc smart j 6 november 1986 unreported prosecutor submitted importation waste material including asbestos waste property caused actual environmental harm identified marten report follows 1 fill uncompacted capable storing rainfall groundwater caused ongoing significant leachate production containing lead copper zinc hydrocarbon form benzo pyrene tph pah 2 leachate degraded quality surface water groundwater system addition surface soil 3 leachate led increased heavy metal content plant contact leachate degradation ecological system contacting leachate dr marten opined harm leachate manifest ongoing increasing rate significant leachate production leachate released environment untreated uncontrolled manner degrade quality surface groundwater system modify terrestrial ecosystem function composition pollute surface soil downslope fill dr marten said harm trivial persist environment period month year recovery natural condition achieved term likely potential environmental harm dr marten predicted pollutant plume could extend groundwater downslope property rate around 20 50 metre per year estimated leachate would affect downstream water quality soil quality terrestrial ecosystem function distance several hundred metre dr marten also expressed view potential harm arise contaminant leachate salt nutrient including ammonia nitrate phosphorus assessed current fill stockpile testing regime dr marten opined presence asbestos within waste stockpile present ongoing material risk human exposure asbestos contaminated material considered potential harm trivial potential effect human health serious long lasting remediation option plan prepared arcadia investment benviron group march 2018 see 123 referred kind remediation approach required order ameliorate environmental effect contaminated fill landowner arcadia investment since required carry work clean notice see 118 prosecutor relied evidence neighbour impact filling activity quality life 1 mr stephen webb neighbour residing 26 geelans road referred impact home water supply volume dust generated stockpile material property concern hold contaminated asbestos said besides constant sound machinery truck rock hammer like significant dust issue westerly blew view arcadia premise unobstructed therefore wind blew direction dust directly high pile material coupled machinery activity blew large volume dust straight across home dust would settle roof catchment one underground water tank 100 000 litre also subsequently significant mud collection sump tank causing problem water supply home concerned asbestos contaminated dust might got water supply consumed wife grandchild 2 m shanna staple neighbour 14 geelans road referred debris left geelans road truck property interference horse riding along street said movement truck started restricting horse riding along street manner driving becoming reckless time often debris road including rock brick usually found curve road near house also noticed truck often labouring left property exiting street 3 mr geoffrey burge neighbour 24 geelans road immediately adjacent property referred concern concerning machinery vibration property said sometime around september 2016 noticed truck transporting material premise 22 geelans road arcadia september 2016 contacted mr levy relation concern vibration result heavy machinery movement rock breaking concerned vibration heavy machinery would damage water tank prosecutor submitted environmental damage occasioned consequence defendant offence 142a 1 143 1 poeo act substantial 55 prosecutor following matter particular relevance impact occasioned commission two offence 1 nature waste including visual observation result sample indicate fill contained following contaminant analysis sample showing high level number contaminant including lead zinc benzo pyrene b analysis sample indicating presence asbestos bonded friable number form chrysolite amosite asbestos c material observed include number contaminant tile metal brick concrete etc 2 amount fill transported property 1 399 truck dog trailer capacity approximately 30 tonne amount waste pollutant stockpile based volumetric survey estimated approximately 11 360m3 20 000 tonne 3 geographical positioning waste sensitive environmental area located near vegetation steep terrain property partially zoned environment management zone 4 actual harm environment explained dr marten also potential harm arises dr marten opinion likely arise number year duration harm factor elevates seriousness 5 term harm human health potential harm arising presence asbestos potential insignificant given property rural residential area fill ever disturbed risk asbestos may released cause harm human health 6 also amenity impact neighbour result offence find prosecutor established beyond reasonable doubt environmental damage occasioned consequence defendant offence 142a 1 143 1 poeo act substantial defendant reason committing offence question financial gainin relation defendant reason committing offence question financial gain prosecutor referred following matter 1 ejoi paid approximately 178 000 amount paid acn fill supplier 2 ozzy earthmovers paid approximately 218 000 work undertaken property charge period included substantial part directing delivery receipt imported material stockpiling spreading site submitted prosecutor find beyond reasonable doubt rational inference drawn defendant principal reason committing offence s 142a 143 1 poeo act undertaking thorough enquiry order ensure imported fill material compliant waste regulatory scheme poeo act poeo waste regulation financial gain 56 submitted prosecutor find whether defendant motivation financial gain directed towards benefitting personally entity associated material 57 practical measure avoid harm environment defendant control cause harm environment 241 1 b poeo actthe prosecutor submitted practical measure defendant could taken prevent control mitigate harm environment 1 ensure load accepted property validated either venm subject resource recovery exemption qualified environmental consultant 2 waste classification certificate provided validating fill material source site either vemn enm recovered aggregate within resource recovery exemption order ensure material received property unless appearance volume matched material referred waste classification certificate b verify system place ensure material transported confined material subject waste classification certificate issued 3 refuse accept delivery zetland site concern raised mr miller march 2017 fill site prm june 2017 although defendant exemption request letter epa 23 march 2017 contemplated material identified unsuitable returned source site delivery ceasing upon visual assessment raising concern evidence nature communication source site recording refund like material fact returned source site property prosecutor submitted system may included environmental consultant inspect source material prior approval material transport source site limiting batch material assessed 1000m3 measure contemplated defendant exemption request letter 23 march 2017 implemented evidence either mr miller defendant conducted comparison material received site waste classification certificate purportedly relating material evidence verifiable chain custody system place ensure material transported property confined relevantly validated source site find defendant could taken practical measure identified prosecutor prevent control mitigate harm environment foreseeability harm caused likely caused environment 241 1 c poeo acti find plainly foreseeable depositing approximately 1 399 truck load surveyed comprise approximately 11 360 m3 fill excavated urban demolition site property unlicensed use waste facility within rural area surrounded native vegetation potential cause environmental harm see pain j inenvironment protection authority v laison 58 sheahan j inenvironment protection authority v foxman or 2 foxman 2 59 likewise find beyond reasonable doubt defendant foresight harm could caused deposit uncontrolled fill reflected exemption request letter 23 march 2017 defendant outlined proposal imported fill tested contaminant visually assessed certificate provided fill returned source site issue arose visual assessment control cause giving rise offence 241 1 poeo actthe prosecutor submitted find established beyond reasonable doubt defendant primary control transport waste property made arrangement fill supplier procure fill material directed schedule movement truck driver ground prosecutor also submitted find term construction deed assigning responsibility ozzy earthmovers see 57 given weight albeit determinative weight considering matter within defendant control whether committing offence person complying order employer supervising employee 241 1 e poeo acti consider factor 241 1 e poeo act relevant sentencing defendant defendant occupier property responsible making decision relation sourcing fill issuing instruction relation transportation property person complying order employee supervising employee presence asbestos environment 241 1 f poeo actinenvironment protection authority v mouawad 2 environment protection authority v aussie earthmovers pty ltd 3 mouawad 2 60 andenvironment protection authority v sam abbas also known osama abbas abbas 61 pain j held extent 241 1 f poeo act may construed requiring greater weight given presence asbestos environment aggravating factor required prior insertion poeo act 20 december 2019 applied retrospectively offence occurred prior date honour held however presence asbestos waste relevant consideration environmental harm 241 1 prosecutor agree honour construction 241 1 f reason submitted inabbas reflected honour judgment 75 however purpose proceeding prosecutor press presence asbestos environment considered 241 1 f noting event presence asbestos waste relevant consideration environmental harm 241 1 proceeded accordingly conclusion relation objective seriousnessin relation objective seriousness concluded offence involves offending conduct medium high range seriousness regard following factor 1 effect undermining regulatory scheme created poeo act 2 amount fill material transported property 1 399 truck dog trailer volume waste stockpile estimated volumetric survey approximately 11 360m3 20 000 tonne see 60 125 3 nature conduct involved transport deposit waste property period approximately 7 month 4 nature waste including component classification smit report asbestos waste see 127 5 defendant control commission offence significant planning organisation went offence particular registration arcadia landfill asic business name acn negotiating fee fill supplier coordinating fill delivery truck movement 6 degree foreseeability harm caused local environment 7 defendant awareness specific control measure put place validate fill received property measure put place 8 offence committed financial gain motivation offending financial gain bearing upon moral true culpability offender 62 prosecutor submitted 142a 1 143 1 offence medium high range objective seriousness comparing present matter toenvironment protection authority v afram afram 98 101 pain j honour said 63 98 considering harm likely harm caused land pollution offence defendant submitted offence one medium seriousness basis high seriousness case would require expert evidence established mere potential non trivial harm human health mere unquantified presence harmful material low seriousness offence might involve pollution give rise potential loss property damage risk human health medium seriousness offence might involve risk human health safety imminent one resulted immediate need remediation land evidence proceeding financial consequence landowner flowing 142a 1 offence additional conduct 99 found land pollution offence caused actual environmental harm degradation land water air deposition asbestos waste large quantity kulnurra site resulting land pollution offence objectively serious given potential significant harm human health safe level exposure asbestos special waste asbestos waste seen surface land mean high potential human exposure additional harmful waste containing lead hydrocarbon deposited potential significant harm human health environment identified dr dodd report anthropogenic waste potential cause physical harm 100 evidence financial consequence landowner kulnura site dealing asbestos waste deposited land option dealing asbestos waste include capping site disposal site consider high cost disposing asbestos waste licenced facility notorious recent example cost considered seen inenvironment protection authority v grafil pty ltd environment protection authority v mackenzie 4 2021 nswlec 123at 144 judgment address different circumstance scale cost capping asbestos waste potential cost disposal site approved facility likely significant landowner kulnurra site defendant action potentially exposed landowner financially onerous clean cost 101 land pollution offence middle high range objective seriousness andfoxman 2 82 sheahan j emphasis original 82 concluded combined objective seriousness offence term harm occasioned environment regulatory system ismoderate high 241 1 especially direct result placement also physical act transportation regard matter set relation objective seriousness offence find 142a 143 offence medium high range objective seriousness subjective circumstance offenderprior criminality character s 21a 2 21a 3 e 21a 3 f csp actpursuant 21a 2 csp act defendant record previous conviction aggravating factor determining appropriate sentence offence prosecutor tendered copy defendant criminal history includes conviction relation previous offence poeo act prosecutor also provided court copy decision pepper j inmouawad v hill shire council honour 21 dismissed defendant appeal conviction sentence prosecutor submitted totality defendant criminal history taken account matter denies efendant ability rely assertion good character prosecutor also submitted defendant criminal history reflects importance deterrence proceeding given prior conviction similar offence otherwise related waste disposal prior conviction defendant follows 1 9 march 2011 defendant director frontier civil engineering pty ltd convicted local court offence unlawfully transporting waste contrary 143 1 poeo act fined 15 000 ordered pay prosecutor cost 2 19 december 2018 following plea guilty defendant convicted local court principal offence dishonestly obtaining financial advantage deception contrary 192e 1 b thecrimes act 1900 nsw sentenced term imprisonment 18 month non parole period 12 month appeal district court sentence reduced intensive correction order 15 month defendant ordered perform 280 hour community service work pay compensation peter brien construction sum 225 056 3 26 february 2021 defendant convicted following plea guilty two offence knowingly supplying false misleading information waste contrary 144aa 2 poeo act 64 court made intensive correction order pursuant 7 1 csp act directing sentence served way intensive correction community ordered 250 hour community service work 65 find defendant previous criminal offending characterised 1 carrying demolition excavation waste transportation activity course employment 2 transport disposal asbestos waste defendant criminal history aggravating matter denying defendant ability rely assertion good character offence committed without regard public safety 21a 2 csp actthe prosecutor submitted offence committed without regard public safety aggravating factor taken account determining appropriate sentence offence pursuant 21a 2 csp act whilst accepting step taken obtain waste classification certificate imported fill find defendant notice real prospect asbestos containing material continuing imported rural residential neighbourhood take step cease halting delivery least zetland site prosecutor submitted take account foreseeable offence would likely cause environmental harm take care avoid double counting likely harm environment includes public safety 66 accept submission taken care avoid double counting offence committed financial gain 21a 2 csp actthe prosecutor submitted court find offence committed financial gain considered submission 193 194 found beyond reasonable doubt offence part planned organised criminal activity 21a 2 n csp actthe prosecutor submitted s 142a 143 1 offence involving transportation deposit period approximately 7 month 1 399 load waste material property see 60 site licensed poeo act waste disposal storage operated arcadia landfill business name part planned criminal activity 67 67 find beyond reasonable doubt significant level organisation planning preparation offence defendant established registration business name arcadia landfill 28 march 2017 defendant exchange mr mr levy source site charge period example see 65 67 around procuring fill organising payment fill find offence committed charge period even one person defendant involved sufficient repetition system lead conclusion organised within meaning 21a 2 n 68remorse shown offender 21a 3 csp actthe defendant showed expression remorse offending within meaning 21a 3 csp act gave evidence accepted responsibility action 21a 3 1 acknowledged injury loss damage caused action made reparation injury loss damage 21a 3 2 cannot accept anything evidence submission advanced defendant expression remorse criminality effect oral evidence others responsible validating fill imported property 69 statement exhibit e accept acceptable contaminate land commit offence cast general term statement amount expression contrition effect act environment community defendant repeated attempt exhibit e attribute responsibility filling activity person inconsistent acceptance responsibility action plea guilty s 21a 3 k 22 csp actin determining penalty offence committed defendant take account defendant pleaded guilty 21a 3 k 22 1 defendant pleaded guilty 22 1 b circumstance indicated intention plead guilty 22 1 c may impose lesser penalty account plea would otherwise imposed 22 however lesser penalty imposed due guilty plea must unreasonably disproportionate nature circumstance offence 22a 1 utilitarian value plea criminal justice system generally assessed range 10 25 per cent discount sentence primary consideration determining range particular case fall timing plea discount top range would expected restricted plea entered earliest possible opportunity discount towards bottom range appropriate late plea entered date fixed trial case discount appropriate 70 proceeding commenced 28 august 2018 listed first mention 5 october 2018 adjourned least eight occasion course 2018 2020 including enable defendant obtain legal representation date sentencing hearing defendant represented three different firm unrepresented lengthy procedural history matter recorded affidavit ryan verzosa affirmed 4 april 2023 part outlined inenvironment protection authority v mouawad also known boulos isaac 2 71 prosecutor submitted court take following circumstance account considering plea discount 1 defendant pleaded guilty offence 23 november 2018 2 defendant resisted making key concession factual matter amended 247k notice served legal representative 21 december 2020 3 defendant applied adjournment trial set hearing 25 october 19 november 2021 4 defendant resisted notice motion filed prosecutor 29 april 2022 rely certain additional evidence application granted moore j september 2022 5 defendant notice motion filed wife agent 3 april 2023 sought trial date set 26 april 2023 25 may 2023 vacated fitness ground 6 defendant pleaded guilty two offence charged 26 april 2023 first day four week trial listed hearing september 2022 point time proceeding foot four half year significant time expended preparation court book hearing significant monetary environmental expense incurred printing document lengthy written submission prepared served prosecutor prosecutor prepared hearing find guilty plea entered 26 april 2023 first day four week trial listed hearing september 2022 commence 26 april 2023 avoided need four week trial plea limited utilitarian value consider relevant court decision inmouawad 2 mr mouawad entered guilty plea almost eight month proceeding commenced sought leave reverse plea period nine month thereby requiring preparation evidence written submission full day hearing pain j found 48 mr mouawad plea minimal utilitarian value regard circumstance identified prosecutor set 227 apply discount 10 percent plea guilty entered defendant first day hearing relation sentence offence assistance authority s 21a 3 23 csp actthere evidence submission defendant provided assistance prosecutor investigation likely reoffend 21a 3 g csp acthaving regard defendant previous criminal offending see 212 including conviction offence dishonesty evidence given sentencing hearing found credible find defendant displayed continuing attitude disobedience law propensity reoffend indicates severe penalty imposed 72the defendant antecedent criminal history relevant whether instant offence uncharacteristic aberration whether defendant manifested commission instant offence continuing attitude disobedience law case retribution deterrence protection society indicate severe penalty warranted 73 principle sentencing consideredproportionalityneither prosecutor defendant made submission relation proportionality nonetheless regard principle proportionality determining appropriate penalty two offence fundamental principle sentencing sentence exceed proportionate gravity offence regard objective circumstance considered principle arriving sentence imposed two offence 74 general specific deterrence 3a b csp actthe penalty imposed serve function general specific deterrence section 3a b csp act identifies purpose sentencing b prevent crime deterring offender person committing similar offence prosecutor submitted consistent 3a b csp act sentence imposed court defendant offence must serve general deterrent relation environmental offence general deterrence primacy 75 person deterred committing environmental offence nominal fine 76 pain j said inenvironment protection authority v smart skip pty ltd 77 35 relation offence 144 poeo act g iven importance enforcing regulatory regime management waste operating waste facility profit general deterrence important consideration nominal fine sufficient inbcc v hanna preston cj said 152 relation need general deterrence sentence court need magnitude change economic calculus person determining whether comply contravene environmental law cheaper offend prevent commission offence environmental crime remain profitable financial cost offender outweighs likely gain offending amount fine need make worthwhile incur cost complying law undertaking necessary precaution amount fine must substantial enough appear mere licence fee illegal activity inenvironment protection authority v robinson lloyd j observed penalty breach must sufficient compel attention environmental issue ensure defendant others encouraged comply law environment exposed risk harm 78 accept prosecutor submission sentence imposed reflect strong need general deterrence specific deterrence inrobinson 79 lloyd j said 31 pecific deterrence aim deter offender repeating environmental offence committed recorded fitness judgment duggan j 20 defendant continues work heavy machine operator prosecutor submitted evidence reveals find beyond reasonable doubt defendant presently involved excavation piling fill dynamic dwelling earthworx shareholder company mobile number given contact point company instagram page important role specific deterrence fixing appropriate penalty two offence particularly light defendant previous offending conviction previous offence 143 poeo act see 212 1 even handedness consistency sentencingacknowledging care must taken comparing case may many divergent fact circumstance 80 prosecutor prepared schedule comparable case relation asbestos offence s 142a 143 poeo act assist court achieving consistency sentencing 81 prosecutor said presentation sentencing information intended suggest appropriate range discernible case rather show done le comparable case 82 considered case find following relevance 1 inbcc v hanna defendant pleaded guilty two charge 142a two charge 143 poeo act transporting depositing approximately 90 tonne waste containing asbestos two site preston cj found defendant committed offence deliberately save incurring expense paying tipping fee 83 honour determined offence medium objective seriousness 84 defendant fined 88 000 two offence 142a 137 000 two offence 143 calculated applying totality principle discount 25 percent early guilty plea 2 inabbas defendant pleaded guilty one charge s 142a 143 144 poeo act transporting approximately 21 990 tonne waste containing asbestos general rubbish pain j accepted defendant reason committing offence found defendant careless paying greater attention content volume fill delivered offence committed recklessly negligently 85 honour considered offence low mid range medium range objective seriousness 86 defendant fined 10 000 offence 142a 60 000 offence 143 30 000 offence 144 calculated applying totality principle 15 percent discount early guilty plea 3 inafram defendant pleaded guilty one charge 142a three charge 144aa poeo act relation pollution site 4 050 tonne waste relation offence 142a pain j found defendant complete control activity resulted offence offence avoidable defendant obtained substantial financial benefit result offence offence part planned criminal activity 87 honour considered offence 142a middle high range objective seriousness 88 defendant fined 127 500 offence 142a calculated applying 25 percent discount early guilty plea 4 inenvironment protection authority v hanna 89 defendant pleaded guilty four charge 143 poeo act transporting 4 truck load asbestos waste estimated weigh 6 7 tonne 4 site craig j found offence premeditated intentionally done knowledge illegality 90 honour regarded offence closer medium rather low objective gravity 91 defendant fined 32 000 first charge 16 000 second charge 32 000 third charge 24 000 fourth charge calculated applying totality principle 15 per cent discount defendant guilty plea 5 inmouawad v hill shire council defendant defendant present case wife found guilty offence 143 poeo act transporting 5 7 truck load waste containing soil clay rock construction demolition rubble including brick plastic concrete glass asbestos pepper j found harm occasioned environment commission offence lower end scale majority material deposited enm 92 honour also found evidence suggest either defendant aware material clean topsoil would taken honour considered offence low objective seriousness 93 defendant fined 15 000 wife fined 9 000 6 infoxman 2 three defendant two company individual defendant mr foxman found guilty two offence 143 one offence 144 poeo act transporting approximately 15 900 tonne construction demolition waste containing asbestos sheahan j considered combined objective seriousness offence term harm occasioned environment regulatory system moderate high 94 honour considered major burden sentence fall mr foxman author chief manager scheme 95 mr foxman fined 75 000 offence 143 100 000 offence 144 calculated applying totality principle totalityin accordance totality principle court sentence defendant one offence aggregate overall sentence must appropriate reflect total criminality court 96 case sentence fine court considers totality principle requires adjustment individual fine would otherwise appropriate amount fine altered 97 prosecutor accepted totality principle application respect offence contravention s 142a 1 143 1 poeo act common underlying factual substratum however prosecutor submitted criminality involved two offence conterminous rather offence 143 1 conduct offence offence 142a result offence involving additional element land degradation placed pollutant prescribed nature accordingly prosecutor submitted totality principle ought applied basis extensive degree overlap 98 accept submission regard circumstance 143 1 offence charged concerning transportation waste accordance totality principle considered appropriate sentence offence reviewed aggregate ensure reflects total criminality defendant 99 mean defendant 6 fine act 1996 nsw pursuant 6 thefines act 1996 nsw fine act exercise court discretion fix amount fine court required consider information regarding mean accused reasonably practicably available court consideration b matter opinion court relevant fixing amount defendant submitted lack fund contributed decision accept plea deal accordingly fixing amount fine offence little basis upon consider mean defendant appropriate penalty imposedsynthesising relevant objective subjective circumstance offence offender relevant purpose sentencing need general specific deterrence timing plea absence evidence assistance provided prosecutor investigation finding relation credit contrition maximum penalty set parliament case individual 250 000 offence check yardstick provided case court referred 243 finding recklessness relation 142a offence finding 143 1 offence charged conduct offence opposed 142a 1 charged result offence consider appropriate monetary penalty 1 offence 142a 1 poeo act 150 000 2 offence 143 1 poeo act 150 000 amount discounted utilitarian value plea guilty 10 percent result monetary penalty 1 offence 142a 1 amount 135 000 2 offence 143 1 amount 135 000 regard totality principle common underlying factual substratum two offence accepting prosecutor submission criminality involved offence conterminous apply discount 30 percent result penalty two offence amount 94 500 offence 142a 1 amount 94 500 offence 143 1 make order 50 percent amount paid environmental trust established theenvironmental trust act 1998 nsw pursuant 250 1 e poeo act general environment purpose remaining 50 percent paid prosecutor pursuant 122 2 thefines act 1996 nsw payment share fine prosecutor 122 fine act prosecutor sought order 122 fine act half fine ordered defendant paid prosecutor pursuant 122 1 fine act 122 applies act authorises imposition penalty make provision application recovered penalty offence s 142a 1 143 1 poeo act make provision application fine recovered court condition 122 1 b fine act also satisfied prosecutor epa police officer award moiety prosecutor discretionary 100 one circumstance justifying making order moiety prosecutor independent right recovery investigation cost insecretary department planning environment v agl energy limited agl energy 101 moore j made order 122 fine act class 5 sentence proceeding offence theenvironmental planning assessment act 1979 nsw honour held 150 moiety could validly ordered full suite additional therapeutic punitive power contained pt 8 3 poeo act available including power order cost expense investigation honour held 155 court might decline exercise discretion award moiety circumstance statutorily based order pay cost would achieved outcome honour went say 158 158 specifically seems may basis prosecutor seek reimbursement investigation expense moiety fine circumstance prosecutor could demonstrate additional payment might support sustaining general basis environmental law enforcement activity prosecuting authority prosecutor seek order 248 poeo act reimbursement specific investigation expense expense submitted include significant time spent prosecutor officer investigating two offence accordingly fully compensate prosecutor expense similar submission recorded moore j inagl energyat 143 102 circumstance consider order 122 fine act half fine ordered defendant paid prosecutor would represent unjustified windfall prosecutor make order accordingly coststhe prosecutor also seek order defendant pay prosecutor investigation cost expense pursuant 248 poeo act amount 33 647 cost expense relate following make order accordingly prosecutor also seek order professional cost agreed assessed 257b cpa considering appropriate penalty legitimate take account associated cost order 103 accept prosecutor submission order cost reason reducing penalty amount lower suggested general pattern sentencing relevant offence 104 make order prosecutor professional cost agreed assessed 257b cpa act ordersi make following order 1 proceeding 2018 260536 defendant convicted offence 143 1 theprotection environment operation act 1997 nsw poeo act charged 2 proceeding 2018 260542 defendant convicted offence 142a 1 poeo act charged 3 proceeding 2018 260536 defendant pay monetary penalty sum 94 500 4 proceeding 2018 260542 defendant pay monetary penalty sum 94 500 5 pursuant 250 1 e poeo act 50 percent monetary penalty imposed defendant order 3 4 paid environmental trust established theenvironmental trust act 1998 nsw 6 pursuant 122 2 thefines act 1996 nsw remaining 50 percent monetary penalty imposed defendant order 3 4 paid prosecutor 7 pursuant 248 poeo act defendant pay prosecutor investigation cost proceeding amount 33 647 8 pursuant 257b thecriminal procedure act 1986 nsw cpa defendant pay prosecutor professional cost proceeding amount agreed assessed 257g cpa amendments21 july 2023 table 260 missing upload reinserted 1 environment protection authority v mouawad 3 2023 nswlec 44 mouawadno 3 42 2 mouawad 3 36 37 3 maxwell v queen 1996 184 clr 501 1996 hca 46at 508 510 dawson mchugh jj strbak v queen 2020 267 clr 494 2020 hca 10at 32 33 kiefel cj bell keane nettle edelman jj strbak 4 r v neill 1979 2 nswlr 582at 588 moffitt acj neill duffy v r 2009 nswcca 304at 21 fullerton j duffy 5 2004 217 clr 198 2004 hca 22at 30 gleeson cj gummow j kirby j hayne j heydon jj environment protection authority v laison 2015 nswlec 89at 33 pain j laison 6 queen v olbrich 1999 199 clr 270 1999 hca 54at 27 28 gleeson cj gaudron hayne callinan jj leach v queen 2007 230 clr 1 2007 hca 3at 41 gleeson cj filippou v queen 2015 256 clr 47 2015 hca 29at 64 66 french cj bell keane nettle jj strbak 27 28 environment protection authority v forestry corporation new south wale 2022 nswlec 70at 45 robson j 7 strbak 32 8 neill 587 duffy 21 9 2012 188 lgera 273 2012 nswlec 45at 171 174 biscoe j 10 evidence acts 4 1 4 2 11 evidence act 191 2 12 see cpa 247a b 13 2009 nswlec 152 biscoej 14 ramsey 1 15 ramsey 11 16 ramsey 12 15 17 ramsey 16 18 ramsey 16 19 ramsey 17 19 20 cl v r 2014 nswcca 196at 43 44 adamson j fullerton j hoeben cj cl agreeing 21 environment protection authority v mouawad land environment court nsw moore j 28 september 2022 unrep tcpt p 2 5 22 muldrock v queen 2011 244 clr 120 2011 hca 39at 27 muldrock french cj gummow hayne heydon crennan kiefel bell jj 23 plath v rawson 2009 170 lgera 253 2009 nswlec 178 plath 48 preston cj fairfield city council v oztech development pty ltd 2021 nswlec 81at 57 robson j 24 r v peel 1971 1 nswlr 247at 262 herron cj manning ja brien j garrett v williams 2006 160 lgera 115 2006 nswlec 785at 89 preston cj 25 bentley v bgp property pty ltd 2006 145 lgera 234 2006 nswlec 34 bentley 168 172 preston cj 26 director general department environment climate change v rae 2009 168 lgera 121 2009 nswlec 137 rae 15 preston cj environment protection authority v university sydney 2022 251 lgera 361 2022 nswlec 41at 29 pain j 27 environment protection authority v hanna 2018 235 lgera 114 2018 nswlec 80 epav hanna 97 preston cj 28 rae 15 preston cj 29 2014 205 lgera 39 2014 nswlec 152 prestoncj 30 muldrock 31 elia v queen 2013 248 clr 48 2013 hca 31at 27 french cj hayne kiefel bell keane jj harrison v perdikaris 2015 nswlec 99at 49 preston cj camilleri stock feed pty ltd v environment protection authority 1993 32 nswlr 683at 697 camilleri stock feed kirby p campbell james jj agreeing 31 markarian v queen 2005 228 clr 357 2005 hca 25 31 gleeson cj gummow hayne callinan jj 32 poeo act 142a 1 b 33 poeo act 143 1 b 34 plath 57 preston cj 35 camilleri stock feed 697 kirby p campbell james jj agreeing 36 bcc v hanna 70 preston cj environment protection authority v sam abbas also known osama abbas 2021 nswlec 57at 46 pain j abbas 37 2020 nswlec 80 pepperj 38 albiston 107 109 39 2022 nswlec 113at 81 82 preston cj 40 2021 nswlec 71at 87 91 pepper j 41 2023 nswlec 13at 82 95 pepper j 42 1981 147 clr 383 1981 hca 31at 389 gibbs cj 43 environment protection authority v hughes 2019 nswlec 108 hughes 83 86 pepper j 44 epa v hanna 119 153 preston cj 45 2019 nswlec 100 pepperj epa v sydney water 2019 46 epa v sydney water 2019 159 citing thuong nguyen v r 2012 nswcca 184at 30 31 davy j allsop p latham j agreeing 47 t54 37 t55 13 48 t56 46 49 t58 44 50 t34 8 t36 6 51 t61 18 t61 20 52 t61 40 t62 26 53 2006 148 lgera 299 2006 nswlec 419 prestoncj 54 2002 nswlec 66 lloydj 55 csp act 21a 2 g environment protection authority v foxman or 2 2016 nswlec 120at 91 92 sheahan j foxman 2 56 csp act 21a 2 57 environment protection authority v minto recycling pty ltd 2019 nswlec 193at 79 12 83 moore j 58 laison 26 59 foxman 2 79 60 2020 nswlec 166at 28 pain j 61 abbas 81 82 pain j 62 tiknius v r 2011 221 crim r 365 2011 nswcca 215at 43 per johnson j tobias aja hall j agreeing 63 2022 252 lgera 153 2022 nswlec 38 64 environment protection authority v mouawad 3 2021 nswlec 16 painj mouawad 3 6 1 2 65 mouawad 3 6 3 6 66 environment protection authority v aargus pty ltd 2013 nswlec 19at 93 craig j 67 csp act 21a 2 n 68 ncr australia pty ltd v credit connection pty ltd 2005 nswsc 1118at 72 76 campbell j 69 example t43 21 t43 29 t44 10 t44 11 t46 11 t46 18 t50 14 t50 19 ts0 21 46 t51 45 t51 50 70 r v thomson houlton 2000 49 nswlr 383 2000 nswcca 309at 419 160 spigelman cj wood cj cl foster aja grove james jj agreeing 71 2023 nswlec 38at 9 34 pritchard j 72 example environment protection authority v sydney water corporation 2021 nswlec 17at 141 robson j citing veen v queen 2 1988 164 clr 465 1988 hca 14 veenno 2 477 mason cj brennan dawson toohey jj 73 veen 2 477 mason cj brennan dawson toohey jj 74 environment protection authority v sydney water corporation 2023 nswlec 68at 157 pritchard j 75 see environment protection authority v p quality small good pty ltd 2017 nswlec 89at 87 robson j citing cameron v eurobodalla shire council 2006 146 lgera 349 2006 nswlec 47at 71 81 preston cj gittany construction pty limited v sutherland shire council 2006 145 lgera 189 2006 nswlec 242at 103 104 preston cj burwood council v erector group pty ltd burwood council v liverpool developing pty ltd 2017 nswlec 20at 67 69 preston cj see also environment protection authority v grafil pty ltd 2002 254 lgera 76 2022 nswcca 268at 104 109 bellew j gleeson ja hamill j agreeing 76 bentley 139 141 150 151 preston cj 77 2009 nswlec 204 painj 78 2004 nswlec 629at 30 lloyd j robinson 79 robinson 31 80 axer pty ltd v epa 1993 113 lgera 357at 365 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mill v queen 1988 hca 70 1988 166 clr 59at 63 1988 hca 70at 8 wilson deane dawson toohey gaudron jj gittany construction pty ltd v sutherland shire council 2006 145 lgera 189 2006 nswlec 242 196 preston cj pearce v queen 1998 194 clr 610 1998 hca 57at 40 mchugh hayne callinan jj water nsw v barlow 2019 244 lgera 1 2019 nswlec 30 barlow 111 preston cj 97 bcc v hanna 163 preston cj citing epa v barnes 2006 nswcca 246at 50 kirby j mason p hoeben jj agreeing 98 example bcc v hanna 168 172 preston cj 99 barlow 111 preston cj 100 chief executive office environment heritage v boyle 2019 nswlec 54at 157 moore j 101 2017 nswlec 2 moorej agl energy 102 agl energy 143 citing secretary department planning environment v boggabri coal 2014 nswlec 154at 62 preston cj 103 harris v harrison 2014 86 nswlr 422 2014 nswcca 84at 100 simpson j hall schmidt jj agreeing 104 liverpool city council v leppington pastoral co pty ltd 2010 nswlec 170at 50 biscoe j

R v HARDS; R v HARDS; R v WILCKENS [2018] SASCFC 132 (13 December 2018).txt

r v hards r v hards r v wilckens 2018 sascfc 132 13 december 2018 last updated 17 december 2018supreme court south australia court criminal appeal disclaimer every effort made comply suppression order statutory provision prohibiting publication may apply judgment onus remains person using material judgment ensure intended use material breach order provision enquiry may directed registry court generated r v hards r v hards r v wilckens 2018 sascfc 132judgment court criminal appeal honourable chief justice kourakis honourable justice stanley honourable justice bampton 13 december 2018criminal law evidence identification evidence mode identification photograph generallycriminal law evidence identification evidence admissibility generallycriminal law appeal new trial verdict unreasonable insupportable regard evidence appeal dismissedcriminal law appeal new trial particular ground appeal misdirection non directionappeals conviction appellant charged aggravated causing harm one appellant charged property damage three appellant father son friend son appellant contended case mistaken identity complainant recognised one appellant seen photo previously facebook instagram party positively identified two appellant photo identification pack independent witness positively identified one appellant photo identification pack varying degree certainty photo identification pack edited include tattoo whether judge erred admitting identification recognition evidence whether judge failed direct jury properly whether verdict unsafe unsatisfactory held per bampton j kourakis cj stanley j agreeing dismissing appeal 1 judge err admitting identification recognition evidence strauss v police r v crawford distinguished 2 judge direction sound 3 open jury convict three appellant per kourakis cj stanley j agreeing 1 evidence identification given appellant cross admissible others relationship r v deering 1986 43 sasr 252 libke v queen 2007 hca 30 2007 230 clr 559 v queen 1994 hca 63 1994 181 clr 487 applied r v crawford 2015 123 sasr 353 strauss v police 2013 sasc 3 2013 115 sasr 90 distinguished alexander v queen 1981 hca 17 1981 145 clr 395 festa v queen 2001 208 clr 593 domican v queen 1992 173 clr 555 r v dickman 2017 261 clr 601 r v kearney 2013 sascfc 148 r v sparrow 2009 104 sasr 320 considered r v hards r v hards r v wilckens 2018 sascfc 132court criminal appeal kourakis cj stanley bampton jjkourakis cj would dismiss appeal agree reason given bampton j gratefully adopt summary evidence honour judgment add following appeal dylan hardsthe step mr oakes identification evidence dylan hards man attacked machete follows man attacked bore tattoo tattoo gun right side face seen man tattoo birthday party attended 21 november 2015 saw man birthday party recognised man shown social medium account called ink dylan hards brother dylan hards blake testified dylan birthday party mr oakes attended cross examination mr oakes dylan hards counsel proceeded tacit acceptance mr oakes evidence social medium account described dylan hards tattoo tattoo gun face plainly enough improbable man appellant tattoo tattoo gun face shown social medium account named ink dylan hards attended party appellant dylan hards several month later took mr oakes machete even improbable would ford territory four wheel drive similar ford territory motor vehicle registered dylan hards name accomplice closely resembled dylan father friend evidence mr oakes recognition dylan plainly admissible issue case differs fundamentally issue instrauss v police 1 instrauss v policethe challenged evidence recognition person previously known witness evidence subsequent identification offender photograph social medium absence control ordinarily put place formal police conducted identification importance putting tribunal fact evidence allowed risk suggestibility prejudgment weighed obvious enough reason exclude evidence case evidence dylan motive presence motor vehicle strikingly similar mr oakes recognition evidence provided sufficient sound basis jury verdict criticism made evidence jury consider evidence leaf room doubt jury assessment testimony witness could resolve pause observe evidence identification given appellant recognition similarity appearance subsequent photo pack identification selection cross admissible others relationship evidence presence supported evidence presence others appeal david hardsthe evidence leading including evidence mr oakes selection photograph david hards evidence appearance similar appearance one offender one many strand circumstantial case mr oakes clear view offender substantial period time risk suggestibility displacement great could minimised direction kind given exercise discretion exclude evidence manifestly unreasonable affected process error strand circumstantial evidence david hards positive identification m howley evidence similarity one offender given mr oakes m baines familial relationship dylan hards strand reinforced combination formed strong body evidence david hards one offender improbable three witness would independently wrongly identify father dylan hards one attacker independent evidence tended show dylan hards attacked mr oakes appeal billy wilckensi nothing add reason given bampton j stanley j would dismiss appeal agree reason bampton j additional reason chief justice bampton j david hards son dylan hards dylan hards friend billy wilckens tried jury district court two count aggravated causing harm intent cause harm stephen oakes david hards charged information damaging motor vehicle property mr oakes convicted charged david hards appeal three conviction permission ground verdict unsafe unsatisfactory ground 1 trial judge erred admitting identification evidence ground 2 dylan hards appeal two conviction permission ground verdict unsafe unsatisfactory ground 1 trial judge erred admitting recognition evidence ground 2 failed direct jury identifying forensic disadvantage faced recognition process ground 3 billy wilckens appeal two conviction permission ground trial judge erred failing exclude identification evidence ground 1 verdict unsafe unsatisfactory ground 3 ground 2 abandoned following reason would dismiss appeal view judge err admitting impugned evidence direction sound open jury evidence convict three appellant principle relevant appealthe admission recognition identification evidencethe trial judge decision allow recognition identification evidence led involves exercise discretion court interfere exercise discretion judge understood law correctly made error fact taken account relevant consideration excluded mind extraneous consideration 2 court identification evidence isprima facieadmissible judge discretion exclude little weight likely gravely prejudicial 3 mchugh j described infesta v queen 4 exercising discretion exclude positive identification evidence judge must take account risk evidence given greater weight deserves operate prejudice accused considering risk judge must determine whether thedomicandirections given likely overcome prejudice might ensue without direction despite direction risk prejudice remains evidence weak proper exercise judicial discretion may require exclusion evidence indomican v queen 5 identification took place nearly nine month offending photograph used procedure altered add fake wig moustache circumstance matter risk displacement effect witness making identification seen accused television fleeting opportunity see accused distance time alleged offending shock time changed description accused wearing wig moustache first statement made police despite issue argued evidence identification inadmissible 6 court applieddomican v queen 7 holding wherever evidence identification represents significant part proof guilt offence judge must warn jury danger convicting evidence reliability disputed 8 infesta v queen 9 high court considered nature warning trial judge required give identification evidence reliability challenged course reason plurality agreed mchugh j said 10 direction concerning weakness individual case need follow particular formula sufficient jury receive direction give sufficient understanding potential weakness particular evidence put opposed weakness generally inherent identification evidence direction must ensure jury understands possible weakness identification evidence need take particular care use citation omitted inr v dickman 11 high court stated even identification evidence may low probative value prejudice occasioned direction jury adequate fact probative value evidence low require exclusion unless value outweighed risk unfair prejudice 12 unsafe unsatisfactory verdictsif evidence recognition identification correctly admitted necessary consider whether totality evidence including recognition identification evidence sufficient sustain jury verdict 13 determining ground appeal question 14 appellate court whether wasopento jury satisfied guilt beyond reasonable doubt say whether jurymust distinct frommight entertained doubt appellant guilt sufficient show material might taken jury sufficient preclude satisfaction guilt requisite standard citation omitted prosecution caseat 4 50 pm 26 february 2016 stephen oakes driven driveway work three men approached car driver seat vehicle mr oakes right forearm struck driver side window machete wielded one men trial prosecution alleged three men david hards dylan hards billy wilckens driven together mr oakes home intending cause harm party joint criminal enterprise prosecution case man armed weapon david hards carried metal pole dylan hards machete billy wilckens baseball bat first count aggravated causing harm intent committed dylan hards presence father billy wilckens struck mr oakes machete struck machete mr oakes got car slipped landed ground set upon men second count aggravated causing harm intent committed three men punched kicked mr oakes ground mr oakes managed stand flee jumping fence running backyard block unit nearby climbing onto roof one unit mr oakes said looked back running saw dylan hards behind machete silver fourwheel drive roof saw older dude larger dude get four wheel drive also prosecution case david hards immediately pursue mr oakes fled lingering momentarily commit property damage offence damaging mr oakes vehicle metal pole joining chase men taunted mr oakes whilst roof unit ground leaving together silver four wheel drive mr oakes suffered laceration arm machete bruising face head body dispute attack mr oakes occurred appellant maintain case mistaken identity assailant mr oakes speculated assaulted payback brief sexual relationship dylan hards girlfriend dylan temporarily separated 2015 prosecution case mr oakes opportunity see dylan hards machete attack opportunity see three appellant took refuge roof unit taunted mr oakes recognised dylan hards recognise david hards billy wilckens selected photo identification pack pursuit mr oakes also witnessed member public two independent witness attack identified david hards one men involved varying degree certainty selecting photograph photo identification pack david hards dylan hards billy wilckens tattoo face time arrest occurred le two week attack various witness assault referred offender tattoo mr oakes particular said man attacked tattoo tattoo gun side face exhibit p34 contains arrest photo three appellant arrest photo dylan hards heavily tattooed tattoo right side face appears depict tattoo gun mr oakes believed may attacked four assailant could sure witness referred three appeal director acknowledged difference description given various witness three men aspect correct submitted three men however generally described term consistent appellant appearance particular witness spoke one appellant older two david hards older dylan hards billy wilckens evidence relied prosecutionthe evidence relied prosecution included evidence motive part dylan hards indirectly father friend support alleged attack retribution mr oakes sexual relationship dylan hards girlfriend word spoken man machete tended identify attacker mr oakes gave evidence man struck machete said want fuck missus immediately striking fact david hards dylan hards father son fact dylan hards billy wilckens friend mr oakes recognition dylan hards person previously seen facebook instagram cousin 21stbirthday party mr oakes selection photo david hards billy wilckens photo identification pack selection witness attack aftermath photo david hards photo identification pack evidence dylan hards vehicle scene evidence billy wilckens dylan hards vehicle evidence baseball bat metal pole located billy wilckens car 9 march 2016 consistent description given witness weapon evidence billy wilckens dylan hards contact phone earlier day attack timeframe offence committed turn consider appealsthe case david hardsmr oakes described man alleged david hards older long mullet long grey goatee tattoo around face arm bit beer gut would taller mr oakes 15 later identified david hards disputed david hards tattoo face shorter mr oakes mr oakes assaulted daylight saw attacker stepped car could observe ground covering face observed chased street roof unit one one half minute mr oakes described one offender caucasian late 30 early 40 175 centimetre tall beard mullet hair colour brown bit grey 8 march 2016 mr oakes participated identification procedure filmed viewed photo identification pack first photo id pack included photograph third position david hards taken 2011 mr oakes viewing photo said senior constable webber conducted procedure none guy procedure video recorder recording mr oakes said thought man photo 3 looked like suspect except wrong hair colour tattoo facial stubble suspect face tattoo grey hair stubble 6 42 pm 8 march 2016 video recorder reactivated purpose recording mr oakes said third photo first photo id pack mr oakes stated camera mr oakes um think picture number three guy nearly looked alike grey scruffy face like stubble tattoo face sc webber tell tattoo face mr oakes oh know design tattoo know tattoo see pick straight away photo taken david hards following arrest 16 march 2016 used another identification procedure conducted 19 march 2016 photo third photo second id pack second photo id pack also contained four photograph men first photo id pack two new photograph david hards facial tattoo superimposed men second photo id pack mr oakes selected third photograph sequence photograph david hards witness sara howley connection mr oakes appellant gave evidence saw attacker 15 second le drove past two men running carrying baseball bat saw men get silver four wheel drive possibly ford territory drive away one men quite tall fairly short medium height two men quite old older m howley 21 time attack one full beard hair much hair shorter man neck facial tattoo m howley could describe tattoo believed pretty distinct thought shorter male looked older grey hair 7 april 2016 m howley viewed second photo id pack identified photograph david hards shorter older male described crossexamination defence counsel asked m howley whether could tell tattoo seen david hards superimposed onto photograph men said pointed photograph looked like belong time selection however said looked similar believed face rather tattoo influenced identification conceded mention first police statement shorter man said david hards face tattoo witness ian hurst heard yelling screaming outside house looked window see three men chasing another man one men carrying machete baseball bat last man carrying baseball bat bit older two men grey hair mostly full beard bigger two men basically overweight struggling keep 20march 2016 mr hurst viewed second photo id pack equivocally selected david hards older man described said closest eight cross examination mr hurst agreed man photograph selected possibly person saw witness evelyn baines heard men yelling tyre squealing outside house looked window saw three men running nearby driveway car parked one men returned driveway damaged car using grey metal rod least one metre long walked meticulously around car smashing light window bonnet m baines described man 30 40 5 6 slight build brown hair ruddy complexion goatee thought two men younger police showed m baines second photo id pack select david hards witness amos lamoude described one men darker complexion older heavier two witness jaimee hobbs mr lamoude girlfriend described one men 50 bearded medium build also said carrying rifle shotgun metre length witness suggested men carrying firearm reference exhibit p34 billy wilckens tallest heaviest built men david hards clearly older dylan hards billy wilckens exhibit p35 photo dylan hards billy wilckens car billy wilckens appears taller heavier dylan hards photo david hards submissionsdavid hards unsuccessfully sought avoir dire exclude evidence identification complained appeal risk mr oakes memory viewed first photo id pack first identification procedure would taint second identification procedure selected second photo id pack submitted quality editing photo second photo id pack evident least four photo edited showed obvious discolouration around superimposed tattoo also argued fact mr oakes knew david hards photo second photo id pack contaminated process also submitted mr oakes agreed observation attacker nature momentary glimpse time observed running life submitted purported identification mr oakes prejudicial probative david hards pointed m howley conceded cross examination question whether told police tattoo gave evidence noted man alleged david hards also noted witness ian hurst identification david hards photo id pack basis photo david hards closest fit third man chasing mr oakes david hards contended evidence establish beyond reasonable doubt one attacker risk assessing evidence identification jury mind fatherson relationship dylan hards david hards argued open jury evidence satisfied beyond reasonable doubt guilt verdict unsafe unsatisfactory director submission regarding david hards ground appealthe admission identification evidencethe photograph david hards used first id pack viewed mr oakes taken approximately five year offending difference earlier photo photo taken david hards time arrest 2016 neck facial tattoo grey hair facial hair seen arrest photo significantly describing offender said david hards senior constable webber viewing first id pack mr oakes referred man facial tattoo grey hair stubble face submitted director description accurately described difference david hards appearance earlier photo appearance time arrest director contended whilst second identification procedure involving second photo id pack clearly le weight mr oakes already seen photo david hards without value importantly beyond understanding jury procedure would le weight submitted warning given therefore able deal potential prejudice submitted displacement effect matter jury consideration matter jury would understand direction 16 accepted director would preferable photo david hards position first photo id pack second photo id pack ground real risk could influenced result basis one le issue jury consider submitted alteration photograph order make consistent suspect proper procedure 17 tattoo david hards face neck depicted arrest photograph placed seven photograph second photo id pack order person pack looked similar possible david hards submitted director prevented witness consciously subconsciously selecting photo based solely tattoo resembled one witness saw director also contended otherwise would resulted unfairness david hards approach taken accused could escape use identification procedure simply basis unique appearance 18 unsafe unsatisfactoryas set director submitted open jury find dylan hards guilty participation dylan hards provided father motive one offender either aggrieved fact mr oakes sexual relationship son girlfriend simply assist son ensure son overpowered irrespective identification procedure director argued description given witness one three men noticeably older beard facial tattoo strongly implicated david hards light connection people also resembled description offender particularly son evidence identification david hards excluded mr oakes viewed second photo id pack 11 day viewing first photo id pack agree submission risk mr oakes aware number three image remote risk judge clearly alerted jury problem danger evidence recognition evidence identification directed jury whether mr oakes witness honest witness matter instructed jury honest witness make mistake identification recognition importantly explained selection photo photo id pack evidence recognition identification evidence circumstantial nature made particular point directing jury exercise caution assessing evidence witness made selection photo id pack judge direction conveyed jury danger caution required exercise considering evidence err admitting evidence identification appellant would dismiss ground 2 verdict david hards unsafe unsatisfactory determined evidence identification correctly admitted next issue whether totality evidence including identification evidence sufficient sustain jury verdict 19 reading evidence witness adequate opportunity see david hards offending took place daylight submitted director witness saw david hards distance preclude accuracy dylan hards involvement offending discussed provided david hards motive participate seek retribution behalf son support son significantly evidence proving one attacker dylan hards relevant case david hards prosecution case trial concerned credibility reliability mr oakes proof dylan hards one offender evidence also indicative participation three appellant utility primarily corroborate mr oakes account judge directed jury reliability credibility mr oakes question view cannot said evidence led david hards jury must entertained doubt guilt would dismiss ground 1 case dylan hardsas detailed mid late 2015 mr oakes brief three week sexual relationship dylan hards girlfriend dylan hards break dylan hards girlfriend resumed relationship time offending february 2016 mr oakes gave evidence immediately striking man wielding machete said want fuck missus mr oakes conceded mention police september 2017 shortly trial witness m baines heard yelling outside home gave evidence one man yelled fucked 12 year old girl see looking window time prosecution submitted account corroborated mr oakes evidence word fuck used amos lamoude gave evidence saw man tattoo arm leg use machete attack another man said man second older man got car driven third man tattoo arm mr oakes recognition dylan hardsmr oakes evidence recognised dylan hards man wielding machete described attacker tattoo neck arm face particular attacker tattoo tattoo gun right side face gave evidence seen image person instagram facebook said dylan hards said seen dylan hards tattoo artwork lot great artwork shared social medium explained seen dylan hards leaning tattooing somebody instagram account ink dylan hards described man seen site bit smaller skinny short hair mohawk type thing spiky hair tattoo said one tattoo tattoo gun face said recognised tattoo face attack knew dylan hards seen facebook tattoo seen dylan hards photograph social medium person cousin 21stbirthday party 9 november 2015 mr oakes seen photograph artwork social medium long party mr oakes relationship dylan hards girlfriend ended three four week cousin 21stbirthday party mr oakes said saw social medium image dylan hards artwork long cousin 21stbirthday party could say many image dylan hards seen one two year 21stparty saw mr oakes also said cousin 21stbirthday party someone mentioned dylan say nothin silly mr oakes met dylan hards person evidence resiled earlier statement police dylan hards pointed party dylan hards brother blake hards confirmed dylan hards 21stbirthday party identification dylan hards carmr oakes gave evidence saw attacker silver four wheel drive agreed fact dylan hards registered owner silver ford territory registration s894akc phone call 000 mr lamoude described silver four wheel drive porsche cayenne registration s814akc evidence mr lamoude said remembered car either white black though could tinted glass confusing cross examination clarified person identified model car little boy said porsche cayenne m hobbs said car could black white could recall full registration number knew contained number 684 consecutively however police officer gave evidence 000 call made m hobbs gave registration s8948c m hobbs identify dylan hards made incorrect selection photo id pack photo id pack recording m hobbs undertaking identification procedure tendered evidence m howley gave evidence car silver four wheel drive possibly territory also said black front panel photograph car show black panel however wheel black window appeared tinted black area front bonnet witness victoria cooper described car big gold four wheel drive dylan hards submissionsdylan hards complained numerous deficiency prosecution case submitted mr oakes positively identify tattoo right cheek trial argued evidence tattoo time 21stbirthday party photograph mr oakes seen social medium jury investigating officer obtained photograph social medium tendered trial tattoo visible dylan hards brother blake hards also mr oakes cousin 21stbirthday party dylan hards submitted mr oakes could mistaken brother blake hards argued mr oakes assaulted party member comancheros relation alleged drug debt coupled level alcohol argued would affected ability accurately recognise someone dylan hards also complained unable view image image allegedly seen mr oakes said unable crossexamine mr oakes quality extent image image seen submitted denial opportunity test reliability social medium evidence tipped balance favour exercise discretion exclude evidence 20 dylan hards relied comment peek j instrauss v police 21 court trial court appellate court must position view image witness asserts recognised defendant image case identification central issue absence central piece evidence could easily obtained police unacceptable footnote omitted linked complaint suggestion absence attempt police obtain access image image also taken account determining whether evidence excluded dylan hards contended even evidence admissible judge failed direct jury identifying forensic disadvantage respect evidence disadvantage include passage time viewing image image party offending trial andthe inability accurately test reliability image image relied prosecution founding basis mr oakes recognition evidence dylan hards submitted lack safeguard context social medium identification warranted strong warning pitfall evidence dylan hards pointed m hobbs evidence offender alleged six inch rat tail haircut however evidence haircut time offending submitted witness m cooper m howley mr lamoude made positive identification m hobbs positively identified someone witness description car said belong varied dylan hards complained dna evidence linking commission offence dylan hards said suggestion motive proffered prosecution discounted due passage time mr oakes brief sexual relationship girlfriend time offending submitted mr oakes account man struck machete said want fuck missus refuted m baines evidence man yelled fucked 12 year old girl director submissionsthe director submitted matter largely concerned credibility reliability mr oakes court must defer jury advantage seeing mr oakes evidence relation contention lapse four month mr oakes involvement dylan hards girlfriend offending discount jealousy motive director contended time always dissipate jealousy director pointed evidence time dylan hards became aware liaison director submitted whilst m baines evidence statement heard man yell outside window differed mr oakes evidence said corroborative insofar support someone yelled something including word fuck open jury conclude heard m baines evidence mr oakes evidence contrived last minute best position hear said director submitted jury prepared act mr oakes evidence significant evidence dylan hards also two appellant relation dylan hards complaint insufficient evidence led establish indeed tattoo described mr oakes director submitted put mr oakes image posted social medium also put dylan hards tattoo tattoo gun face prior offending director also pointed photograph obtained social medium investigating officer show tattoo show right hand side dylan hards face director submitted nothing inherently implausible mr oakes evidence verdict demonstrate jury satisfied credibility argued open jury treat purported recognition tattoo another aspect evidence inculpating dylan hards also open jury find witness m hobbs m cooper mistaken described car gold black respectively submitted director m hobbs m cooper evidence topic significant singularly combination precluded jury using link dylan hards offending whilst criticism evidence relevant jury consider remained open jury prefer consistent evidence witness topic director submitted absence dna forensic evidence consequence evidence metal object seized unlikely retain glass fragment dna blood located dylan hards sock shoe seized three day offending evidence wearing shoe day offending independent recognition dylan hards director submitted evidence regarding car strongly implicated offending belonging found car seized three day offending strengthened connection use evidence inculpated david hards billy wilckens also supported inference dylan hards involved evidence recognition excluded mr oakes evidence seen image image dylan hards artwork social medium long cousin 21stparty saw dylan hards submitted director cannot assumed image image remained site mr oakes said seen numerous image mr oakes described image recalled wherein saw dylan hards leaning tattooing someone seeing facial tattoo put mr oakes image exist also put dylan hards never facial tattoo tattoo gun recognition mr oakes dylan hards comprises mr oakes recall image seen social medium seeing cousin 21stparty mr oakes said saw dylan hards 21stbirthday party tattoo tattoo gun side face seen social medium put mr oakes dylan hards could seen party fact also put dylan hards tattoo time dylan hards brother confirmed dylan party however said could remember whether ever tattoo take much notice tattoo agree director submission little difference evidence mr oakes saw dylan hards social medium site time ago evidence saw party could suggestion evidence saw dylan hards party excluded contended difference two situation stark logical one excluded mr oakes confirmed cross examination told police first statement 26 february 2017 attacker tattoo tattoo gun face evidence recognition relevant enable jury ass mr oakes evidence recognised dylan hards party submitted director evidence seeing dylan hards party would difficult ass absence evidence seen previously mr oakes said recognised dylan hards distinctive tattoo tattoo gun face fact seen tattoo image person party relevant number occasion previously opportunity see tattoo clear describing absence evidence dylan hards tattoo image never put onto social medium agree unfairness established agree director submission regardingstrauss v police 22 andr v crawford 23 matter involved purported identification photo social medium site offending appeal concern recognition viewing image mr oakes offending whilst would assistance prosecution tender photograph facebook instagram recognition made 24 matter concern facebook identification characterised director matter involved recognition dylan hards photograph mr oakes viewed offending mr oakes search photo attacker case instrauss v police 25 provided name asserted others offender circumstance image viewed well offending existence social medium account ink dylan hards disputed existence photo image dylan hards said social medium account disputed andit put mr oakes image dylan hards tattoo gun face existed failure exclude evidence resulted miscarriage justice judge err admitting evidence would dismiss ground 2 judge fail give warning forensic disadvantage danger facebook identification recognition reliability recognition counsel dylan hards ask forensic disadvantage direction assessment issue trial forensic disadvantage arose specific direction required matter akin circumstance instrauss v police 26 andr v crawfordrequiring direction regarding danger facebook recognition judge gave extensive direction regarding danger recognition evidence need great caution great care considering evidence honour made specific reference matter affecting recognition evidence mr oakes warned jury need approach evidence great caution judge said may take view claimed evidence recognition reliable case may ask reliable general evidence description man judge highlighted weakness purported recognition dylan hards mr oakes including detailed director written submission initial opportunity ass man alleged dylan hards quick later opportunity chase distance whilst mr oakes intent escape survival image viewed social medium limited number mr oakes evidence changed number image seen mr oakes never met dylan hards mr oakes may seen another person 21stbirthday party discrepancy mr oakes description offender andrepeating submission dylan hards counsel relating lack safeguard normal identification procedure viewing photograph social medium view matter highlighted judge adequately warned jury need care assessing evidence mr oakes recognition dylan hards would dismiss ground 3were verdict dylan hards unsafe unsatisfactory determined evidence recognition correctly admitted next question consider whether totality evidence including recognition evidence sufficient sustain jury verdict 27 case detailed dylan hards strong view cannot said evidence led jury must entertained doubt guilt matter complained dylan hards cumulatively prevent jury satisfied guilt beyond reasonable doubt open jury find dylan hards guilty would dismiss ground 1 case billy wilckensin statement dated 26 february 2016 mr oakes described man alleged billy wilckens 20 chubby olive skin stubble face short hair little rat tail mr oakes added statement dated 27 february 2016 also say face tattoo cannot say exactly say small black colour near eye would say looked similar ace spade shape statement dated 28 february 2016 mr oakes added man possession baseball bat completely silver colour evidence mr oakes agreed also told police man alleged billy wilckens olive skinned blonde brown rat tail 10 15 cm length agreed observation attacker momentary glimpse description billy wilckens best identification procedure 8 march 2016 mr oakes identify billy wilckens photo id pack contained among photograph seven men photograph billy wilckens apparent facial tattoo taken may 2015 mr oakes shown second photo id pack identification procedure 20 march 2016 second photo id pack contained photograph billy wilckens taken 9 march 2016 arrest photograph billy wilckens letter k small heart tattooed right side right eye well cross left left eye tattoo superimposed photograph seven men second photo id pack mr oakes selected billy wilckens appeared fifth photograph one attacker m howley gave evidence saw two men said man alleged billy wilckens older 21 year bald tattoo arm alleged david hards fairly short medium size quite old full beard m hobbs described man saw car olive skinned italian looking baby faced short brown hair beard moustache neck tattoo also said one men rat tail mr lamoude described man car mid 20 early30s chubby clean shaven heavy build tattoo arm neck m cooper gave evidence saw three men first fairly young 20 30 quite tall mousy coloured hair carrying baseball bat second 40 50 tall stocky grey hair third shorter 40 medium build carrying baseball bat agreed saw men three four second prosecution place weight evidence trial mr lamoude m hobbs m howley m cooper shown photo id pack containing photograph billy wilckens taken march 2016 none selected billy wilckens man described weaponson 9 march 2016 11 day attack billy wilckens pulled police breath testing driving mother white holden commodore time commodore police noted wanted questioning relation matter arrested boot commodore police found blue baseball bat car jack component car jack silver metal pole approximately one metre long black rubber handle mr oakes witness gave evidence type colour weapon used attack evidence mr oakes said baseball bat black pole silver black however agreed previously told police pole black m baines described pole grey like metal colour m cooper said saw thin man mid 20 carrying black baseball bat also saw shorter man medium build carrying black baseball bat silver handle m hobbs saw caucasian male holding machete man grey hair medium build holding rifle explained earlier reason none witness mentioned firearm m howley saw two baseball bat one red could recall colour mr hurst said one man carrying baseball bat thought red colour mr lamoude saw man slim build tattoo carrying machete telephone recordsthe friendship billy wilckens dylan hards disputed trial prosecution led evidence telephone communication two men billy wilckens dylan hards contact telephone day morning attack evidence telephone communication 11 34 5 21 pm day attack prosecution submitted supported inference two men together lead attack connection dylan hards cara receipt belonging billy wilckens located centre console dylan hards car seized police three day offending billy wilckens submissionsbilly wilckens contended minimal probative weight evidence identification outweigh risk prejudice occasioned submitted mr oakes failed recognise 10 month old photograph first identification procedure successfully identified arrest photograph subsequent identification procedure contended risk mr oakes memory contaminated first identification procedure billy wilckens argued quality editing poor readily obvious image edited contended men second identification pack matched mr oakes description suspect particular none rat tail hairstyle olive skin submitted created risk mr oakes subconsciously correcting erroneous description process deduction certain image could eliminated person interest billy wilckens contended number deficiency case photo id pack mr oakes identified shown five witness none identified forensic evidence connecting assault evidence involvement blue baseball bat found commodore assault contended evidence involvement metal pole low probative value possible draw conclusion beyond reasonable doubt corroborative evidence exists said commodore baseball bat metal pole discovered 11 day offending belong registered billy wilckens submitted receipt found dylan hards car printed 7 february however discovered 29 february argued evidence origin receipt made way dylan hards car submitted absence evidence receipt merely establishes dylan hards knew submitted said telephone record evidencing communication dylan hards finally billy wilckens father robert wilckens dylan hards brother blake hards gave unchallenged evidence never rat tail haircut described witness mr oakes m hobbs accordingly billy wilckens submitted evidence reasonable jury properly instructed could found beyond reasonable doubt larger man described witness director submissionsthe director submitted risk mr oakes selecting photograph billy wilckens seen photograph first identification procedure slight first photograph billy wilckens used two procedure different bore little resemblance first photograph billy wilckens hair colour different hair shorter face thinner facial hair longer tattoo facing slightly different way second photograph secondly lapse 12 day identification procedure meant unlikely mr oakes recalled photograph used first photo id pack danger displacement relevant consideration nonetheless open jury act upon identification judge highlighted jury issue tattoo superimposed onto men second photo id pack director submitted photo viewed individually screen le opportunity compare darkness superimposed tattoo ultimately submitted factor jury consider director pointed image used procedure front face would impossible person rat tail visible accordingly prejudice arose respect director conceded mr oakes mistaken billy wilckens olive skin argued evidence simply warranted jury consideration exclusion director argued open jury convict billy wilckens upon cumulative effect evidence submitted obvious reason witness may mistaken aspect evidence mr oakes m howley m hobbs mr hurst mr lamoude sufficient opportunity observe offender description man said billy wilckens generally consistent director submitted discrepancy evidence jury must concluded billy wilckens one offender director argued contention highest telephone record merely establish dylan hards billy wilckens knew one another must rejected frequent communication two men lead offending subsequent absence communication offending consistent together time immediately preceding offending although receipt belonging billy wilckens 22 day old found dylan hards car three day offending although witness description colour baseball bat vary submitted obvious mistake could made colour director argued open jury reject blake hards robert wilckens evidence billy wilckens rat tail hairstyle submitted blake hards power observation questionable cross examination could recall dylan hards billy wilckens face tattoo demonstrably incorrect similarly robert wilckens unable describe billy wilckens tattoo one beneath eye recollection detail sparse alternatively open jury determine prosecution witness wrong rat tail hairstyle allow possibility billy wilckens cut rat tail following offending arrest director submitted aspect evidence undermine inference could drawn billy wilckens evidence identification billy wilckens excluded nothing evidence identification billy wilckens meant lacking weight probative value outweighed prejudicial effect billy wilckens point deficiency direction note judge alerted jury problem danger evidence recognition evidence identification directed jury whether mr oakes witness honest witness matter instructed jury honest witness make mistake identification recognition importantly explained selection photo id photo pack evidence recognition identification evidence circumstantial nature made particular point directing jury exercise caution assessing evidence witness made selection id photo pack judge direction conveyed jury danger caution required exercise considering evidence err admitting evidence identification billy wilckens would dismiss ground 1 verdict billy wilckens unsafe unsatisfactory determined evidence identification correctly admitted consider totality evidence including identification evidence sufficient sustain jury verdict 28 matter identified deficiency prosecution case billy wilckens relevant consideration jury cumulative effect evidence billy wilckens connection dylan hards evidence consistent dylan hards car possession weapon might used offending mr oakes identification close resemblance tattoo near eye tattoo mr oakes described near offender eye description given independent witness sufficient enable jury convict view cannot said evidence led billy wilckens jury must entertained doubt guilt would dismiss ground 3 conclusioni would dismiss ground appeal 1 2013 sasc 3 2013 115 sasr 90 2 r v deering 1986 43 sasr 252at 255 king cj 3 alexander v queen 1981 hca 17 1981 145 clr 395at 402 gibbs cj 4 festa v queen 2001 208 clr 593at 614 65 5 1992 173 clr 555 6 domican v queen 1992 173 clr 555 7 1991 173 clr 555 8 r v coghlan 2010 sasc 131 kellyj vanstone david jj agreeing 9 2001 208 clr 593 10 2001 208 clr 593at 80 11 2017 261 clr 601 12 2017 261 clr 601at 615 616 13 r v crawford 2015 123 sasr 353at 31 gray j 14 libke v queen 2007 hca 30 2007 230 clr 559at 113 hayne j gleeson cj heydon j agreed v queen 1994 hca 63 1994 181 clr 487 15 mr oakes 173 cm tall 16 r v kearney 2013 sascfc 148at 27 17 r v sparrow 2009 104 sasr 320at 325 18 r v sparrow 2009 104 sasr 320at 19 19 r v crawford 2015 123 sasr 353at 31 gray j 20 strauss v police 2013 sasc 3 2013 115 sasr 90 21 2013 sasc 3 2013 115 sasr 90at 118 22 2013 sasc 3 2013 115 sasr 90 23 2015 123 sasr 353 24 2013 sasc 3 2013 115 sasr 90at 116 119 25 2013 sasc 3 2013 115 sasr 90at 37 26 strauss v police 2013 sasc 3 2013 115 sasr 90 139 143 177 178 189 27 r v crawford 2015 123 sasr 353at 31 gray j 28 r v crawford 2015 123 sasr 353at 31 gray j

Hamersley Iron Pty Limited v The National Competition Council [2008] FCA 598 (5 May 2008).txt

hamersley iron pty limited v national competition council 2008 fca 598 5 may 2008 last updated 5 may 2008federal court australiahamersley iron pty limited v national competition council 2008 fca 598trade practice access service pt iiia thetrade practice act 1974 cth rail track service whether application made 44f 1 national competition council recommendation particular rail track service declared following rejection similar application re judicata abuse process estoppel principle earlier court order construed constitutes undertaking courttrade practice act 1974 cth s 44b 44f 1 44g 2 44hacts interpretation act 1901 cth 33 1 federal court rule 1979 cth 35 r 11 37 r 6hamersley iron pty ltd v national competition council 1999 fca 867 1999 164 alr 203consideredbhp billiton iron ore pty ltd v national competition council 2007 fcafc 157 2007 162 fcr 234citedhope down management service pty ltd v hamersley iron pty ltd 1999 fca 1652 2000 atpr 41 733consideredathens v randwick city council 2005 nswca 317 2005 64 nswlr 58followedyates property corp pty ltd v boland 1998 89 fcr 78citedowston nominee 2 pty ltd v branir pty ltd 2003 fca 629 2003 129 fcr 558citednewcastle city council v leaway pty ltd 2005 nswlec 619citedpolyaire pty ltd v k aire pty ltd 4 2007 147 lsjs 65citedecrosteel pty ltd pack business form broker v pefor printing pty ltd unreported sup ct nsw 12 november 1997 santow j citedmcnair anderson associate pty ltd v hinch 1985 vicrp 30 1985 vr 309citedrepatriation commission v nation 1995 fca 1277 1995 57 fcr 25citedblanch v british american tobacco australia service ltd 2005 nswsc 241 2005 62 nswlr 653citedpacific carrier ltd v bnp paribas 2004 hca 35 2004 218 clr 451citedlion nathan australia pty ltd v cooper brewery ltd 2006 fcafc 144 2006 156 fcr 1citedaustralian energy ltd v lennard oil nl 2 1988 2 qd r 230 citedkwikspan purlin system pty ltd v federal commissioner taxation 1987 93 flr 263citedblacktown concrete service pty ltd v ultra refurbishing construction pty ltd liq 1998 43 nswlr 484citedbass v permanent trustee co ltd 1999 1999 hca 9 198 clr 334citedainsworth v criminal justice commission 1992 hca 10 1992 175 clr 564citedturner v london transport executive 1977 icr 952citedhacking v lee 1860 9 wr 70citedmaxwell v irc 1962 nzlr 683citedord v ord 1923 2 kb 432 citedrichards v richards 1953 p 36citedburman v wood 1948 1 kb 111 citedmills v cooper 1967 2 kb 459 citednew brunswick railway company v british french trust corporation 1939 ac 1citedco ownership land development pty ltd v queensland estate pty ltd 1973 47 aljr 519citedgamser v nominal defendant 1977 hca 7 1977 136 clr 145citedpermewan wright consolidated pty ltd v attorney general nsw 1978 35 nswlr 365citedminister immigration ethnic affair v kurtovic 1990 fca 22 1990 21 fcr 193appliedpapazoglou v republic philippine 1997 74 fcr 108citeds motor repair pty ltd v caltex oil australia pty ltd 1988 12 nswlr 358citedharman v secretary state home department 1983 1 ac 280 citedlade co pty ltd v black 2006 2 qd r 531 citedthomson australian holding proprietary limited v trade practice commission 1981 148 clr 150citedcommonwealth v verwayen 1990 170 clr 394 appliedlegione v hately 1983 hca 11 1983 152 clr 406appliedwaltons store interstate ltd v maher 1988 hca 7 1988 164 clr 387appliedhalsbury law australia butterworths 1995 spencer bower turner handley re judicata 3rded 1996 j tarrant construing undertaking court order 2008 82 2 australian law journal82hamersley iron pty limited acn 004 558 276 v national competition council pilbara infrastructure pty ltd acn 103 096 340 vid 1230 2007weinberg j5 may 2008melbournein federal court australiavictoria district registryvid 1230 2007between hamersley iron pty limited acn 004 558 276 applicantand national competition councilfirst respondentthe pilbara infrastructure pty ltd acn 103 096 340 second respondentjudge weinberg jdate order 5 may 2008where made melbournethe court order 1 application dismissed 2 party advised file serve short submission regarding cost 12 may 2008 3 failing filing submission ordered applicant pay respondent cost cost taxed default agreement note settlement entry order dealt order 36 federal court rule federal court australiavictoria district registryvid 1230 2007between hamersley iron pty limited acn 004 558 276 applicantand national competition councilfirst respondentthe pilbara infrastructure pty ltd acn 103 096 340 second respondentjudge weinberg jdate 5 may 2008place melbournereasons judgment1 application declaratory prerogative relief hamersley iron pty ltd hamersley national competition council ncc independent statutory authority established pursuant 29a thetrade practice act 1974 cth tpa ncc exists primarily ass progress made state territory government opening competition agency undertaking business activity also provides advice recommendation designated minister usually federal treasurer regarding declaration service essential facility provision ofpt iiiaof tpa 2 hamersley wholly owned subsidiary rio tinto limited operates various mine pilbara region western australia owns operates rail track service used transport iron ore export one competitor pilbara infrastructure pty ltd tpi wholly owned subsidiary fortescue metal group ltd seek access rail track service 3 16 november 2007 tpi made application ncc 44f 1 tpa requesting recommend designated minister particular service declared application identified hamersley provider service owner facility application related 4 hamersley claim reason certain order made kenny j inhamersley iron pty ltd v national competition council 1999 fca 867 1999 164 alr 203 first hamersley iron ncc prevented considering otherwise dealing tpi application 5 infirst hamersley iron similar application made robe river mining co pty ltd group associated joint venturer hereafter described convenience robe river kenny j held ncc power recommend declaration hamersley rail track underpt iiiaof tpa service within 44b rail track involved use production process therefore fell within exclusion definition service section 6 tpi application ncc lie behind proceeding involves rail track featured infirst hamersley iron thoughit extends beyond hamersley claim ncc remains permanently bound honour order infirst hamersley iron therefore power consider tpi application recommend declaration service despite fact tpi party earlier proceeding 7 hamersley invokes doctrine re judicata central plank case also relies upon say undertaking given court ncc infirst hamersley iron submits prevent ncc entertaining tpi application legislative scheme8part iiiaof tpa contains statutory regime regulated access may described essential facility introduced 1995 regime allows designated minister usually federal treasurer declare particular service pursuant 44h minister cannot proceed without recommendation ncc mean declaration must filtered ncc 9 declaration service override would otherwise exclusive right owner monopoly facility determine term condition upon owner supply service others essence focus upon facility national significance would uneconomic duplicate supply service access would promote competition efficiency public interest 10 first stage process determine whether facility essential section 44f 1 provides designated minister person may apply ncc writing asking recommend particular service declared section 44f 2 state receiving application ncc must inform provider service receipt subsequently recommend designated minister service either declared declared section 44f 4 provides deciding recommendation make ncc must consider whether would economical anyone develop another facility could provide part service 11 section 44b defines service purpose ofpt iiia relevantly state service mean service provided mean facility includes use infrastructure facility road railway line however section provides term service include use production process except extent integral subsidiary part service 12 ncc cannot recommend relevant minister cannot declare service open access third party unless satisfied matter set 44g 2 section provides council cannot recommend service declared unless satisfied following matter access increased access service would promote material increase competition least one market whether australia market service b would uneconomical anyone develop another facility provide service c facility national significance regard size facility ii importance facility constitutional trade commerce iii importance facility national economy access service provided without undue risk human health safety e access service already subject effective access regime f access increased access service would contrary public interest 13 ministerial decision declare service capable review application provider service review undertaken australian competition tribunal likewise minister reject recommendation declaration unsuccessful applicant may apply australian competition tribunal decision reviewed 14 general term service cannot declared unless would promote competition competition promoted access relevant service creates condition improvement competition 15 provision ofpt iiiaare complex given rise difficulty example judge court differed meaning term use production process 44b recently inbhp billiton iron ore pty ltd v national competition council 2007 fcafc 157 2007 162 fcr 234 full court majority disapproved kenny j reasoning infirst hamersley iron march year high court granted special leave appeal decision full court 16 well established doctrine re judicata apply whether decision said give rise form estoppel overruled make difference whether initial judgment wrong follows need concern whetherfirst hamersley ironrepresents good law question whether operates way hamersley contends first hamersley iron17 considering whetherfirst hamersley ironoperates prevent ncc dealing tpi application course necessary pay close attention issue determined case 18 fact may briefly stated september 1998 robe river applied ncc 44f 1 recommend designated minister declare hamersley rail track service application identified hamersley provider service owner facility related 19 robe river application went state follows 3 2 service robe seek access bulk iron ore rail track transportation service provided hamersley rail infrastructure facility defined inpart 4of application rail track service distinguished rail haulage service may available relation facility 3 3 rail track service required use robe train robe hi rail section hamersley rail infrastructure facility described inpart 4of application rail track service comprises use infrastructure facility hamersley rail infrastructure facility mainline yard track maintenance support road including track fault detection monitoring system use communication service train control system inclusive two way radio 3 4 access sought robe use rail track service robe train laden iron ore robe west angelas minesite travelling minesite robe port walcott cape lambert empty robe train return journey minesite 3 6 robe seeking service provided hamersley locomotive rolling stock hi rail robe provide locomotive rolling stock hi rail necessary operational personnel hi rail road motor vehicle capable driven rail track used maintenance purpose 20 hamersley rail infrastructure facility characterised inpart 4of robe river application following term 4 1 facility used provide rail track service section standard gauge railway line owned operated hamersley run approximately 300kms central pilbara existing robe overpass millstream chichester national park near emu siding south hamersley range rosella siding 250kp point mainline b eastward rosella siding existing railway formation hamersley marandoo minesite c hamersley marandoo minesite east towards hamersley yandicoogina deposit point line intersect proposed robe rail line extending north west angelas minesite yet constructed 4 2 facility includes following component aspect standard gauge rail line including mainline yard track passing siding culvert bridge temporary diversion track rail line maintenance support road sign signalling rail line hamersley train control system including two way radio used hamersley track fault detection monitoring system built railway facility provide rail track service safely 21 detail mainline track specification maintenance support road sign signalling train control system track fault detection monitoring system set subsequent paragraph 22 infirst hamersley iron kenny j noted 6 robe river stated par 4 8 robe river application provide locomotive rolling stock operational personnel required run robe train hamersley rail infrastructure facility robe also provide hi rail vehicle personnel maintenance support robe train rolling stock using rail maintenance support road robe provide train control system robe train travelling robe rail track seek access hamersley train control system regard 23 kenny j found hamersley used rail track service element mining operation transport batch ore differing grade composition quantity number mine operated area mine produced ore different grade contributed particular batch export product assistance rail track service mine operated pit within larger mine honour found step process including use rail track service part highly integrated operation designed bring product port blending stockpiling operation occurred led conclude rail track involved use production process therefore fell within exclusion definition term service 24 kenny j delivered reason judgment 28 june 1999 hamersley sought tender transcript took place day ncc tpi objected tender transcript submitted whatever might transpired judgment delivered could relevant issue proceeding indicated would transcript marked identification rule upon admissibility delivered judgement matter considered way hamersley put case transcript plainly relevant therefore accept tender 25 transcript show honour delivered reason judgment indicated counsel prepared draft order proposed make made draft available counsel proposed order could considered submission made saying would defer question cost honour continued declaration paragraph 1 2 first page substance think follow term application made hamersley say substance replicate exactly 26 foreshadowed declaration ultimately made following term 1 rail track service defined inpart 3of application declaration recommendation made pursuant 44f 1 ofpart iiiaof thetrade practice act 1974cth act second sixth respondent service within meaning 44b act 2 first respondent power make recommendation regarding declaration rail track service designated minister pursuant 44f 2 b act 27 honour said second two declaration would follow term paragraph 1 28 honour proceeded address counsel present court regard hamersley represented m melanie sloss ncc mr robin brett qc robe river respondent mr norman bryan transcript read follows honour hear mr brett question injunction presently draftedi would propose first respondent permanently restrained making recommendation regarding declaration rail track service designated minister pursuant section 44f 2 b act understand submission made real difficulty arose relation injunction might wish make relation protected contractual right issue secondly would propose application made hamersley court application 30 october 1998 granted extent declaration madeand injunction ordered otherwise dismissed reflects second part like reason judgement already spoken matter cost mr brett honour wish hear first honour might useful mr brett yes mr brett nothing say question declaration relation injunction would simply submit necessary regard fact declaration going made ncc would act accordingly really say honour honour content accept thatunless one party something say matter understand council saying one would expect reputable responsible public body court made declaration power take matter m sloss m sloss yes honour appreciate learned friend said position slightly different position understood outline filed proceeding perhaps take instruction honour yes certainly m sloss take instruction anything anyone else wish say mr bryan support mr brett submission behalf second sixth respondent honour thank mr bryan emphasis added 29 taken instruction m sloss made certain submission regarding wording proposed declaration m sloss continued turning order page 2 light learned friend mr brett assurance court morning would unnecessary grant injunction paragraph 1 requires consequential change former paragraph 2 emphasis added 30 kenny j made declaration foreshadowed adjourned question cost date fixed 31 one matter relation tofirst hamersley ironshould noted hope down management service pty ltd hope down company unconnected robe river granted leave intervene proceeding kenny j basis intended near future make access application regarding hamersley rail track ncc however course trial hope down filed motion seeking joined party proceeding rather merely appearing intervener presumably order able take benefit judgment might given favour ncc robe river hope down application granted duly joined proceeding significance fact become apparent later reason judgment first hamersley iron appeal32 separate appeal hope down ncc appealed judgment kenny j infirst hamersley iron however 22 november 1999 appeal came hearing full court informed robe river withdrawn application access hamersley rail track counsel hamersley submitted appeal proceed moot 33 however counsel ncc submitted still live issue relation cost determined counsel also argued would public interest appeal proceed hope down joined submission also submitted appeal heard otherwise honour order might operate estoppel future application might make access hamersley rail track 34 response hamersley offered certain undertaking full court undertaking related cost however fourth undertaking specifically addressed hope down concern regarding issue estoppel re judicata undertaking following term 4 relation application made pt iiia thetrade practice act 1974by hope down management service pty ltd related corporation relation proceeding including proceeding australian competition tribunal connection application contend declaration order made kenny j proceeding 28 june 1999 reason judgment upon declaration order founded give rise issue estoppel re judicata affecting contention raised hope down management service pty ltd related corporation orb national competition council 35 counsel ncc submitted full court accept undertaking offered counsel hope down took stance indicated wished proceed appeal 36 ultimately full court held regard undertaking offered hamersley purpose would served proceeding hear appeal hope down management service pty ltd v hamersley iron pty ltd 1999 fca 1652 2000 atpr 41 733at 14 possible prejudice hope down resulting issue estoppel re judicata removed undertaking accordingly court ordered 15 appeal forever stayed added taken expressed view correctness otherwise judgment appealed 37 transcript proceeding full court tendered transcript senior counsel hope down expressed concern future application client might make recommendation relation hamersley railway track would met claim issue estoppel re judicata mr neil young qc behalf hamersley responded submitting appeal become academic issue case depended entirely upon definition rail track service robe river application defunct 38 chief justice black commented everything turned upon particular application 39 mr young observed whole concept rail track service subject honour declaration product definition application hence honour declaration question subject appeal appeal rail track service defined inpart 3of application declaration recommendation made pursuant 44f 1 service 40 black cj interposed issue estoppel 41 mr young replied issue estoppel one need turn back pleading see entire issue pleaded whether rail track service defined robe application service within meaning 44b act relation rail track service sought robe peculiarity honour mentioned 42 mr young continued hope down made application would mean would new piece litigation relating application defined robe hypothetical application new application would presumably define service may bare bone service robe sought may freight aspect well indeed may application bhp railway terminus much closer hope down proposed mine hamersley 43 mr young added ncc refused application hope down question whether decision lawful could tested pointed evidence proceeding would likely different would fact surrounding operation rail track service submitted kenny j judgment could matter practical reality operate issue estoppel hope down 44 notwithstanding mr young submission goldberg j member full court expressed concern whether issue estoppel might arise transcript record mr young saying follows put honour mind rest issue estoppel submission arise court different view thought possibility would prepared proffer second undertaking take issue estoppel point goldberg j re judicata mr young re judicata yes 45 exchange explains undertaking eventually given hamersley relation issue estoppel re judicata ncc tpi rely upon mr young analysis position argument full court encapsulating submission hamersley cannot rely upon form estoppel proceeding tpi access application46 previously indicated 16 november 2007 tpi lodged ncc application seeking access termed rail track service provided railway network owned hamersley iron pty ltd located pilbarra western australia 47 application tpi stated hamersley owned 3 2 1 railway line paraburdoo dampier approximately 385km long 3 2 2 railway line yandicoogina rosella siding paraburdoo dampier railway approximately 195km long and3 2 3 railway line brockman 2 rosella siding approximately 45km long described thehamersley rail network 48 rail track service tpi seek declared defined application use facility comprising hamersley rail network 3 4 1 railway line paraburdoo dampier including point 3 4 2 railway line yandicoogina rosella siding including point and3 4 3 railway line brockman 2 rosella siding including point hamersley service 49 tpi said hamersley service would also include use associated infrastructure necessary allow third party train rolling stock move along hamersley rail network point interconnection 50 tpi lodged application ncc notified hamersley accordance requirement 44f 2 hamersley responded submitting ncc bound byfirst hamersley ironand consequence permitted receive consider make recommendation respect tpi application 51 ncc however rejected hamersley submission made clear intended consider tpi application call submission regarding application implication due course make recommendation designated minister whether service declared 52 essence hamersley put forward three argument ncc power deal tpi application ncc precluded re judicata even re judicata strict sense apply doctrine somewhat akin thereto applicable permit ncc embark upon proposed course would condone breach undertaking given court mr brett kenny j delivered reason judgment 53 particular hamersley initially relied upon issue estoppel well indeed case seemed focus upon issue estoppel rather re judicata breach undertaking however course argument hamersley expressly abandoned reliance upon issue estoppel 54 shall deal hamersley three contention turn re judicata55 inhalsbury law australia butterworths 1995 vol 12 190 40 distinction drawn re judicata issue estoppel anshun estoppel said final judgment competent tribunal may affect subsequent proceeding party three way 56 first judgment extinguishes cause action subject decision cause action established said merge judgment cause action rejected party estopped claiming continues exist consequently proceeding may brought party privy enforce particular cause action effect sometimes described cause action estoppel re judicata chamberlain v deputy commissioner taxation 1988 hca 21 1988 164 clr 502 57 second judgment court represents conclusive determination ultimate finding case also issue fact law necessary decision generally described issue estoppel blair v curran 1939 hca 23 1939 62 clr 464at 531 2 andjackson v goldsmith 1950 hca 22 1950 81 clr 446at 466 58 third decision may preclude party raising future proceeding cause action issue could raised former proceeding extension re judicata issue estoppel generally known australia anshun estoppel port melbourne authority v anshun pty ltd 1981 hca 45 1981 147 clr 589 59 spencer bower turner handley re judicata 3rded 1996 spencer bower term re judicata used broadly spencer bower 2 speaks re judicata rule precludes party denying subsequent litigation correctness decision earlier litigation spencer bower describes re judicata estoppel say encompasses cause action estoppel issue estoppel second consequence merger original cause action judgment favour plaintiff referred merger judgment 60 either view re judicata arise final judgment competent tribunal given merit cannot arise proceeding discontinued resolved way dismissal want prosecution non compliance court order order establish re judicata must shown cause action later proceeding isidenticalto litigated former proceeding identity cause action determined matter substance rather form re judicata bind party privy 61 re judicata formerly regarded rule evidence generally considered rule public policy doctrine applies constitutes absolute bar subsequent suit cause action previously indicated 16 correctness decision relevant final decision court jurisdiction thesame questionand thesame party binding unless overturned appeal 62 spencer bower state 17 party setting re judicata way estoppel bar opponent claim foundation party claim required establish decision final merit determined question raised later litigation party later litigation either party earlier proceeding privy 63 hamersley submission ncc barred re judicata dealing tpi application focus largely upon second two declaration made kenny j infirst hamersley iron namely ncc power make recommendation regarding declaration rail track service designated minister pursuant 44f 2 b act 64 hamersley submits declaration expressed clear unambiguous language unqualified say ncc lacked power relation robe river application say declaration would last long condition materially alter said ncc lacked power relation particular service would time respect applicant might wish gain access 65 ncc tpi challenge interpretation honour declaratory order submit wrong focus solely upon second two declaration honour made ignore first say second declaration read together first honour plainly intended becomes immediately apparent second declaration effect hamersley contends 66 considering competiting contention useful set first honour two declaration following term 1 rail track service defined inpt 3of application declaration recommendation made pursuant 44f 1 ofpt iiiaof thetrade practice actby second sixth respondent service within meaning 44b act 67 ncc tpi submit second declaration operative declaration cannot read isolation first second declaration us term rail track service capitalised understood reference definition expression first declaration first declaration turn link declaration definition rail track service inpart 3of robe river application 68 follows ncc tpi submit second declaration bear meaning hamersley contends read limited manner along first declaration intended quell particular controversy gave rise tofirst hamersley iron must therefore understood preventing ncc dealing rail track serviceas defined robe river applicationand greater scope 69 debate party give rise need consider court go construing order particularly declaratory order another judge 70 hamersley submits order made one judge come another judge consideration court construes like document delve subjective intention judge pronouncing order radmanovich v nedeljkovic 2002 nswsc 212at 7 submission plainly correct 71 hamersley next submits process construction must faithful meaning order originally pronounced later court cannot make order considers original court made see generallyp w young construing court order 1998 72alj117 nonetheless tolerably clear hamersley accepts construing order regard may reason judgment extrinsic material appropriate athens v randwick city council 2005 nswca 317 2005 64 nswlr 58at 131 140 per santow ja tobias ja agreed moreover construing order may relevant know successful plaintiff applicant sought way relief shall return issue shortly 72 hamersley formulates issue construction concerning order kenny j follows whether hamersley contends reference rail track service second declaration mean bulk iron ore rail track transportation service provided hamersley rail infrastructure facility consequence ncc power make recommendation regarding declaration service whether ncc tpi contend adoption second declaration defined term rail track service robe river application carry implication second declaration merely state ncc lack power make recommendation declare service pursuant robe river declaration application 73 hamersley submits resolving issue need resort extrinsic material including argues reason judgment submits kenny j intended narrow construction ncc tpi contend honour would said argues ordinary meaning word used second declaration court declared position respect recommendation regarding declaration hamersley rail track service 74 hamersley say construction surprising ncc construction robe river party would inhibited declaration made kenny j making application even next day recommendation regarding rail track service second application robe river would robe declaration application subject order 75 hamersley argues ncc construction hope down would free immediately followingfirst hamersley iron apply recommendation exactly term robe river done say would contrary principle would mean declaration made kenny j would quelled controversy party court would therefore discharged judicial function 76 hamersley say regard extrinsic material result although rail track service defined robe river application recommendation scheme ofpt iiiaof tpaprovides declaration service would everyone robe river sensible field operation declaratory order must intended prevent someone else seeking recommendation declaration precisely service moreover hamersley application subject kenny j declaration sought narrower declaration ncc lacked power deal submission relation therobe declaration application broader declaration lacked power make recommendation designated minister declaration thehamersley rail track service first declaration sought limited robe declaration application second limited hamersley submits second declaration reflected term broader declaration sought 77 finally hamersley submits fourth undertaking full court make clear party proceeding including ncc well full court assumed kenny j order related robe declaration application also subsequent application might brought hope down kenny j order regarded limited robe river application undertaking hamersley would necessary 78 ncc tpi challenge interpretation kenny j order submit starting point construing judicial order must consider precisely needed quell justiciable controversy gave rise proceeding say would go beyond proper boundary judicial process determine right applying law fact neither agreed determined without regard evidence led particular case 79 respondent say controversy kenny j plainly extend possible future time circumstance honour order interpreted though say resort may contextual matter reason judgment pleading order identify subject matter controversy aid interpreting order refer regard yates property corp pty ltd v boland 1998 89 fcr 78 owston nominee 2 pty ltd v branir pty ltd 2003 fca 629 2003 129 fcr 558at 49 51 athens v randwick city council 2005 nswca 317 2005 64 nswlr 58at 27 29 129 140 newcastle city council v leaway pty ltd 2005 nswlec 619at 28 36 polyaire pty ltd v k aire pty ltd 4 2007 147 lsjs 65 80 respondent also refer recent article j tarrant construing undertaking court order 2008 82 2 australian law journal82 article suggested court taken two different approach whether reference may made reason judgment construing court order one view may done court order ambiguous view reason judgment considered extrinsic material however recent line authority emerged hold court order must always examined context reason judgment 81 number authority cited tarrant instructive first way background inecrosteel pty ltd pack business form broker v pefor printing pty ltd unreported sup ct nsw 12 november 1997 santow j observed 6 order cope situation readily foreseen later application hence precise interpretation may open argument 82 tarrant note debate whether may appropriate certain circumstance merely regard reason judgment also material order interpret court order would include pleading affidavit 83 tarrant cite support traditional constrained view must ambiguity court order reason judgment considered mcnair anderson associate pty ltd v hinch 1985 vicrp 30 1985 vr 309at 312 repatriation commission v nation 1995 fca 1277 1995 57 fcr 25at 33 andblanch v british american tobacco australia service ltd 2005 nswsc 241 2005 62 nswlr 653at 655 note however relation contract movement away requirement ambiguity extrinsic material examined pacific carrier ltd v bnp paribas 2004 hca 35 2004 218 clr 451 similar movement relation interpretation corporate constitution lion nathan australia pty ltd v cooper brewery ltd 2006 fcafc 144 2006 156 fcr 1at 51 100 238 84 movement anticipated relation court order inyates property corp pty ltd v boland 1998 89 fcr 78 full court court held interpreting order court framed unambiguous language regard still reason given court making order formed part context order made see alsoaustralian energy ltd v lennard oil nl 2 1988 2 qd r 230 second flexible line authority preferred court appeal inathens v randwick city councilwhere santow ja explained 129 purpose court order ordinarily giveeffecttoa judgment see alsopolyaire pty ltd v k air pty ltd 4 2007 sasc 36 kwikspan purlin system pty ltd v federal commissioner taxation 1987 93 flr 263 85 view weight authority favour view ambiguity required going beyond court order order always interpreted context reason judgment position taken tarrant whose conclusion agree 86 indeed would go opinion permissible construing court order irrespective whether ambiguous regard least pleading defined issue resolved owston nominee 2 pty ltd v branair pty ltd 2003 fca 629 2003 129 fcr 558andathens v randwick city council 87 note inowston nominee 2 pty ltd v branair pty ltd 2003 569 allsop j concluded construing court order regard may even evidence led judge pronounced order see alsoblacktown concrete service pty ltd v ultra refurbishing construction pty ltd liq 1998 43 nswlr 484andaustralian energy ltd v lennard oil nl 2 232 88 ncc tpi argue fair reading offirst hamersley ironmakes clear legislative regime inpt iiiaof tpa kenny j engaged making determination entirely dependent evidence led case current state fact refer 15 25 honour reason judgment submit kenny j asked purport make order expressed extend possible future time circumstance submit honour order interpreted way 89 respondent say hamersley sought interpret kenny j order ambulatory effect artificially impermissibly isolating second declaration context say 8 honour reason judgment make clear contextual relationship declaration ultimately made kenny j stated explicitly became second declaration sought consequence first 90 finally ncc particular say hamersley attempt rely upon paragraph 3 b 5 b identified detail claim infirst hamersley ironas revealing dichotomy specific form declaration ambulatory form declaration thus leading inference honour intended second declaration ambulatory effect rejected written submission ncc say 13 1 premise applicant relies unsound paragraph 3 5 deal process ncc paragraph 3 b 5 b deal outcome process ncc paragraph 3 b 5 b specific ambulatory incorporates definition hamersley rail track service first set paragraph 1 reference particular robe river application 13 2 clear form relief sought paragraph 3 5 application depend entitlement relief form paragraph 1 2 first established see chapeau paragraph 3 13 3 reason clear dichotomy question process outcome specific ambulatory 91 ncc concludes application infirst hamersley ironwas drafted recognition specificity required request permanent ongoing ambulatory relief would rejected submits honour order read way 92 tpi join ncc submission however add apart fact kenny j used term rail track service honour carefully narrowly defined first declaration open make declaration wider term nomatterbefore court amenability rail track service defined declaration recommendation ncc accordingly court jurisdiction make declaration anything bass v permanent trustee ltd 1999 hca 9 1999 198 clr 334at 45 47 tpi also citesainsworth v criminal justice commission 1992 hca 10 1992 175 clr 564at 582 support proposition underlying factual subject matter proposed declaration uncertain hypothetical court lack jurisdiction make declaration 93 ncc tpi rely solely upon need construe kenny j order context also rely upon policy underliespt iiiaof tpa submit notion service may declared import process conducted ncc element dynamic access application must turn upon particular fact include merely provider service available also person seeking access actually desire unless read manner criterion set 44g cannot sensibly applied 94 hamersley responds pointing kenny j made clear delivered reason judgment prepared grant permanent injunctive relief ncc term foreshadowed submits assurance given mr brett honour would granted relief say would basis upon later court could properly read term whatever reason circumstance changed dramatically injunction originally granted longer appropriate application could made discharged varied however failing application injunction would stand operate time according term 95 number difficulty aspect hamersley submission first place far satisfied kenny j would granted injunction term foreshadowed mr brett assurance transcript reveals honour prepared pronouncing final order hear submission party form injunction take entirely speculative whether submission would made matter conjecture whether heard submission honour would granted injunctive relief foreshadowed exactly term 96 next obviously force mr young submission full court regarding effect changed circumstance said mainly context issue estoppel however applies equal force re judicata 97 evidence rail track service defined infirst hamersley iron operates today nine year ago indeed evidence suggest mean must question whether still constitutes use production process irrespective whether test used kenny j held correct 98 evidence current position regarding rio tinto ltd group company hamersley wholly owned subsidiary rio tinto hold interest operates eleven mine associated iron ore treatment facility result rio tinto acquisition north limited 2000 acquired majority interest previously robe river joint venture following acquisition rio tinto integrated operation hamersley robe river context pilbara iron pty ltd wholly owned subsidiary hamersley operates maintains combined infrastructure asset including rail asset 99 mean existing dedicated integrated rail system carry ore rio tinto mine port dampier cape lambert includes number line part hamersley rail track system time offirst hamersley iron dual track system emu siding rosella whereas 1998 single track addition spur line west angelas mine juna down hope down mine west angelas spur line part hamersley rail track service time current past rail network set annexures b judgment marked jm1 jm3 respectively 100 tpi application seek recommendation declaration respect railway line paraburdoo dampier approximately 385 kilometre long railway line yandicoogina rosella siding paraburdoo dampier railway approximately 195 kilometre long railway line brockman 2 rosella siding approximately 45 kilometre long 101 access tpi seek includes part hamersley rail track service sought robe river however tpi seek greater access well hamersley surprisingly submits greater includes lesser accordingly part tpi seek excluded determined infirst hamersley iron must follow tpi application whole cannot proceed 102 logically hamersley submission correct however said evidence suggests configuration part rail track sought subject declaration broadly similar subject earlier proceeding however putting question one side nothing suggest evidence support conclusion material circumstance usage changed significant given facility subject current application clearly considered infirst hamersley iron 103 nine year elapsed sincefirst hamersley ironwas decided clear evidence major development pilbara iron ore industry time rapid rise china become world largest steel producer importer iron ore presented industry opportunity grow rate scale contemplated decade ago according tobuilding prosperity australian iron ore industry 21stcentury may 2006 malcolm gray economic consultant commissioned rio tinto write report iron ore production australia grew 80 per cent faster total world production ten year 2005 period australian iron ore export grew 25 per cent faster total world export 104 mr gray say pilbara iron ore rail system regarded among best heavy haul railway world say form vital part closely integrated iron ore production process importantly say report page 8 design process constantly refined innovation included introduction one mine integrated production process hamersley iron pilbara rail company pilbara iron initiative hamersley iron robe combine integrated management secure efficient operation infrastructure asset 105 word mr gray regard pilbara iron ore industry state constant change new mine developed consequent expansion infrastructure upon industry depends point hamersley robe river made major investment area including construction rail extension new mine yandicoogina west angelas rail extension form part overall rail network 106 mr gray refers specifically construction dual track heavily congested part rail system order accommodate increased production also note concrete rail sleeper replacing timber one along track brockman mine rosella siding refers new project construction completed response china demand iron ore import include dual tracking 145 kilometre railway north rosella link existing dual track providing dual track whole section rail rosella robe hamersley iron crossover refers extension railway track system hope down service new mine commence production 2008 107 mr gray report regarding change taken place past decade relation hamersley rail infrastructure challenged finding support respondent contention tpi application relates access rail track system differs material respect subject offirst hamersley iron minor difference configuration importantly would seem significant difference usage fact change make difficult assert hamersley issue raised tpi application areidenticalto robe river application 108 mindful tpi submission distinction rail track service considered robe river application access sought tpi application robe river application point point service service enabling running train point near emu siding point intersection proposed robe river rail line aim allow development robe river west angelas mine transport iron ore port walcott use hamersley rail network contemplated tpi point service one would permit access point along network 109 may logic distinction point point point service however significance practical matter context case eludes point point service need necessarily preclude train stopping along particular route allowing access gained along way therefore reject aspect ncc submission 110 accept track consideration infirst hamersley ironlies squarely within hamersley rail network therefore track would encompassed within recommendation made response tpi application difficulty hamersley submission lie premise nothing consequence changed somewhat bold submission even kenny j order put matter colloquially frozen time 111 essence estoppel involvesidentity subject matter party seeking set estoppel must establish opponent seeking agitate question law issue fact subject final decision party court competent jurisdiction 112 inturner v london transport executive 1977 icr 952 plea issue estoppel failed finding industrial tribunal sufficiently clear precise browne lj said 964 essential foundation plea issue estoppel must issue issue raised first proceeding issue issue raised second proceedingsare identical party seek rely estoppel establish identity emphasis added 113 example strictly court viewed requirement may useful held party judgment given suing representative capacity estopped suing different representative capacity subject matter litigation two proceeding see generallyhacking v lee 1860 9 wr 70 similarly acquittal charge wilfully making false tax return held bar civil claim brought commissioner alleging return fraudulent wilfully misleading issue identical addition onus proof differed maxwell v irc 1962 nzlr 683 114 case change circumstance led rejection claim estoppel inord v ord 1923 2 kb 432 wife sued maintenance deed separation husband sought deed set aside basis fraudulently concealed adultery first action husband failed prove adultery later action instalment held could rely upon act adultery knowledge time first action 115 similarly inrichards v richards 1953 p 36 held wife charge cruelty dismissed justice estoppel preventing leading evidence together evidence covering later period establish cruelty later date inburman v wood 1948 1 kb 111 held decision refusing order possession based hardship would bar later proceeding factor relevant hardship might change effect ismills v cooper 1967 2 kb 459 held decision defendant gypsy bar proceeding alleging gypsy later date 116 spencer bower 199 considers case support principle issue estoppel apply changing situation point made innew brunswick railway company v british french trust corporation 1939 ac 1 lord maugham lc said 20 issue distinctly raised decided action party represented unjust unreasonable permit issue litigated afresh party person claiming view doctrine cannot made extend presumption probability issue second action may yet cannot asserted beyond possible doubt identical raised previous action earlier action relevant issue true construction bond sued upon issue construction second action could indeed proved second action besimilarto decided first related different cause action based bond could asserted issue moreover matter common knowledge bond often issued different date different country matter might well possible bearing true construction emphasis added 117 general identical subject matter requirement construed strictly inco ownership land development pty ltd v queensland estate pty ltd 1973 47 aljr 519 walsh j said 522 order principle issue estoppel may apply must possible assert without doubt issue identical 118 light authority hamersley estoppel claim must fail view tpi application raise different issue confronted ncc time offirst hamersley iron order kenny j pronounced must construed light honour reason judgment whole well context issue presented time 119 sake completeness deal hamersley alternative submission argues even rail track today relevant respect 1998 claim re judicata still succeed submits matter great difference may two track system kenny j order still speak must stand unless varied 120 hamersley recognises implication submission accepts time condition may change degree warrant reconsideration whether railway system still involves use production process say event would open ncc make application pursuant 37 r 6 thefederal court rule variation kenny j order would basis matter occurring judgment 121 held 37 r 6 authorise court set aside judgment regularly passed entered new fact circumstance arisen seegamser v nominal defendant 1977 hca 7 1977 136 clr 145 concerned similar rule supreme court new south wale injunction granted however order may made rule suspending operation injunction date changed circumstance see generallypermewan wright consolidated pty ltd v attorney general nsw 1978 35 nswlr 365 122 unable accept variant hamersley submission ncc tpi submit kenny j order related specifically hamersley rail track service stood either configuration use track differs significantly basis estoppel moreover question ncc establish changed circumstance hamersley must establish earlier judgment give rise estoppel 123 doubt 37 r 6 intended provide mechanism party could escape establishedestoppelmerely circumstance changed rather previously discussed purpose seems enable judge vary discharge aninjunctiongranted previously circumstance giving rise injunction changed 124 fortified conclusion re judicata nature legislative scheme ncc exercise statutory duty ncc ordinary litigant seek vindicate private right prima facie duty conferred statute intended parliament exercised time time occasion arises see generallys 33 1 theacts interpretation act 1901 cth well known observation gummow j inminister immigration ethnic affair v kurtovic 1990 fca 22 1990 21 fcr 193at 211 218 9 125 follows hamersley claim re judicata made residual estoppel point126 hamersley next submitted albeit tentatively ncc barred dealing tpi application even kenny j order bear interpretation contended 127 may counsel mind notion akin abuse process basis contention argument fails doctrine abuse process distinct various form proprietary estoppel ordinarily operates shield rather sword addition generally confined curial proceeding operate prevent investigative like process carried see generallypapazoglou v republic philippine 1997 74 fcr 108at 131 2 128 reject hamersley submission notion akin abuse process used obtain prohibition injunctive relief kind sought ncc assurance kenny j129 hamersley submits mr brett assurance kenny j ncc would abide declaratory order without need permanent injunction granted gave rise anundertakingto court ncc permitted resile 130 undertaking formal promise court act refrain acting particular manner see generally 35 r 11 thefederal court rule 131 undertaking often given court one party dispute many case undertaking form part court order nonetheless undertaking effect law injunction breach undertaking contempt court self evidently principle apply interpreting court order also apply interpreting undertaking motor repair pty ltd v caltex oil australia pty ltd 1988 12 nswlr 358 132 quite common injunctive relief sought commonwealth court inquire motion whether injunction really necessary whether appropriate undertaking forthcoming typically circumstance undertaking readily proffered need grant injunctive relief thereby avoided 133 le common though still unusual declaratory injunctive relief sought commonwealth assurance given abide declaration injunction therefore necessary case formal undertaking normally proffered assumed commonwealth act accordance law declared court commonwealth expected act model litigant assumed comply spirit well letter law 134 hamersley submits assurance given kenny j mr brett behalf ncc set 28 honour statement content accept amounted formal undertaking court therefore tantamount permanent injunction 135 hamersley note ncc cost submission kenny j judgment delivered referred mr brett assurance honour ncc would act accordance declaration court accepted making injunctive relief unnecessary hamersley note honour judgment regarding cost contained following observation 11 consequence court ultimate decision ncc since given furtherundertakingthat made unnecessary grant injunctiverelief originally sought applicant emphasis added 136 hamersley submits central feature undertaking nothing commitment perform particular duty necessary word undertake used undertaking merely implied see example harman v secretary state home department 1983 1 ac 280 304 injunction term undertaking must strictly observed lade co pty ltd v black 2006 2 qd r 531 36 137 hamersley submits court treat mr brett said behalf ncc undertaking kenny j reflecting term permanent injunction honour stated proposed grant word undertaking equivalent injunction preventing ncc making recommendation regarding declaration hamersley rail track service designated minister statement made mr brett given lieu injunction absent statement injunction would granted mr brett put forward reason proposed injunction inappropriate necessary qualify assurance ncc would act accordingly stating example would particular period time situation changed materially 138 hamersley submission regard force indication kenny j would accept proffered behalf ncc reflects usual terminology employed court accepts undertaking party lieu injunction seethomson australian holding proprietary limited v trade practice commission 1981 148 clr 150at 164 139 given matter careful consideration concluded mr brett statement kenny j regarded amounting formal undertaking word used seem casually expressed spoken without attention formality assurance cannot properly understood constraining ncc forever entertaining application made different applicant declaration recommendation respect might become different service 140 construe mr brett statement manner hamersley contends would also contrary ncc statutory function duty pt iiia moreover word could scarcely form basis application ncc contempt court injunctive order must expressed unambiguous language person subjected injunction entirely clear conduct expected mcnair anderson associate pty ltd v hinch 141 importantly need emphasised kenny j fact contemplated granting injunction extended widely application court reasonable assume ncc respondent would sought dissuade honour fact none respondent made submission effect suggests view mr brett statement tantamount undertaking equivalent permanent injunction going beyond bound declaration actually made 142 contrary conclusion set mr brett word understood undertaking rather statement deference declaratory order foreshadowed question remains ncc undertaking indicated declaration made honour concerned specific service defined particular application ncc resolved controversy determined current fact undertaking surely intended operate broadly declaratory relief mr brett statement made response foreshadowed declaration foreshadowed permanent injunction statement ncc would act accordingly mean context accordance declaration proposed mean accordance injunction kind honour might put forward consideration 143 event term foreshadowed injunction employed expression rail track service context expression understood defined first declaration ultimately made 144 accept course assurance kind given mr brett might circumstance give rise estoppel inhalsbury law australia doctrine estoppel representation discussed 190 240 190 270 doctrine precludes party representation induced another party adopt accept state affair consequently act party detriment asserting right inconsistent state affair upon party acted 145 common law estoppel representation arises result word conduct reasonably likely understood representation fact mere expression opinion moreover circumstance must reasonable person would accept representation invitation act upon particular way must causally linked decision party made act upon party detriment see generallycommonwealth v verwayen 1990 170 clr 394 146 representation found estoppel must clear unambiguous seelegione v hately 1983 hca 11 1983 152 clr 406at 436 per mason deane jj andminister immigration ethnic affair v kurtovic see also case discussed footnote 10 11 190 245 ofhalsbury 147 several difficulty hamersley submission mr brett assurance give rise estoppel first mr brett statement scarcely expressed clear unambiguous language said response indication kenny j term injunction honour might prepared grant however nothing definite term injunction made entirely clear injunction kind would granted party given opportunity heard regarding term 148 next might thought representation embedded assurance involved promise future conduct statement existing state affair legione v hately walton store interstate ltd v maher 1988 hca 7 1988 164 clr 387at 398 per mason cj wilson j 415 per brennan j 459 per gaudron j andcommonwealth v verwayenat 499 500 per mchugh j course statement whether present intention exists may representation existing fact however hardly proper characterisation mr brett language 149 well recognised statement future conduct may ground equitable estoppel equity come aid party acted detriment basis assumed state affair party transaction contributed would unfair unjust however constraint upon use equitable estoppel applicant must prove assumed existence particular legal relationship respondent respondent induced assumption applicant acted abstained acting faith assumption respondent knew applicant action intended applicant act way applicant would suffer detriment assumption fulfilled seewaltons store interstate ltd v maher 150 effect order establish equitable estoppel must shown would unconscionable one party resile assumed state affair party relied 151 circumstance uncertain form permanent injunction might taken difficult see assurance given mr brett expressed must said casually informal term make unconscionable ncc go performing statutory duty must remembered hamersley represented experienced competent counsel time assurance given could sought clarification mr brett remark end day mr brett one thing mind m sloss something else unfortunate however test applied determining whether something said counsel gave rise undertaking must adopted construing judicial order test objective subjective one 152 applying objective test mr brett remark would context understood giving rise formal undertaking certainly one term hamersley contends follows reject submission ncc precluded mr brett assurance considering tpi application identity parties153 principal party proceeding far relief concerned namely hamersley ncc infirst hamersley iron however neither robe river hope down respondent proceeding involvement case 154 tpi person seeking ncc recommendation stand shoe previously worn robe river perhaps hope down well mean party earlier action relied creating re judicata proceeding identical might affect hamersley entitlement relief sought since tpi cannot conceivably estopped making application ncc suggestion case kenny j judgment operate rem undertaking given full court155 deal briefly separate submission advanced behalf ncc tpi say contrary primary finding estoppel based re judicata arise case hamersley undertaking full court earlier litigation prevents taking advantage estoppel 156 context recalled appeal kenny j judgment ncc hope down forever stayed withdrawal robe river application ncc occurred hamersley gave certain undertaking paragraph 4 undertaking set 34 reason judgment 157 reject contention ncc tpi undertaking given hamersley full court specifically linked application made pt iiia tpa hope down related corporation limited proceeding connection application regard hamersley undertook rely future upon issue estoppel re judicata undertaking wider application certainly application present proceeding conclusion158 reason set application must dismissed least one party indicated might wish heard relation cost normal course hamersley unsuccessful applicant proceeding would ordered pay cost respondent see reason depart course however party wish heard contrary allow period seven day filing submission submission filed court order applicant pay respondent cost taxed default agreement certify preceding one hundred fifty eight 158 numbered paragraph true copy reason judgment herein honourable justice weinberg associate dated 5 may 2008counsel applicant mr p w collinson sc mr h parmentersolicitors applicant allen arthur robinsoncounsel first respondent mr p j hank qc mr p r graysolicitor first respondent australian government solicitorcounsel second respondent mr n j bryan sc mr j f mcevoysolicitors second respondent dla phillips foxdate hearing 27 march 2008date judgment 5 may 2008annexure aannexure b

Pandaram, Shiva Lingam [2000] MRTA 4859 (21 August 2002).txt

pandaram shiva lingam 2000 mrta 4859 21 august 2002 last updated 18 february 2003 2002 mrta 4859catchwords review visa refusal subclass 806 remaining relativevisa applicant shiva lingam pandaramtribunal migration review tribunalpresiding member maritsa eftimioumrt file number n01 00309dept file number clf2000 18187date decision 21 august 2002at sydneydecision tribunal affirms decision review finding visa applicant entitled grant family residence class ao visa application review1 application review decision made delegate minister immigration multicultural affair delegate mr shiva lingam pandaram visa applicant national fiji born 16 april 1972 applied family residence class ao visa 26 october 1999 delegate decision refuse grant visa made 16 december 2000 jurisdiction standing2 mr shiva lingam pandaram visa applicant lodged application review tribunal 9 january 2001 decision reviewable tribunal application review properly made person standing apply review legislation policy3 themigration act 1958 act various regulation made act principally themigration regulation 1994 regulation provide different class visa criterion grant visa reaching decision tribunal bound act various regulation written direction issued minister section 499 act matter may subject departmental policy found publication theprocedures advice manual 3 pam3 themigration series instruction msis produced department immigration multicultural indigenous affair department tribunal required regard policy apply unless cogent reason departing policy 4 tribunal power affirm vary set aside decision refuse grant visa also power remit application visa department reconsideration remittal may accompanied direction visa applicant meet one criterion visa matter minister delegate consider remaining criterion review tribunal generally limited consideration whether visa applicant meet one essential criterion application remitted decision affirmed basis 5 criterion policy material immediately relevant review legislation item 1115 schedule 1 regulationspart 806of schedule 2 regulationsregulation 1 03 definition relative close relative settled regulation 1 15 definition remaining relative departmental policy procedure advice manual 3 regulation 1 03 interpretation remaining relativeprocedures advice manual 3 schedule 2 family visa 806interpretation remaining relativecases mima v hughes 1999 fca 325 1999 86 fcr 5676 tribunal generally regard regulation stood time visa application however subsequent amendment may apply circumstance 7 term remaining relative defined inregulation 1 15 tribunal generally regard regulation stood time visa application however subsequent amendment may apply circumstance change definition remaining relative introduced item 2109 statutory rule 1999 259 sr 259 1999 transitional provision set sr 259 1999 amended item 1101 statutory rule 259 2000 apply changed definition application preferential relative migrant visa class class ay made 1 november 1999 finally determined date however law force 1 november 1999 continues apply class ao visa application 8 term remaining relative therefore defined regulation 1 15 regulation 1 15 1 applicant visa remaining relative applicant relative brother sister parent ii step brother step sister step parent applicant b australian citizen ii australian permanent resident iii eligible new zealand citizen c usually resident australia unless applicant disqualified subregulation 2 2 applicant disqualified applicant spouse applicant usually resides country australia overseas near relative ii contact overseas near relative reasonable period preceding application b applicant spouse applicant together 3 overseas near relative c applicant child turned 18 ii adopted australian citizen australian permanent resident eligible new zealand citizen paragraph called adoptive parent overseas time application adoptive parent residing overseas period least 12 month 3 regulation overseas near relative mean person parent brother sister non dependent child b step parent step brother step sister non dependent step child applicant spouse applicant relative kind referred subregulation 1 9 definition remaining relative regulation 1 15 set several requirement must met visa applicant first requirement visa applicant must relative brother sister parent step brother step sister step parent australian citizen australian permanent resident eligible new zealand citizen second requirement relative usually resident australia third requirement visa applicant spouse overseas near relative visa applicant spouse live different country australia overseas near relative visa applicant spouse contact overseas near relative reasonable period preceding application visa applicant spouse together three overseas near relative 10 term overseas near relative defined subregulation 1 15 2 11 case subparagraph 1 15 2 regulation 1 15 particularly relevant visa applicant circumstance tribunal must determine country visa applicant usually resides whether visa applicant overseas near relative country overseas near relative usually resides whether visa applicant usually resides country australia different country overseas near relative resides whether visa applicant three overseas near relative 12 also relevant case definition australian permanent resident regulation 1 03 regulation permanent visa subsection 30 1 act evidence13 tribunal following document t1 mrt case file n01 00309 folio numbered 1 80 d1 department file clf2000 18187 folio numbered 1 6814 visa applicant entered australia 3 month subclass 676 visitor visa 8 september 1996 departed 28 september 1996 11 september 1998 visa applicant granted another subclass 676 visa visa applicant entered australia visa 5 september 1999 visa valid 5 december 1999 visa applicant since held bridging visa granted basis application visa subject review departmental movement record show visa applicant travelled australia 5 november 1999 returned 24 january 2000 15 visa applicant claim remaining relative sister m laleen nathan nominator nominated visa applicant grant visa 16 delegate stated visa granted basis visa applicant satisfy criterion category available family residence class visa applicant stated lodging application review circumstance changed result mother lodging application permanent residency ground aged parent stated mother ill required support pay bill visa applicant also stated contact sister usa since 1997 17 visa applicant sent letter 14 may 2002 inviting visa applicant provide comment information tribunal considered would reason part reason affirming decision review essentially information mother usual country residence fiji review applicant provided comment 24 may 2002 tribunal taken consideration making decision 18 hearing held 30 july 2002 visa applicant gave evidence also present hearing visa applicant mother sister 19 hearing visa applicant gave evidence summarised follows visa applicant citizen fiji visa applicant mother citizen fiji mother australia since 5 september 1999 visa applicant mother entered australia visitor visa 5 september 2000 visa applicant mother visitor visa expired 6 october 2000 applied permanent residence australia basis aged parent visa applicant mother application yet finalised department currently holder bridging c visa visa applicant two sister australia one sister citizen sister australian permanent resident visa applicant also sister citizen united state america visa applicant sibling travelling australia visa applicant resided fiji mother visa applicant mother heart condition scheduled heart bypass surgery near future visa applicant working providing financial support mother well paying medical bill member family able provide support visa applicant mother unable return fiji required surgery available fiji findings20 tribunal finding based information contained tribunal file department file information obtained hearing 21 time visa application lodged family residence class ao contained number subclass subclass respect claim advanced subclass 806 respect remaining relative ground evidence suggest visa applicant meet key criterion subclass ground 22 time application visa applicant held substantive visa subclass 676 tribunal find visa applicant satisfies clause 806 212 23 criterion satisfied time application grant subclass 806 visa clause 806 213 provides part visa applicant remaining relative another person validly nominated visa applicant grant visa clause 806 221 provides visa applicant must continue satisfy criterion clause 806 213 time decision 24 time application visa applicant nominated sister m laleen nathan visa applicant continues nominated m nathan time decision tribunal satisfied nominator settled australian citizen usually resident australia 25 tribunal find visa applicant satisfies first part remaining relative definition subregulation 1 15 1 relative sister australia citizen usually resident australia time application present 26 tribunal must consider whether primary visa applicant effect disqualified remaining relative subregulation 1 15 2 27 firstly tribunal must determine visa applicant usually resides tribunal satisfied visa applicant usually resides fiji despite physical presence australia 28 tribunal must determine whether either time application time decision visa applicant overseas near relative usually reside fiji 29 tribunal satisfied visa applicant two overseas near relative sister shalini kumar usually resident united state america mother lachimi lingam usually resident fiji 30 departmental movement record confirm visa applicant mother m lachmi lingam national fiji arrived australia 3 month subclass 676 visa 5 september 1999 visa valid 5 december 1999 granted subclass 686 visa extended status visitor 5 september 2000 since 6 october 2000 visa applicant mother bridging c visa according information provided visa applicant mother applied permanent residency ground aged parent 31 resides defined themigration actor regulation therefore tribunal must regard relevant policy consideration judicial comment 32 person usually resides question fact tribunal must reach regard information fundamental proposition common law every person domicile least domicile origin whether individual usually resides one country largely matter fact degree gauthiez v minister immigration multicultural affair 1994 53 fcr 512 33 policy state overseas near relative australia hold permanent visa taken reside australia rather overseas near relative taken reside country home country immediately entering australia however depending fact case would time person australia temporary visa may found usually resident australia tribunal must willing depart policy cogent reason sore drake minister immigration ethnic affair 1979 aata 179 2 ald 634 34 tribunal satisfied time application visa applicant mother australia visitor visa tribunal find time application visa applicant mother holder visitor visa granted basis intended genuine visit visa applicant mother applied visitor visa 5 december 1999 granted basis information gave intended genuine visit australia tribunal find time application visa applicant mother usually resident fiji cogent reason departing policy case 35 tribunal find time application visa applicant overseas near relative usually resident country visa applicant visa applicant therefore unable satisfy paragraph 1 15 1 c 36 visa applicant unable satisfy paragraph 1 15 1 c remaining relative remaining relative visa applicant satisfy clause 806 213 37 visa applicant satisfy clause 806 213 unable met clause 806 221 38 accordingly application must fail decision39 tribunal affirms decision review finding visa applicant entitled grant family residence class ao visa

Keswick Developments Pty Ltd v. Keswick Island Pty Ltd & Ors [2009] QSC 59 (25 March 2009).txt

keswick development pty ltd v keswick island pty ltd or 2009 qsc 59 25 march 2009 last updated 8 april 2009supreme court queenslandcitation keswick development pty ltd v keswick island pty ltd or 2009 qsc 59parties keswick development pty ltdapplicantvkeswick island pty ltd acn 009 998 841first respondentand othersfile mackay registry 20 2009division trial divisionproceeding hearingoriginating court supreme court mackaydelivered 25 march 2009delivered mackayhearing date 16 february 2009judge mcmeekin jorder respondent pay applicant cost relation application including applicant cost brisbane counsel indemnity basis catchword procedure cost departing general rule order cost indemnity basiscolgate palmolive company v cussons pty ltd 1993 fca 536 1993 46 fcr 225quinn village pty ltd v mulherin 2006 qca 500fountain selected meat sale pty ltd v international produce merchant pty ltd 1988 fca 202 1988 81 alr 397di carlo v dubois 2002 qca 225rosniak v government insurance office 1997 41 nswlr 608counsel mr c c wilson applicantno appearance respondentsolicitors kelly legal solicitor applicantno appearance respondent 1 16 february 2009 application came effectively decree various respondent perform obligation contract entered applicant made order applicant sought time hearing largely uncontested reserved question cost directed party file serve submission 4 00pm 24 february 2009 applicant filed submission seeking order cost indemnity basis respondent filed submission 2 letter tendered court day hearing respondent solicitor conceded order cost made standard basis argument advanced would appropriate 3 well recognised order cost indemnity basis made unless special unusual circumstance 1 di carlo v dubois 2 court appeal cautioned award cost indemnity basis seen readily available particular party order sought seen carry responsibility state affair calling cost order without fact analogous mentioned colgate considered decision 3 4 reference colgate reference well known decision sheppard j colgate palmolive company v cussons pty ltd 4 sheppard j instanced several example case indemnity cost ordered included misconduct caused loss time court party continuing proceeding ulterior motive wilful disregard known fact clearly established law imprudent refusal offer compromise 5 rosniak v government insurance office 5 mason p clarke ja agreed said must evidence unreasonable conduct making award indemnity cost 6 applicant point following factor justifying order

Janice Ann Bawden v Mark Andrew Quirk [1992] ACTSC 41 (30 April 1992).txt

janice ann bawden v mark andrew quirk 1992 actsc 41 30 april 1992 supreme court actjanice ann bawden v mark andrew quirkno sc 1781 1988costscourtin supreme court australian capital territorymaster hogan 1 catchwordscosts discretion calderbank letter plaintiff recovering offer indemnity cost calderbank v calderbank 1975 3 er 333cutts v head 1984 1 ch 290messiter v hutchinson 1978 10 nswlr 525hearingcanberra30 4 1992orderthe defendant pay plaintiff cost action party party basis including 10 september 1991 thereafter indemnity basis decisionthis ruling question relating cost action damage personal injury hearing action took place 1 4 november 1991 28 january 1992 directed entry judgment plaintiff sum 375 192 00 2 sum made follows general damage 30 000 00interest 6 000 00out pocket expense 6 892 00fox v wood 21 300 00past loss income 115 000 00interest loss ofincome 26 000 00future loss income 165 000 00cost domestic as 5 000 00total 375 000 003 may noted appeal lodged defendant assessment clear decision full court court handed since date decision amount awarded interest general damage excessive probably reduced 3 000 deal matter therefore basis proper sum awarded 372 000 4 liability admitted contested trial proceeded substantially assessment 5 plaintiff suffered whiplash injury disc disruption principal area contention effect accident upon capacity earn income past future 6 substantial divergence opinion medical evidence fact relevant issue 7 question cost counsel plaintiff tendered letter written 6 september 1991 solicitor defendant headed without prejudice except cost read refer adjourned hearing matter wehave received instruction client wouldaccept settlement claim verdict sum 350 000 00 plus cost 8 offer basis negotiation rather sum accept settlement without matter proceeding full hearing 9 event court award sum close exceeding amount offer seeking order indemnity cost conduct matter 10 letter dated 10 september 1991 defendant solicitor responded would grateful would explain u whatyou mean indemnity cost conduct thismatter 11 evidence offer settlement either side 12 counsel plaintiff sought order defendant pay plaintiff cost party party basis 10 september 1991 thereafter indemnity basis 13 rule court contain order 26 rule usual type relating payment court defendant contain rule relating offer compromise plaintiff contained part 22 part 52 r17 rule supreme court new south wale 14 counsel defendant submitted absence rule special order cost made alternatively submitted order usual one made would necessary find conduct defendant refusing accept plaintiff offer obviously unreasonable defendant ordered pay indemnity cost 15 section 15 australian capital territorysupreme court act 1933and order 65 r1 rule make clear cost proceeding court discretion court judge discussed history policy behind rule relating payment court titan v babic supreme court australian capital territory master hogan 30 may 1991 unreported since express rule relating exercise discretion circumstance case limitation upon exercise must judicial 16 think relevant exercise judicial discretion acknowledge may considerable difference cost plaintiff may actually incur litigation awarded successful plaintiff party party basis cost indemnity basis may substantially greater awarded party party basis 17 regard question posed defendant solicitor letter dated 10 september relevant quite sure know well member profession meant cost indemnity basis indeed argument understand counsel defendant attempting persuade ignorance 18 fox j pointed windbank v windbank 1970 4 actr 14 purpose rule relating payment defendant encourage party avoid litigation save cost putting plaintiff serious risk cost recover amount paid necessary express rule sort consideration may become relevant question cost 19 even though without prejudice letter actually written case relied upon calderbank v calderbank 1975 3 er 333 cairn l j made clear could circumstance party willing make compromise could put forward way make offer relevant question cost calderbank crucial offer made affidavit wife 20 cutts v head 1984 1 ch 291the court appeal held letter headed without prejudice without prejudice save cost could taken account question cost 312 313 cutts v head oliver l j administered caution calderbank letter used substitute payment court payment available caution emphasis fact may appropriate procedure payment available 21 messiter v hutchinson 1987 10 nswlr 525 rogers j held letter offer taken account considering weight given letter court pay regard relevant circumstance including reason payment court made time letter offer received case concerned offer defendant think relevant distinction 22 liability bona fide issue plaintiff prepared settle sanction order indemnity cost going awarded party party cost event 23 case therefore hold relevant exercise discretion cost plaintiff offered accept verdict 350 000 date nearly two month date fixed hearing 24 doubt defendant adviser ground believing one view medical evidence might well recover substantially le sum extent defendant could said acting unreasonably sense requires punished practical purpose date non acceptance offer defendant notice risk cost litigating question whether plaintiff entitled le 350 000 25 plaintiff required incur extra expense pursuing litigation finality reason put forward demonstrate ought required risk expressed willing accept settlement sum le amount eventually awarded 26 therefore propose make special order sought order defendant pay plaintiff cost action party party basis including 10 september 1991 indemnity basis thereafter

R v VHW [2019] QChC 26 (19 September 2019).txt

r v vhw 2019 qchc 26 19 september 2019 last updated 14 october 2019childrens court queenslandcitation r v vhw 2019 qchc 26parties rvvhw applicant file 281 2019division childrens courtproceeding sentence revieworiginating court townsville childrens courtdelivered 19 september 2019 deliveredex tempore delivered brisbane childrens courthearing date 19 september 2019judge dearden dcjorder 1 application granted 2 set aside conviction recorded respect following offence unlawful use motor vehicle 11 05 2019 b stealing 11 05 2019 c posse property suspected used connection commission drug offence 29 05 2019 3 otherwise affirm sentence imposed 12 june 2019 townsville childrens court catchword criminal law sentence sentencing juvenile application sentence review applicant sentenced six month detention conviction recorded three offence applicant significant criminal history applicant demonstrated step taken towards rehabilitation whether sentence excessive circumstanceslegislation youth justice act1992

South Brisbane Hospitals Board v Vernon [1996] QCA 374 (24 September 1996).txt

south brisbane hospital board v vernon 1996 qca 374 24 september 1996 last updated 13 april 2016 1996 qca 374court appealmacrossan cjpincus jafryberg jappeal 256 1995south brisbane hospital board appellant defendant andbruce george matthew vernon respondent plaintiff brisbane date 24 09 96judgmentthe chief justice shall ask mr justice pincus deliver reason first pincus ja 10 october 1989 plaint filed district court brisbane behalf plaintiff respondent claiming damage defendant appellant basis claim respondent material time employed appellant nurse injured back 10 october 1986 allegedly negligence appellant followed course proceeding seem require analysis 31 october 1994 number order made one issue whether respondent cause action pleaded proposed amended plaint preserved virtue operation section 29 limitation action act 1974 heard determined separate issue chamber judge judge forno qc accordingly determined issue favour respondent honour held cause action pleaded proposed amended plaint might otherwise limited limitation action act preserved virtue section 29 act proposed amended plaint complained incident occurred 16 october 1985 22 october 1986 12 march 1987 noted three year from16 october 1985 first date mentioned proposed amended plaint elapsed proceeding begun would seem clear amendment allege cause action arising date would ordinarily statute barred question arises effect statute amendment proposed possible application 32 r 1 rule supreme court seejiminez v jayform contracting pty ltd 1992 qca 59 1993 1 qd r 610 unnecessary set full term ofsection 29of thelimitation action act 1974 effect far relevant date accrual cause action person whose benefit accrued disability action may brought within six year date person ceased disability died undersection 5 2 act purpose act person shall taken disability person infant unsound mind convict conviction undergoing sentence imprisonment present case admitted right appeal since judgment judge forno final one relevant sense therefore leave appeal necessary section 118 district court act cannot granted unless important question law orjustice involved see section 118 3 fact notice appeal filed within time document defendant referred appellant used expression filed application leave notice appeal mention necessity leave matter u treated application leave case put forward leave important question law involved precisely question clearly appear generally meaning expression unsound mind suggestion authority precisely define primary judge referring toking v coupland 1981 qd r 121 accepted view psychiatrist dr peter mulholland summarised doctor view respondent significantly disordered personality asa result ongoing particularly severe form attentiondeficit hyper activity disorder judge said disorder plaintiff comprises significant disability term dealing everyday issue life would particularly significant disability dealing complex legal matter particular trying organise regarding date detail event major impact life inking v coupland macrossan j honour referring authority remarked relevant expression may accepted meaning unsoundness mind gathered considering place relevant phrase statute function intended statute honour referred various example relevant aspect unsoundness given inkirby v leather 1965 2 qb 367at 384 went seem aspect broader concept mental illness causing incapacity manage affair relation accident manage manner reasonable man would achieve take amount unsoundness mind statute brings question 123 reason doubt correctness proposition relevant phrase meaning must considered context statute occurs regard function fulfils behalf applicant sought contend otherwise indeed nothing said inking v couplandis challenged however elaborate judicial explanation meaning expression context concerned question whether unsoundness mind shown exist particular evidence must always one degree read evidence present case incline view show particularly convincing basis conclusion primary judge arrived appear reason think primary judge misunderstood test statute lay made legal error case set fact assessed conformity statutory test sometimes evoke losing side suggestion important question law arises really issue essence factual conclusion detect obscurity expression unsoundness mind statutory context give rise important indeed definable question law would dismiss application cost notice appeal struck chief justice agree fryberg j also agree chief justice order court

Migration Legislation Amendment Bill (Parenting and Other Measures) Bill 2000 [2000] AUSStaCSBRp 36 (28 June 2000).txt

migration legislation amendment bill parenting measure bill 2000 2000 ausstacsbrp 36 28 june 2000 migration legislation amendment bill parenting measure bill 2000commencementsubclause 2 6 schedule 3migration legislation amendment bill parenting measure bill 2000introductionthe committee dealt bill inalert digest 8 2000 made various comment minister immigration multicultural affair responded comment letter dated 27 june 2000 copy letter attached report extract thealert digestand relevant part minister response discussed extract alert digest 8 2000this bill introduced house representative 7 june 2000 minister immigration multicultural affair portfolio responsibility immigration multicultural affair bill introduced migration visa application charge amendment bill 2000 bill proposes amend thehealth insurance act 1973and themigration act 1958to enable increase parent migration minimising cost restricting access medicare service schedule 1 proposes amend definition australian resident thehealth insurance act 1973to remove medicare entitlement certain visa applicant processing application ensure temporary protection visa holder entitled medicare benefit schedule 2 proposes technical amendment note tosubsection 45b 1 themigration act 1958to clarify visa application charge limit determined themigration visa application charge act 1997 schedule 3 proposes amendment themigration regulation 1994to replace existing entry option parent new visa class increase assurance support bond period effect relation applicant new parent visa class offset health cost parent entry requiring applicant new visa class arrange suitable approved private health insurance cover 10 year pay one 25 000 health service charge per person commencementsubclause 2 6 schedule 3subclause 2 5 bill provides subject subclauses 2 6 7 schedule 3 commence proclamation assent themigration visa application charge amendment act 2000 subclause 2 7 provides themigration visa application charge amendment act 2000has received assent within 6 month assent bill schedule 3 repealed subclause 2 6 provides subject subclause 2 7 schedule 3 commence subclause 2 5 within period 7 month date assent bill schedule 3 commences first day end period departure usual 6 month period referred indrafting instruction 2 1989 issued office parliamentary counsel drafting instruction state explanation provided whenever period longer 6 month assent chosen case bill explanatory memorandum simply note effect subclauses 2 5 6 7 ensure schedule 3 act commence themigration visa application charge amendment act 2000 given abbreviated explanation committeeseeks minister adviceas reason extended time within bill might commence pending minister advice committee draw senator attention provision may considered inappropriately delegate legislative power breach principle 1 iv committee term reference relevant extract response ministerthe committee sought advice question subclause 2 6 bill refers period 7 month whendrafting instruction 2 1989refers 6 month period reason departure usual 6 month period allow early passage bill parliament government target implementation date 1 january 2001 measure contained bill may 6 month date passage bill passed winter sitting government considers desirable actual visa grant new scheme contained bill commence january 2001 enable parent visa applicant reunited sponsor australia early possible legislative scheme need place november year take account likely visa processing time trust comment assistance committee committee thanks minister response

Taylor v Autohome Australia Pty Ltd [2012] QCATA 189 (3 October 2012).txt

taylor v autohome australia pty ltd 2012 qcata 189 3 october 2012 last updated 15 october 2012citation taylor v autohome australia pty ltd 2012 qcata 189parties henry michael taylor applicant appellant vautohome australia pty ltd respondent application number apl211 12matter type appealshearing date papersheard brisbanedecision richard oliver senior memberdelivered 3 october 2012delivered brisbaneorders made 1 leave appeal granted 2 tribunal decision 27 june 2012 set aside 3 respondent must pay queensland civil administrative tribunal trust account sum 4 850 00 28 october 2012 4 upon payment sum qcat trust account applicant must return respondent expense reputable carrier fibreglass bodied rooftop capsule 16 november 2012 5 respondent must inform qcat received capsule qcat pay applicant 4 850 00 catchword sale good good defective whether damage result fair wear tear defective good refund sought return good whether purchaser pay cost return good monies paid trust account pending return goodsqueensland civil administrative tribunal act2009

JA St Hill & N.M.D Jack v. Kingborough Council & A d'Arville [1995] TASRMPAT 45 (14 March 1995).txt

ja st hill n jack v kingborough council arville 1995 tasrmpat 45 14 march 1995 last updated 30 july 2010ja st hill n jack v kingborough council arville 1995 tasrmpat 045273 94 p j 45 95kingborough council first floor extension relaxation side boundary setbackbetweenja st hill n jack appellantsandkingborough council arville respondentsthis appeal pursuant 61 4 land use planning approval act 1993against decision kingborough council granting approval first floor extension dwelling 6 rollins avenue kingston beach subject condition restriction mr armstrong counsel appeared appellant called evidence mr j st hill mr b mcneill mr mackey appeared council gave evidence mr g bradfield counsel appeared called evidence m arville also called evidence mr lagenwaard decisionit obvious party including tribunal m arville made considerable effort firstly attempting achieve design view minimized adverse impact streetscape neighbour secondly preparing presentation tribunal fully lucidly explained proposed supported evidence numerous photograph model showed nature proposed extension relationship surrounding property explained using photograph property wanted avoid creating box like protrusion top house wanted design extension sympathetic character neighbourhood general roof profile existing building particular want obtrusive design present proposal resulted consideration number alternative design prepared consultation mr lagenwaard designer extension proposed clad vertical boarding match existing consistent dwelling neighbourhood trim roof shape colour matched original house would add approximately 3 7 square floor space providing one extra bedroom en suite view balcony help prevent room looking like box top height extension kept low possible lowering ceiling room beneath extension thus total height ridgeline 5 9 metre 1 5 metre higher existing house 0 7 metre higher highest roof street m arville claimed property could adversely affected loss sunshine daylight 8 rollins avenue owned mr e foster mr foster objection extension m arville view two objector close enough affected stated front wall proposed extension would 17 metre rollins avenue fenceline mr jack property privacy could major issue distance case replanting taller tree shrub road side nature strip would help prevent loss privacy problem far mr st hill property concerned stated taken consideration privacy need designing extension would prepared stained glass window instead plain glass window bedroom side extension would prevent possibility overlooking mr st hill garden however could afford straight away stated way achieve additional floor space block mr mackey council stated proposed extension entailed relaxation side boundary setback requirement planning scheme result application advertised period 14 day attracted two representation two representation subject appeal objection owner 8 rollins avenue property involved side boundary setback council agreed property would adversely affected council taken account provision clause 7 4 1 7 4 2 planning scheme specifically relate kingston beach conservation area require new development sympathetic historic character built environment relate traditional character area regard design appearance scale roof shape material colour finish council disagreed appellant matter believed design extension fulfilled intent kingston beach conservation area mr mackey stated roofline low match existing term shape external finish colour extension also match existing building block small leaf m arville alternative extend upwards height proposed extension 5 9 metre well maximum height 8 00 metre set planning scheme clause 8 1 2 b addition proposal required relaxation side boundary setback requirement would permitted p use scheme third party appeal right would involved council agreed mr jack yard area 15 balmoral road would overlooked proposed balcony however held view 17 metre separation jack boundary fence front wall extension adequate provide reasonable degree privacy also noted mr jack established tree shrub screen alongside fence screening could provide protection wanted mr mackey described proposed extension relatively small one would impinge front boundary setback scheme adversely affect streetscape consistent provision clause 3 9 2 scheme proposed extension minimal impact surroundings term size design overall roof height kept low possible reducing ceiling height part existing house use vertical boarding wall low angle roofline respect character house avenue one carparking space available use site needed street parking available parking bay opposite side rollins avenue width carriageway avenue 5 85 metre 6 95 metre parking bay wider required council law council engineer consider street carparking capacity rollins avenue adequate proposed extension located 3 3 metre mr st hill boundary 17 metre mr jack boundary council opinion sunshine daylight privacy requirement breached proposal consistent provision clause 5 3 3 c scheme nevertheless regard privacy issue council acknowledged window wall facing mr st hill property overlooking possible garden property however since intended use bedroom overlooking would result major intrusion case upper floor bedroom window constitute sufficient reason refusal ground privacy 17 metre separation mr jack boundary front wall proposed extension considered council quite acceptable suburban situation mr mackey put view proposed extension would keeping character kingston beach conservation area modest extension constitute overdevelopment site create inappropriate element mr st hill stated changed opinion proposal since submission council november 1994 time expressed view house rollins avenue built small block basically space around proposed development would set undesirable precedent owner including develop property way would keeping kingston beach area mr mcneill described former holiday shack kingston beach generally best collection vertical board bungalow tasmania significance heritage point view mainly social believed house locality allowed second storey stated site substandard size proposed extension clearly overdevelopment site would generate additional parking requirement detriment character area believed site street overdeveloped existing house 12 square small proposed extension badly designed would create undesirable precedent similar addition house street recognized refusal would harsh decision suggested alternative way achieving additional bedroom way opinion would keeping character street support opinion quoted extensively provision kingborough planning scheme made comparison scheme also gave short dissertation principle urban design quoted draft tasmania code residential development 1994 also listed number book used reference guide assist urban design submitted photograph house era located various part australia hobart kingston beach presented criticism design evidence mr mackey posed two question 1 relaxation side boundary setback adverse effect 2 design structure accordance intent provision kingston beach conservation area mr mcneill evidence similarly listed two main aspect proposal general planning development control consideration application special area instance kingston beach conservation area urban design consideration matter streetscape historic aspect architecture character design appearance scale roof shape material colour finish summary basic disagreement two witness mr mackey stated design acceptable consistent planning scheme requirement kingston beach conservation area mr mcneill stated proposed extension badly designed conflict scheme believed extension house rollins avenue allowed tribunal agrees party prime consideration must provision planning scheme particular tribunal agrees mr mcneill provision referred evidence important consideration relevant consideration case however tribunal disagrees mr mcneill conclusion objection set clause 5 2 lay duty council hence tribunal regarding control guidance development protection historic feature site mr mcneill state specific amenity requirement clause 5 3 3 c requirement mandatory however also qualitative open differing interpretation phrase adequately respect provide reasonable amount regard tribunal persuaded evidence m arville mr mackey design extension adequately respect built surroundings tribunal also persuaded design extension provide reasonable amount sunshine daylight privacy adjoining property mr mcneill correct claim provision special area e kingston beach conservation area override specific zone requirement clause 5 3 7 b limit extent overriding set b every casewhere special area provision inconsistent requirement zonethe special area provision shall take precedence underlining regard clause 7 4 1 particularly 7 4 2 relevant provide quantitative requirement provide qualitative restriction open interpretation pursuant clause 7 4 1 new development must sympathetic historic character clause 7 4 2 requires development relate traditional character capable varying degree interpretation neither clause requires slavish reproduction copying present building nowhere kingston beach special area provision lay quantitative requirement inconsistent requirement residential zone thus inconsistency referred clause 5 3 7 b limited judgment example whether proposed extension relate traditional character sympathetic historic character respect one side boundary setback proposed extension meet standard laid scheme rear wall 3 3 metre boundary requirement 2 0 metre front wall 5 0 metre required street boundary one side wall 5 0 metre boundary requirement 2 0 metre side wall location triggered appeal le 2 0 metre length lie 1 0 metre boundary requirement 2 0 metre addition 4 5 metre long balcony also intrudes 1 0 metre setback requirement height proposed extension 5 9 metre 2 1 metre maximum height permitted scheme mr mcneill describes rollins avenue virtually lane state lack street carparking already impacting historic streetscape state council also exercised discretion requiring provision two carparking space site laid scheme stated proposed extension would create additional parking demand explaining adolescent phase family four bedroom house could well 3 4 car tribunal disagrees proposition proposed extension add carparking problem rollins avenue lane normally accepted sense word respect tribunal accepts advice council engineer street wider required law carparking capacity adequate insistence provision street carparking would inevitably destroy character mr mcneill seek preserve kingston beach conservation area concerned planning scheme provides standard sunlighting daylighting privacy proposal assessed absence standard tribunal must make judgement reasonable circumstance respect tribunal accepts agrees evidence m arville mr mackey proposed extension modest nature entailing one extra bedroom low profile height roof line reflect character existing development constructed material colour finish match existing structure keeping tradition set existing development vicinity affect sunlight daylight available appellant property affect significant degree privacy appellant beyond expected suburban location intensify use property constitute overdevelopment increase demand carparking inspecting site surroundings taking account evidence tribunal concludes design proposed extension adequately respect built surroundings relate traditional character area therefore consistent intent provision planning scheme kingston beach area course hearing m arville stated prepared use stained glass new window would overlook mr st hill garden respect tribunal noted inspection window neighbouring house also looked mr st hill garden obscured tribunal belief order avoid possibility overlooking proposed bedroom window question glazed obscured glass whether lead lighted therefore decision tribunal appeal dismissed decision kingborough council varied addition following permit condition 3 bedroom window rear wall extension facing property 9 balmoral road kingston beach shall glazed obscured glass satisfaction manager development service tribunal entertain application submission support application order cost appeal made tribunal writing within next seven day requested tribunal reconvene hear evidence respect matter bearing order cost absence application order cost order tribunal party bear cost dated 14th day march 1995jj caulfieldk tylerpresiding member

1105856 [2011] RRTA 931 (1 November 2011).txt

1105856 2011 rrta 931 1 november 2011 last updated 21 november 20111105856 2011 rrta 931 1 november 2011 decision recordrrt case number 1105856diac reference clf2011 42924country reference china prc tribunal member andrew mullindate 1 november 2011place decision sydneydecision tribunal affirms decision grant applicant protection class xa visa statement decision reasonsapplication reviewthis application review decision made delegate minister immigration citizenship refuse grant applicant protection class xa visa unders 65of themigration act 1958 act applicant claim citizen people republic china first second named applicant claim defacto relationship claim parent third named applicant first second named applicant arrived australia respectively date deleted unders 431 2 themigration act 1958as information may identify applicant 2007 student subclass tu571 visa third named applicant born australia month year deleted 431 2 applicant applied department immigration citizenship visa march 2011 delegate decided refuse grant visa june 2011 notified applicant decision delegate refused visa basis first named applicant person australia protection obligation refugee convention applicant applied tribunal june 2011 review delegate decision tribunal find delegate decision rrt reviewable decision unders 411 1 c act tribunal find applicant made valid application review unders 412of act relevant lawunders 65 1 visa may granted decision maker satisfied prescribed criterion visa satisfied general relevant criterion grant protection visa force visa application lodged although statutory qualification enacted since may also relevant section 36 2 act provides criterion protection visa applicant visa non citizen australia minister satisfied australia protection obligation 1951 convention relating status refugee amended 1967 protocol relating status refugee together refugee convention convention section 36 2 b provides alternative criterion applicant non citizen australia member family unit non citizen australia protection obligation convention ii hold protection visa section 5 1 act provides one person member family unit another either member family unit member family unit third person section 5 1 also provides member family unit person meaning given themigration regulation 1994 regulation purpose definition criterion grant protection class xa visa set inpart 866of schedule 2 regulation definition refugee australia party refugee convention generally speaking protection obligation people refugee defined article 1 convention article 1a 2 relevantly defines refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return high court considered definition number case notablychan yee kin v miea 1989 169 clr 379 applicant v miea 1997 190 clr 225 miea v guo 1997 191 clr 559 chen shi hai v mima 2000 hca 19 2000 201 clr 293 mima v haji ibrahim 2000 hca 55 2000 204 clr 1 mima v khawar 2002 210 clr 1 mima v respondent s152 2003 2004 222clr1 html class autolink_findacts 222 clr 1

O.P. Industries Pty Ltd [2022] FWCA 3756 (26 October 2022).txt

p industry pty ltd 2022 fwca 3756 26 october 2022 last updated 26 october 2022 2022 fwca 3756fair work commissiondecisionfair work act 2009s 185 enterprise agreemento p industry pty ltd ag2022 4377 p industry pty ltd plumbing mechanical serviceson site enterprise agreement 2022plumbing industrycommissioner plattadelaide 26 october 2022application approval p industry pty ltd plumbing mechanical service site enterprise agreement 2022 1 application made approval enterprise agreement known theo p industry pty ltd plumbing mechanical service site enterprise agreement 2022 agreement pursuant tos 185of thefair work act 2009 act p industry pty ltd applicant agreement single enterprise agreement 2 matter allocated chamber 25 october 2022 determined paper 3 applicant submitted undertaking required form 26 october 2022 undertaking deal following topic definition shift worker purpose national employment standard ne company make deduction inconsistent ne orsections 324 326of act company amended table labelled registered plumber contained appendix agreement amended table seen undertaking attached agreement 4 copy undertaking provided bargaining representative sought view accordance withs 190 4 act bargaining representative object undertaking 5 undertaking appears meet requirement ofs 190 3 act accepted result undertaking taken term agreement 6 communication electrical electronic energy information postal plumbing allied service union australia cepu bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 act note agreement cover organisation 7 satisfied requirement ofss 186 187 188and190of act relevant application approval met 8 agreement approved accordance withs 54of act operate 7 day date approval agreement nominal expiry date 31 october 2025 commissionerprinted authority commonwealth government printer ae517954pr747248

N97_15216 [1999] RRTA 1520 (31 May 1999).txt

n97 15216 1999 rrta 1520 31 may 1999 refugee review tribunaldecision reason decisionrrt reference n97 15216n97 15216n97 15216country reference china prc china prc china prc tribunal member roque raymundodate decision 31 may 1999place sydneydecision tribunal affirms decision grant protection visa catchword effective protection grant australian visa class uh 850backgroundthe applicant citizen china prc arrived australia 1990 4 october 19904 october 19904 october 1990 applicant applied department immigration ethnic affair refugee status themigration act 1958 act 1 september 1994 application deemed application protection visa migration reform act 1992s 39 30 july 199230 july 199230 july 1992 delegate minister immigration refused grant protection visa 26 august 199226 august 199226 august 1992 applicant applied refugee status review committee review decision department record indicate applicant granted australian visa class uh subclass 850 resolution status temporary appears visa granted 1999 subclass 850 temporary visa introduced june 1997 together permanent visa class bl subclass 851 resolve status certain group people australia humanitarian arrangement remained australia time status unresolved subclass 850 visa grant temporary residence multiple return right work right access medicare opportunity sponsor existing spouse dependent child remains effect decision made permanent residency subclass 851 visa granted subclass 850 visa holder lived australia total 10 year provided continues meet health character requirement subclass 851 visa allows holder remain australia indefinitely travel enter australia 5 year date grant holder want travel enter australia apply return residence visa permit entry permanent resident australia apply australian citizenship generally people apply grant australian citizenship present australia permanent resident total two year previous five year including twelve month two year immediately apply seemigration acts 29 30 31 migration regulationsrr 2 01 2 02 2 03 schedule 1 item 1127a 1216a schedule 2 part 850 851 sr 1997 279 accompanying explanatory statement department procedure advice manual 3 fact sheet 35 36 issued department 17 october 1997 andaustralian citizenship act 1948s 13 7 may 1999 tribunal wrote applicant advising considered paper relating application unable make favourable decision information alone applicant advised issue hishishis case hehehe effective protection australia virtue status australia appeared could granted protection visa circumstance applicant asked tell tribunal whether wanted withdraw application protection visa applicant advised want withdraw entitled give oral evidence support application asked tell tribunal 31 may 1999 whether wished applicant advised respond date would assumed wish come hearing decision could made without notice letter sent applicant last known address response received close business 31 may 1999 circumstance tribunal satisfied tribunal discharged obligation provide applicant opportunity give oral evidence applicant effectively declined opportunity matter therefore determined evidence tribunal evidence comprises tribunal file relating application relevant record obtained department applicant legislationa criterion protection visa time decision decision maker satisfied applicant person australia protection obligation 1951 convention relating status refugee amended 1967 protocol relating status refugee s 5 1 36 2 act australia party refugee convention refugee protocol generally speaking protection obligation people refugee defined however australia protection obligation refugee convention protocol arise person effective protection third country 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 minister immigration ethnic affair 1989 hca 62 1989 169 clr 379 applicant anor v minister immigration ethnic affair anor 1997 190 clr 225 andminister immigration ethnic affair v guo anor 1997 144 alr 567 inguo case court observed convention definition contains four key element first applicant must outside country second applicant must fear persecution third reason persecution must found singling one convention reason race religion nationality membership particular social group political opinion fourth applicant fear persecution convention reason must well founded fear person well founded fear persecution convention genuine fear founded upon real chance persecution convention stipulated reason addition applicant must unable unwilling fear avail protection country whether applicant person australia protection obligation assessed upon fact exist decision made requires consideration matter relation reasonably foreseeable future effective protection safe third country principle effective protection third country established full court federal court inminister immigration multicultural affair v thiyagarajah 1998 151 alr 685and applied inkarthigesu rajendran v minister immigration multicultural affair unreported federal court australia mansfield j 4 may 1998 upheld full court inkarthigesu rajendran v minister immigration multicultural affair unreported federal court australia von doussa loughlin finn jj 4 september 1998 andminister immigration multicultural affair v thiagarajah gnanapiragasam or unreported federal court australia weinberg j 25 september 1998 broadly speaking australia protection obligation person accorded effective protection third country effective protection context mean protection effectively ensure breach article 33 refugee convention person happens refugee article 33 principal obligation imposed refugee convention prohibits return refugee frontier territory life freedom would threatened one five convention reason return applicant third country would expose australia breach article 33 australia owe protection obligation applicant required determine whether refugee article 1 thiyagarajahat 702 determining whether applicant effective protection third country relevant consideration usually whether applicant right reside enter enter third country whether risk third country return applicant country claim fear persecution whether applicant well founded fear persecution third country inthiyagarajah case applicant recognised france refugee accorded effective protection including right reside enter enter country however operation ofthiyagarajahis restricted case effective protection result grant refugee status extends least case claimant entitled permanent residence time become citizen karthigesu rajendran v minister immigration multicultural affairsper mansfield j 14 certain circumstance principle also apply applicant right temporary residence third country thiagarajah gnanapiragasam fundamental question whether applicant status legal entitlement third country consequence australia obliged ass claim refugee status karthigesu rajendranper mansfield j 14 reason real risk returned country life freedom would threatened one convention reason tribunal view principle case equally applicable applicant effective protection independently refugee convention third country australia applicant status legal entitlement australia real risk australia would breach article 33 convention returning applicant country relation well founded fear persecuted convention reason australia protection obligation respect person circumstance tribunal required ass claim refugee status determining issue relevant consideration whether applicant right reside enter enter australia whether risk australia return applicant country claim fear persecution third consideration usually arises case kind whether applicant well founded fear persecution safe third country clearly arise australia country protection sought country applicant claim fear persecution reason decisionon basis information tribunal find applicant granted australian visa class uh subclass 850 resolution status temporary prior completion review applicant claim well founded fear persecuted china prc however tribunal satisfied applicant legal status entitlement australia risk returned country whether applicant refugee relation china prc tribunal satisfied effective protection australia virtue australian visa permit applicant remain australia multiple return right work right access medicare applicant entitled permanent residency physically resided australia total 10 year provided continues meet health character requirement information tribunal suggest would fail meet requirement department record indicate applicant lived australia total 9 year mean every likelihood granted permanent residency within next year permanent residency granted applicant able travel enter australia period five year date grant apply return residence visa permit travel entry permanent resident applicant apply australian citizenship two year provided satisfied certain residency requirement whether applicant refugee relation china prc tribunal satisfied status legal entitlement australia real risk australia would return applicant country indeed country might well founded fear persecuted breach article 33 refugee convention tribunal therefore satisfied applicant effective protection australia independently refugee convention applicant effective protection australia follows person australia protection obligation refugee convention therefore unnecessary consider substantive claim refugee status conclusionthe 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

Malki, Nikas [2003] MRTA 6395 (18 September 2003).txt

malki nikas 2003 mrta 6395 18 september 2003 last updated 14 november 2003 2003 mrta 6395catchwords student visa cancellation section 116 subclass 573 condition 8202 failure meet course requirement cancellation notification procedure intention cancel response invitation comment invitation provide document section 359a 359 2 act review applicant vikas maliktribunal migration review tribunalpresiding member megan hodgkinsonmrt case number v03 01641dept case number clf2002 052417date decision 18 september 2003at melbournedecision tribunal affirms decision review cancel student temporary class tu visa held review applicant statement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural indigenous affair delegate 28 february 2003 cancel subclass 573 student visa held vikas malik review applicant national india born 7 august 1980 delegate decision cancel visa made themigration act 1958 act 2 jurisdiction standing3 review applicant lodged valid application review migration review tribunal tribunal 11 march 2003 t1 f 5 decision reviewable tribunal application review validly made person standing apply review legislation policy4 section 338 3 act set tribunal general power review cancellation decision allowing review decision cancel visa non citizen migration zone time cancellation immigration clearance 5 reviewing cancellation decision tribunal generally restricts considering ground cancellation raised delegate also examines procedure followed delegate cancelling visa ensure requirement set act met 6 reaching decision review tribunal bound act various regulation written direction issued minister undersection 499of act matter may subject policy found publication theprocedures advice manual3 pam3 themigration series instruction msis produced department immigration multicultural indigenous affair department policy guideline observed inconsistent legislation cogent reason application tribunal generally regard regulation stood time visa cancellation however subsequent amendment may apply circumstance 7 tribunal power affirm vary set aside decision cancel visa tribunal set aside decision cancel visa effect visa treated never cancelled visa would otherwise expired outcome visa longer current particular consequence cancellation longer apply e g restriction applying another visa 8 legislation policy material immediately relevant review legislation section 116 359a 359c 360 363aand379aof themigration act regulation 2 43 migration regulationsclause 8202 schedule 8 migration regulationspolicy migration series instruction msi 368 visa cancellation section 109 116 128 140 procedure advice manual 3 generic guideline g student visasrelevant case law minister immigration multicultural affair v hou 2002 fca 574minister immigration multicultural affair v nguyen 2002 fca 460pradhan v minister immigration multicultural affair 1999 fca 1240zhao v minister immigration multicultural affair 2000 fca 1235william tien v minister immigration multicultural affair 1998 fca 1552evidence9 tribunal regard following material t1 mrt case file v03 01641 folio numbered 1 43 d1 departmental file clf2002 052417 folio numbered 1 134 10 review applicant first entered australia 24 july 1998 student temporary class tu visa subclass 560 granted student temporary class tu visa subclass 573 25 september 2001 due expire 15 march 2004 visa subject condition 8202 enrolment course requirement cancelled 28 february 2003 delegate found review applicant breached condition 11 review applicant enrolled bachelor engineering monash university monash d1 f 3 result follows semester 1 1999 enrolled 4 pas 4 fail 0 d1 f 59 semester 2 1999 enrolled 4 pas 2 fail 2 d1 f 60 semester 1 2000 enrolled 6 pas 1 fail 5 d1 f 62 semester 2 2000 enrolled 6 pas 1 fail 5 d1 f 62 semester 1 2001 enrolled 2 pas 0 fail 2 d1 f 61 semester 2 2001 enrolled 1 pas 0 fail 1 d1 f 61 summer semester 2002 enrolled 1 pas 0 fail 1 d1 f 61 semester 1 2002 enrolled 5 pas 0 fail 5 d1 f 61 semester 2 2002 enrolled 3 pas 0 fail 3 d1 f 114 12 18 july 2001 monash informed review applicant granted deferred examination one subject response application special consideration sit examination january 2002 d1 f 48 13 letter department file dr douglas gee dated 24 july 2001 state review applicant issued medical certificate review applicant 11 march 2001 25 march 2001 suffering pain right hip also issued certificate irritable bowel syndrome 1 april 2001 10 may 2001 d1 f 68 another letter dr gee dated 6 september 2001 state review applicant suffering severe bronchitis asthma stated symptom consistent visa applicant unable study 6 august 2001 d1 f 69 another certificate dr gee dated 10 may 2001 state review applicant suffering study related stress recommended deferred study summer d1 f 67 14 monash wrote review applicant 10 december 2001 informing academic progress considered unsatisfactory required appear academic progress committee january 2002 show cause excluded d1 f 52 15 9 september 2002 monash sent review applicant written notice non compliance notice ncn undersection 20of theeducation service overseas student act2000

SUEZ Recycling & Recovery Pty Ltd T_A SUEZ Recycling & Recovery [2020] FWCA 7046 (23 December 2020).txt

suez recycling recovery pty ltd suez recycling recovery 2020 fwca 7046 23 december 2020 last updated 12 january 2021 2020 fwca 7046fair work commissiondecisionfair work act 2009s 185 application approval single enterprise agreementsuez recycling recovery pty ltd suez recycling recovery ag2020 3446 suez gippsland enterprise agreement 2020waste management industrycommissioner cirkovicmelbourne 23 december 2020application approval suez gippsland enterprise agreement 2020 1 application made approval enterprise agreement known thesuez gippsland enterprise agreement 2020 agreement application made pursuant tos 185of thefair work act 2009 act made suez recycling recovery pty ltd agreement single enterprise agreement 2 basis material contained application accompanying declaration satisfied requirement ofss 186 187and188as relevant application approval met 3 transport worker union bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 note agreement cover organisation 4 agreement approved 23 december 2020 accordance withs 54 operate 30 december 2020 nominal expiry date agreement 30 june 2023 commissionerprinted authority commonwealth government printer ae509963pr725829

Rodney Dale Morrison v Daniel Clifford and Anglo Coal (Dartbrook Management) Pty Ltd [2007] NSWIRComm 292 (12 December 2007).txt

rodney dale morrison v daniel clifford anglo coal dartbrook management pty ltd 2007 nswircomm 292 12 december 2007 last updated 25 january 2008new south wale industrial relation commissioncitation rodney dale morrison v daniel clifford anglo coal dartbrook management pty ltd 2007 nswircomm 292file number irc2366irc2367hearing date 29 10 07 30 10 07date judgment 12 december 2007parties prosecutor rodney dale morrisondefendants daniel cliffordanglo coal dartbrook management pty ltdcoram kavanagh jcatchwords matter 2366 2006charge s8 2 virtue ofs26 1 theoccupational health safety act 2000 individual defendant mine manager existing system safe working failure identify safe work procedure untrained member mining crew basic task defendant limited time role manager safety conscious application ofs10of thecrimes sentencing procedure act 1999 charge dismissedmatter 2367 2006charge unders8 2 theoccupational health safety act 2000 corporate defendant company control mine compliance system place failure ensure safe system work unsafe work practice failure supervise knowledge unsafe roof condition contribution third party risk general specific deterrence foreseeability roof fall fatality penalty imposedlegal representativesprosecutor mr p cahill counselsolicitors m rizzocrown solicitor officedefendant mr f holmes qc mr meehan counselsolicitors mr nettletonblake dawson waldroncases cited capral aluminium ltd v workcover authority new south wale 2000 49 nswlr 610inspector christopher downie v menzies property service pty limited 2004 nswircomm 259lawrenson diecasting pty ltd v workcover authority new south wale inspector ch ng 1999 nswircomm 343 1999 90 ir 464markarian v r 2005 hca 25 2005 215 alr 213r v thomson r v houlton 2000 49 nswlr 383rodney dale morrison v roche mining pty limited 2007 nswircomm 276signanto v queen 1998 hca 74 1998 194 clr 656tyler v sydney electricity 1993 47 ir 1workcover authority nsw v mcdonald australia ltd anor 2000 nswircomm 277 2000 95 ir 383workcover authority new south wale inspector farrell v david carl schrader 2002 nswircomm 25 2002 112 ir 284legislation cited occupational health safety act 2000crimes sentencing procedure act 1999judgment 23 industrial court new south walescoram kavanagh jwed 12 december 2007matter irc2366 2006rodney dale morrison v daniel cliffordprosecution unders8 2 theoccupational health safety act 2000by virtue ofs26 1 theoccupational health safety act 2000matter irc2367 2006rodney dale morrison v anglo coal dartbrook management pty ltdprosecution unders8 2 theoccupational health safety act 2000judgment 2007 nswircomm 2921 prosecution brought rodney morrison director mine forest safety performance department primary industry previously assistant director performance improvement department mineral resource daniel clifford mine manager anglo coal dartbrook management pty ltd corporate defendant way application order issued pursuant tos8 2 theoccupational health safety act2000

O'Connor & Anor v Moreland CC [2012] VCAT 459 (19 April 2012).txt

connor anor v moreland cc 2012 vcat 459 19 april 2012 last updated 24 april 2012victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference p2404 2011permit application mp 2010 205applicant reviewphilip connor france coffeyrespondentmoreland city councilpermit applicanteminent designssubject land1 chamber street brunswickwhere heldmelbournebeforephilip martin memberhearing typehearingdate hearing16 april 2012date order19 april 2012citationo connor anor v moreland cc 2012 vcat 459ordersin permit application mp 2010 205 decision responsible authority affirmed relation land 1 chamber street brunswick permit granted directed issued permit shall allow construction multi storey residential building incorporating basement car park accordance endorsed plan provided subject permit condition set notice decision grant permit dated 14 july 2011 modified follows respect condition 1 wording draft condition modified follows word equipment sub clause following new word shall inserted immediately afterwards visual acoustic perspective add new condition 1 l read follows l location mail box philip martinmemberappearancesfor responsible authoritymr arthur vatzakis council planner applicant reviewmr connor m coffey appeared personfor permit applicantmr russell hocking consultant planner informationdescription proposalthe construction 3 storey apartment building containing 8 dwelling incorporating basement car parking nature applicationsection 82of theplanning environment act1987

Admiralty Towers II [2020] QBCCMCmr 333 (19 June 2020).txt

admiralty tower ii 2020 qbccmcmr 333 19 june 2020 last updated 30 june 2020adjudicator orderoffice commissionerfor body corporate community managementcitation admiralty tower ii 2020 qbccmcmr 333parties body corporate admiralty tower ii applicant scheme admiralty tower ii ct 15344jurisdiction body corporate community management act 1997 qld act section 227 1 and229 3 body corporate community management standard module regulation 2008 standard module application 0697 2020decision date 19 june 2020decision sutherland adjudicatorcatchwords emergency whether authorise committee spend beyond relevant limit committee spending limit act 243a standard module 151ordersmade committee body corporate admiralty tower ii ct 15344 hereby authorised make payment 60 467 00 alpha fire protection pty ltd work set quotation reference number qalp7898c sr revised quotation scope work reason decisionoverview 1 matter concerned question whether emergency circumstance exist warrant order authorising committee applicant make payment excess spending authority 2 applicant say following circumstance constitute emergency warrant order authorising committee make payment excess spending limit current fire safety infrastructure fsi good conditionadvice received contractor fsi would fail emergency evacuation building result fsi failing risk occupier high andthe way ensure fsi good condition avoid high risk occupier carry spending soon possible 3 annual general meeting held 27 february 2020 agm body corporate budgeted anticipated maintenance fsi upcoming financial year body corporate amount 78 486 00 4 temporary repair fsi carried earlier year intention fsi operational new digital based system became available later year understood new digital based system longer available later year expected 12 18 month away 5 temporary repair fsi ineffective committee advised alpha fire protection pty ltd alpha quotation currently unable complete monthly test existing ziton ewis crash alarm condition generated via fire control panel system obsolete part longer available believe system fail building go full evacuation mode reason recommend existing ziton ewis upgraded asap risk building occupant high 6 applicant obtained two quotation carry necessary work 7 applicant say body corporate option urgently carry maintenance work fsi obtain authorisation adjudicator analysis 8 satisfied jurisdiction determine matter 1 9 application made pursuant section 243a act provides 1 section applies commissioner reasonably considers application immediately referred dispute resolution officer relates emergency circumstance b appropriate deal application section 247 2 commissioner may immediately refer application dispute resolution officer without giving written notice mentioned section 243 1 10 section 247 deal interim order sought appropriate case 11 section 159of standard module requires body corporate maintain common property good condition including utility infrastructure fsi 12 quotation alpha confirms fsi crash alarm condition generatedis obsoletewould fail full evacuation moderequires upgrading soon possible andpresents high risk occupant 13 section 152and153of standard module provide spending excess major spending limit requires consideration two quote work required fsi exceed major spending limit body corporate obtained quotation consideration meet obligation respect major spending limit 14 submitted quotation alpha ought quotation approved alpha existing contractor scheme accordingly familiar scheme existing infrastructure requirement alpha contractor identified urgent issue fsi 15 committee spending limit applicant 38 600 00 le quotation obtained section 151of standard module provides committee give effect proposal involving spending excess relevant limit committee spending authorised ordinary resolution applicant say viable would take least 5 week obtain authorisation long given urgent circumstance submitted belowall owner given written consent applicant say viable 193 lot schemean adjudicator satisfied spending required meet emergency applicant say ought case situation orthe spending necessary comply existing statutory order adjudicator order court judgement queensland civil administrative tribunal order apply situation 16 applicant submits circumstance required work fsi urgent risk building occupant high order sought made leave body corporate occupier lot significant risk damage injury loss life emergency occur body corporate already budgeted proposed expenditure sufficient fund available expenditure 17 fire safety trifling matter delay attending identified maintenance could put owner occupier grave danger applicant given clear ground emergency expenditure approved current contractor appropriate choice conclusion 18 make requested order 1 adjudicator may make order equitable circumstance resolve dispute claimed anticipated contravention act cm exercise right power performance duty act cm section 276 act order may contain ancillary consequential provision adjudicator considers necessary appropriate section 284 1 act see also actsections 227 meaning dispute 228 purpose provision schedule 5 adjudicator order

Lincoln & Boland [2018] FCCA 609 (6 April 2018).txt

lincoln boland 2018 fcca 609 6 april 2018 last updated 24 may 2018federal circuit court australialincoln boland 2018 fcca 609catchwords family law parenting issue dispute time child aged 10 spend mother party older child aged 12 want spend time mother mother accepts situation irreversible younger child resistant spending time mother expressed wish time supervised mother proposing spend supervised time younger child two hour per fortnight next six month thereafter spend time two hour per fortnight unsupervised concern mother drug use mental health partner child would unacceptable risk harm spent unsupervised time mother sign anything changing mother benefit child court making order indefinite supervised time order made child spend time mother agreed party father determination whether time occurs final legislation family law act 1975 s 60cc 61dacases cited mazorski albright 2007 famca 520 2008 37 famlr 518applicant m lincolnrespondent mr bolandfile number pac 2985 2010judgment judge terryhearing date 5 6 march 2018date last submission 6 march 2018delivered newcastledelivered 6 april 2018representationcounsel applicant mr rugendykesolicitors applicant rowlandson co solicitorscounsel respondent mr daviessolicitors respondent king legal pty ltdcounsel independent child lawyer mr murraysolicitors independent child lawyer coast laworders 1 previous parenting order concerning x born omitted 2005 born omitted 2007 child discharged 2 father shall sole parental responsibility child 3 child shall live father 4 child shall spend time mother agreed writing mother father noting however father decision whether time occurs shall final father may require time supervised 5 mother shall telephone communication time agreed mother father failing agreement sunday mother place call 6 00pm 6 30pm father ensure available receive call 6 mother liberty send letter card gift child father shall pas letter card gift child unopened 7 mother may obtain child school copy school report order form school photograph newsletter information routinely provided parent butmay notattend event child school normally attended parent without written consent father first obtained 8 pursuant tos 68bof thefamily law actthe mother restrained injunction granted restraining approaching child attending extra curricular activity without consent writing father first obtained 9 father shall notify mother soon reasonably practicable child either subject medical emergency accident requiring attendance hospital diagnosed suffering serious illness 10 parent restrained injunction granted restraining denigrating party party partner member party family presence hearing child 11 mother restrained injunction granted restraining permitting facilitating contact communication child either mr 12 party shall keep advised residential address telephone number email address shall advice party change detail within 7 day change occurring 13 father may obtain passport child travel internationally child notwithstanding consent mother obtained noted publication judgment pseudonymlincoln bolandis approved pursuant tos 121 9 g thefamily law act 1975 cth federal circuit courtof australiaat newcastlepac 2985 2010ms lincolnapplicantandmr bolandrespondentreasons judgmentintroductionthese proceeding concern parenting arrangement x 12 10 parent separated 2007 x le two yet born 2007 late 2013 child lived mother spent substantial time father however september 2013 father withheld child mother spent limited time since spent time late 2013 early 2016 supervised time february 2016 february 2017 spent time since february 2017 currently telephone communication mother x refuse mother commenced proceeding september 2015 application week shared care trial began longer seeking fixed order x order seeking spend unsupervised time alternate weekend school holiday mother proposed spend time three consecutive saturday 10 00am 4 00pm four alternate weekend 10 00am 4 00pm saturday sunday alternate weekend 10 00am saturday 4 00pm sunday half school holiday mother case drug problem concerning mental health issue father alleged maintained father pushed child life 2013 using excuse invalid belief issue time alienated x conceded situation x irretrievable said case reason spending regular unsupervised weekend holiday time end trial apparent mother would able maintain case father fault rather ceased meaningful part child life late 2013 clear using drug might still must apparent legal team mother failure present frank open case addressed issue drug use status mental health nature relationship partner mr likely cause court cautious making order spend unsupervised time mother counsel informed court toward end trial order mother sought spend time two hour per fortnight supervised big brown house six month thereafter two hour per fortnight unsupervised able attend school event extra curricular activity proposed telephone communication continue father sought order child spend time mother agreed father mother agreed mother continuing telephone communication opposed order mother able attend school event extra curricular activity also sought order would allow obtain passport child could take holiday independent child lawyer supported order child spend time mother agreed party proposed order made telephone communication mother mother able send child letter card gift obtain copy school report information child school evidencethe mother relied affidavit filed 22 february 2018 father relied affidavit affidavit wife m filed 22 february 2018 family report prepared november 2016 m aregulation 7family consultant mother father m cross examined mr boland required considerable concern mother credit witness frequently transpired evidence affidavit accurate issue proceeding mother compliance drug test request made independent child lawyer must realised likely problem case trial affidavit filed 22 february 2018 said follows time deposing affidavit ordered paid another hair follicle test attended upon dr n 19 february 2018 complete test provide party court copy result available 1 commencement hearing inquired whether result test available mother solicitor said hand stood matter could make inquiry would available court reconvened informed mother fact paid test although still maintained doctor taken hair sample told paid test informed would take 30 day get result another conflict evidence mother affidavit emerged trial respect hair follicle test mother june 2017 test positive methamphetamine ice cannabis trial affidavit mother explained follows took marijuana methyl amphetamine day mother day 2017 overwhelmed feeling hopelessness able see child mother diagnosed terminal illness told wanted see child died neighbour saw distressed whilst garden gardening gave drug 2 cross examination mother said neighbour offered cannabis cigarette denied knowingly used ice could explain got system embarked long story drinking port hour neighbour saw cry said bottle port hand neighbour saw rather undermining claim outside gardening agreed father counsel given mother day 14 may 2017 consumed drug day mother day done five day court made hair follicle testing order occasion mother evidence cross examination information document said match evidence trial affidavit mother witness credit extent even nothing contradict evidence cannot lightly accept telling truth huge problem mother ran minimalist case admitted used drug four occasion 2015 2018 occasion immediately prior returning positive drug test result seemed case court accept extent drug use use fact failed number test upon request specimen provided dilute creatinine basis explanation test might true creatinine level might naturally low essentially case unless something could proved could used might valid approach criminal case crown prove case beyond reasonable doubt never valid approach parenting case another problem mother failed call mr lived since 2013 said deep friendship give evidence father family report writer raised concern mr mother failure call significant problem case finally mother failed call evidence current state mental health said counselling done recently done anonymously online mother lack credit witness significant implication case concern father credit consider content paragraph 66 family report raise concern credit father occasion refreshingly honest asked turned drunk see born answer simple yes however father case poorly presented trial affidavit large combination updating material circumstance earlier affidavit never going response allegation made mother earlier affidavit also made task trying piece together history matter challenging gap cannot fill information case outline document prepared solicitor evidence backgroundthe mother 44 father 38 commenced cohabitation 2004 married omitted 2006 two child x born omitted 2005 born omitted 2007 party separated may 2007 x 21 month old yet unborn separation 2013 mother child primary carer however father always spent time party attended mediation one occasion discus issue father time 2008 agreed child would spend two night week father 2012 x started school became five night fortnight 2013 party living omitted child going school omitted june 2013 mother began spending great deal time sydney allegedly supporting friend sick baby child began spending time father omitted 2013 mother commenced relationship mr troubled father mr prison 2007 2013 knowingly involved supply drug mother used drug past time went father formed view using drug also alleged became apparent mother neglecting child properly feeding ensuring clean clean clothes august 2013 mother unexpectedly collected child school spent two day caravan park caused conflict parent september 2013 father solicitor told mother intended withhold child produced three clean drug test mother one test although father paid three would appear child spent time september 2013 24 december 2013 father filed application seeking order child live spend time mother agreed party january 2014 incident father home mother came home paternal grandmother formed view mother trying remove child luring car telling tub teddy bear car mother denied intention take child said simply wanted deliver teddy bear incident degenerated mother threatening grandmother father applied advo 13 march 2014 advo made protection mother m j wife m child mother served father document engage proceeding court file response attend court 9 april 2014 final order made absence provided father sole parental responsibility child live father spend time mother agreed parent writing around time order made mother relocated queensland mr said care mother also step father diagnosed cancer mother made request see child 2014 order made father would agree proposal mother step father died omitted 2015 following death mother returned nsw 17 september 2015 seen child nearly two year filed application federal circuit court seeking 2014 order discharged seeking order child live week arrangement 16 december 2015 interim order made provided mother spend time child two hour per fortnight supervised omitted contact centre time place became available spend time child two hour per fortnight supervised big brown house private accredited supervision service order also made mother telephone communication child child spent time mother supervised big brown house january 2016 april 2016 omitted contact centre april 2016 february 2017 x frequently extremely distressed prior visit quiet father collected end one occasion distressed father take away another took 30 minute supervisor calm however father always complied order took child visit exhibit level distress 10 june 2016 order made preparation family report family report writer faced situation father making allegation drug use mother limited evidence support conclusion mother drug problem tended view problem matter father aligning child unreasonably resisting relationship mother family report writer recommended interim order made child spend unsupervised time mother half day fortnight three month progressing full day fortnight three month mr attended interview family report writer concerned mr aggressive demeanour thing child said recommended mother ensure child brought contact mr time recommended mr drug test engage therapy address assessed aggression intimidatory style relating others end child spending six month time mother mr produced clean drug test engaged therapy commence spending half full day child spending mother child recommended father x therapy address separate issue concerned father case assessed aligning child reject mother updated report prepared three month child introduced mr 8 december 2016 following release report consent order made provided child continue supervised time mother 11 march 2017 thereafter mother two unsupervised visit two hour march two unsupervised visit three hour april followed three hour alternate sunday commencing 7 may 2017 8 hour alternate saturday commencing 6 august 2017 mother restrained bringing child contact mr order 8 order provided however progression unsupervised time conditional upon mother random drug test within 24 hour requested independent child lawyer request made per month result free illicit substancesunsupervised time never commenced mother failed satisfy drug testing requirement mother requested drug test 8 december 2016 failed offered explanation trial affidavit test january 2017 result clear result test 13 february 2017 clear sample integrity issue dilute creatinine result test mother 7 march clear mother voluntarily test 27 march 2017 10 april 2017 18 april 2017 first two result clear last clear sample integrity issue dilute creatinine 9 may 2017 order made mother submit urinalysis within 24 hour hair follicle test 16 june 2017 mother urinalysis within 24 hour positive cannabis urinalysis test done 23 june 2017 clear hair follicle test mother submitted 28 june 2017 positive methyl amphetamine cannabis 10 august 2017 matter listed trial march 2018 25 july 2017 14 october 2017 1 december 2017 mother urinalysis produced clean result save 13 october 2017 sample contained oxazepam issue made trial sample provided 5 september 2017 sample integrity issue dilute creatinine mother failed test requested 18 november 2017 3 january 2018 1 february 2018 order made 8 december 2016 provide fall back position happen mother failed satisfy drug testing order trigger move unsupervised time mother seen child since february 2017 mother telephone communication child responds well x take part mother also endeavour find child wish purchase gift x also respond party current circumstancesthe mother living one bedroom unit omitted mr maternal grandmother mr grandson said family placement sanctioned western australian child welfare authority said mr shared bedroom slept single bed maternal grandmother slept couch trial mother said maternal grandmother always spent month time omitted another family member mention affidavit mother said applied three bedroom house department housing expected allocated house shortly provided evidence made application problem given lack credit accept might made would logical given circumstance mother affidavit said allocated house intended live maternal grandmother mr would moving parent home omitted 3 yet another example contradictory evidence mother said cross examination mr would fact living part time new home part time parent unable explain would living time new home obtained mother receipt centrelink benefit carer mother whether receives centrelink benefit whether mr unknown father life omitted child m married omitted 2011 two child b born omitted 2010 7 c born omitted 2012 5 father previously managed business omitted owned parent sold business omitted currently working occupation omitted x commenced high school year omitted school hobby omitted year 5 omitted school play hobby omitted b c also attend school child best interestsany order make child must order determined treating best interest paramount consideration ands 60cc 2 3 thefamily law act 1975contain matter must regard order determine best interest primary consideration in 60cc 2 benefit child meaningful relationship child parent andb need protect child physical psychological harm subjected exposed abuse neglect family violence 60cc 2a provides applying consideration set subsection 2 court give greater weight consideration set paragraph 2 b additional consideration in 60cc 3 include child view nature relationship parent capacity parent provide need child whether family violence sometimes necessary make finding thes 60cc 3 matter inform consideration thes 60cc 2 matter case intend start considering matter in 60cc 3 first thes 60cc 3 matter isany view expressed child factor child maturity level understanding court think relevant weight give child view family report writer said follows x view 2016 interview asked view future parenting arrangement x clear state wished remain living father said sure would feel safe unsupervised time mother could identify risk might x clear state would feel anxious mr attended unsupervised time could identify risk may pose 4 x express total opposition seeing mother spoke report writer 2016 main attended supervised visit february 2016 february 2017 notwithstanding issue time father agreed would child would commence spending unsupervised time mother march 2017 complied drug testing order however never counsel independent child lawyer informed court orally case outline document x wish spend time communicate mother receive letter card gift clear family report report writer view father aligned child unreasonably resisting spending time mother opinion child spending regular unsupervised time mother implication opinion x expressed fear reluctance spending time mother pandered however result evidence heard trial accept father ever formed plan wrest child mother 2007 2013 child lived primarily father content spend time 2012 father time child increased six seven night fortnight mother instigated increase time 2013 mother formed relationship mr also reason asserted valid connected supporting sick friend began leave child father father formed view mother using ice perspective unreasonable suspicion mother historically used drug considered aspect presentation supported view report interview 2016 family report writer sceptical father claim ice use evidence support mother tested positive ice hair follicle test 2017 tested positive cannabis may june 2017 21 july 2016 time trial produced three sample integrity issue failed comply six request urinalysis mother failed dispel concern father may right drug use 2013 father commenced court proceeding late 2013 mother dropped radar went queensland remained august 2015 order made april 2014 provided mother spend time child agreed party although mother sometimes asked see nothing put father concern drug use rest considerable sympathy father blame concerned prospect mother spending time child consider father set harm telling child mr prison ideal world might reflected necessity telling child inclined unduly critical view also view independent child lawyer evidence alignment evidence support finding september 2013 onwards father simply trying protective child consensus trial even mother x view spending time mother respected agree appropriate time family report interview willing spend time mother family report writer said follows asked view future parenting arrangement clear state want remain living father nothing like father stepmother asked would feel comfortable spending time mother outside supervision said would asked time might progress overnight weekend holiday time said thought would good idea asked would alright mr present unsupervised time said would 5 counsel independent child lawyer said long trial told independent child lawyer willing spend time mother provided time supervised proposed supervised two year said may ready see unsupervised said wanted communicate mother call weekend discussion hearing possibility view influenced x view father lack support child spending unsupervised time mother suggested might feel need align view accepted view household whether safe child spend time mother could case certainly gave reason picking period two year supervision lived experience connection mother could also bearing view never resistant spending time mother might order made supervised time happen six month unsupervised time commence would resist going case turn view outcome depend weighing balancing thes 60cc 2 3 matter must considerthe nature relationship child child parent andother person including grandparent relative child x relationship mother present seen spoken since supervised time ended february 2017 respond overture identifying present would like willingly attended supervised visit occurred told family report writer 2016 enjoyed seeing mother keen spend time family report interview physically affectionate however spent time mother year relationship tenuous present child good relationship father wife two younger sibling satisfied good relationship member father mr boland extended family must considerthe extent child parent taken failed take opportunity participate making decision major long term issue relation child andto spend time child andiii communicate child mother withdrew child life second half 2013 whether excuse gave accurate cannot determine went queensland 2014 remained august 2015 available spend regular time child even father agreed although family report writer highly critical father recognised mother behaviour impact willingness x particular spend time said follows also highly likely x felt abandoned mother may caused x feel angry mother trust mother 6 report writer expressed view report father retaining child 2013 may trigger mother experiencing mental health crisis disappearing child life two year 7 accept foundation opinion mother withdrawing child life prior real possibility either drug use relationship mr trigger occurred although cannot make definitive finding also possible unrelated decline mother mental health accept father action blame father contrast always available spend time communicate child must consider extent child parent fulfilled failed fulfil parent obligation maintain child father primarily support child mother receipt centrelink benefit position make significant contribution relevance issue however pay supervised time court order occur must considerthe likely effect change child circumstance including likely effect child separation either parent orii child person including grandparent relative child living change circumstance proposed case resume spending time mother order made spend supervised time would accordance view would ensure maintained bond sort perspective would beneficial change difficulty case whether order practical whether benefit outweigh detriment consider later judgment unsupervised time would appropriate beneficial result placed unacceptable risk harm also something consider later judgment must considerthe practical difficulty expense child spending time communicating parent whether difficulty expense substantially affect child right maintain personal relation direct contact parent regular basis parent live omitted travelling distance relevant issue case mother said could afford pay supervised time six month whether could continue indefinitely something cannot certain must considerthe capacity child parent person including grandparent relative child provide need child including emotional intellectual need father providing well child day day basis properly attending education implication mother case properly attending emotional need preventing relationship accept case view father acted protectively child withholding september 2013 solicitor father requested mother three drug test affidavit mother said test result negative provided result test done 8 october 2013 clean sample integrity issue father said oral evidence deposited money pay three test mother account one test prefer father evidence mother failed file response father commenced court proceeding december 2013 march 2014 relocated queensland attend court 9 april 2014 final parenting order made absence provided spend time child agreed parent mother said father refused request spend time child order made provided evidence took step put rest concern reasonably held time mother failed child late 2013 denied anything fact formed relationship mr using drug came series excuse happened said mid 2013 commenced supporting friend whose baby dying rare brain tumour result fully available child claimed father took advantage september 2013 began making unfounded allegation using drug withheld child alleged late 2013 early 2014 suffering severe anxiety depression eagerly adopted hypothesis family report writer father conduct either cause exacerbated result went queensland said queensland care ill mother dying step father step father death able return nsw since making assiduous effort see child fact failed number drug test provided several sample dilute creatinine tested positive illicit drug three occasion could explained away used deny time mother witness credit element story may true accept reasonable explanation simply available child september 2013 september 2015 real possibility given decline mother parenting x coincided commencing relationship mr series possibly untrue excuse since formed relationship returned old habit using illicit drug prioritising relationship mr available child want unduly harsh witness lacking credit mother difficult incredulous plethora excuse available child complying drug test request providing sample integrity issue story mother told witness box bottle port neighbour cannabis cigarette heightens concern extent excuse give believed fact mother let child past necessarily reason see future willing spend time however number potential risk factor spend unsupervised time mother one exposed drug taking effect mother craving drug influence drug recovering effect drug use mother admitted historically used illicit drug including speed lsd ecstasy told family report writer used ice cross examination said recreational drug user used drug called shabu believed may methamphetamine mother denied regularly using drug since 2013 never provided reliable account drug use since proceeding commenced affidavit filed commenced proceeding 15 september 2015 said follows mr boland previously alleged ice user drug addict willing submit random chain custody drug screen urinalysis demonstrate mr boland honourable court consume illicit substance risk child care whilst waiting grant legal aid approved commence court proceeding family law court undertaken two chain custody urinalysis drug screen nz 4308 2008 standard first test undertook 24 june 2015 annexed hereto marked l9 test state creatinine level may indicate sample dilution spoke doctor dr v advised cannot drink amount coffee usually drink day test result common undertook chain custody urinalysis drug screen 17 august 2015 annexed hereto marked l10 copy result urinalysis result negative illicit substance 8 although 17 august 2015 result indeed clear mother say affidavit shortly afterwards used cannabis said distressed passing step father asked court believe aberrant event evidence regular use illicit drug family report interview 2016 mother told family report writer used drug age 25 save using cannabis step father death strongly denied using ice drug 2013 father retained child considerable scepticism whether correct given evidence drug testing 21 july 2016 present time mother test requested 21 july 2016 8 december 2016 1 may 2017 18 november 2017 3 january 2018 1 february 2018 said unwell 21 july 2016 offered explanation failure test requested 8 december 2016 said menstrual cycle 1 may 2017 said unaware request made 18 november 2017 3 january 2018 1 february 2018 alleged solicitor holiday 22 december 2017 29 january 2018 ill 29 january 2018 5 february 2018 three occasion result test mother indicated sample integrity issue dilute creatinine family report writer asked said undergone education told dilute creatinine result person consuming large quantity liquid dilute urine drug show upon testing laboratory asked test drug accordance australian standard test presence drug urine test presence drug threshold quantity accept noted test result dilute creatinine identified low creatininemaybe due sample dilution reason creatinine low including illness naturally low creatinine mother knowing critically important show using drug provide medical evidence suggested issue mother counsel submitted court could draw adverse inference mother basis dilute creatinine unless court made finding mother deliberately diluted urine accept submission criminal proceeding crown bear onus proof parenting proceeding court must determine order child best interest mother clearly knew dilute creatinine issue referred affidavit chose nothing dispel possibility deliberately diluted urine avoid detection drug satisfied take account together fact result positive illicit drug number test done trying determine whether mother truthful drug use summary 21 july 2016 present mother tested positive illicit drug two occasion including ice june 2016 failed six test returned three sample dilute creatinine mother would court believe time used drug last three year time drug detected improbable situation positive result taken together sample dilute creatinine occasion test done yet another problem mother despite admitting affidavit used ice well cannabis may 2017 cross examination denied knowingly using ice mother done drug test recently cannot satisfied using drug present minimal information provided trial complete lack credit witness cannot ass extent problem family report writer commenting evidence available mother currently using drug said follows report following discussion mother agrees access relapse prevention strategy drug alcohol counsellor ensure stressed future relapse use illicit drug 9 mother done drug alcohol counselling recent year suggest affidavit intention future take opportunity cross examination assure court would continued quietly maintain concern drug use beat second potential risk factor relation mother although risk factor may much term risk harm mother care let mother state mental health cannot determined mother told family report writer two occasion age 10 11 self harmed overdose alcohol experienced suicide ideation pregnant 2007 2015 trial said suffered severe depression period seeing child said treatment queensland returned omitted 2015 saw mr n psychologist two occasion brief report mr n prepared said mother presented major depression mr n note subpoenaed proceeding commenced court 2015 family report interview 2016 report writer raised mother presence mr mother told mr n felt controlled possessed partner wanted move relationship scared reaction mother hastened inform mr talking referring father clearly correct since mother see psychologist counsellor said trial want note subpoenaed said anonymous online counselling cannot make finding current state mother mental health whether likely decline future rendering unreliable regard child mother ran minimalist case evidence would enable make finding issue mother housing unsatisfactory term spending overnight time issue given mother amended proposal mr significant concern matter trial affidavit mother said child related well mr introduced child expressed reservation talking family report writer x told family report writer found bit scary first got used find scary however informed father point mr jail expressed fear spending time future family report writer said follows report remember lived main mother report mr stayed overnight home occasion sometimes mother x stayed overnight mr home asked view mr said tough nice give cuddle play like drink alcohol asked said mr got bit mean asked mean said anything mean look sound mean say something like asked mr ever like drinking alcohol said yeah worse drinking 10 perhaps importantly family report writer found mr aggressive intimidating challenged neither child acknowledged mr observation session family report interview although heard say goodbye end mean assessing mr give evidence hearing family report writer recommended mr brought contact child completed intervention mother seemed recognise mr issue case proposed restrained bringing child contact difficulty mr n note content family report suggest mother either unwilling unable stand mr mother sharing accommodation even get house continue future absolutely confidence mother would able make mr stay away spending time accommodation even spending two hour unsupervised different place must considerthe maturity sex lifestyle background including lifestyle culture tradition child either child parent characteristic child court think relevant family report writer concerned x highly anxious presentation family report interview recommended psychological treatment soon possible father arranged occur appeared case part problem 2016 x highly stressed anxious spending time mother evidence unchallenged evidence mr boland since time ceased february 2017 x settled happy credible convinced would utility making order x attend counselling going permitted choose whether spend time mother must considerthe attitude child responsibility parenthood demonstrated child parent father demonstrated good attitude child responsibility parenthood mother shown good attitude intermittently unavailable spend time child considered issue bearing drug use mental health mr elsewhere judgment must considerany family violence involving child member child family mother alleged father verbally abusive relationship would damage property punching wall door angry also claimed physically abused time separation grabbing arm threw item pregnant abdomen time separation father said parent verbally abused denied physical violence counter alleged mother threw tv remote 12 mother witness credit prepared accept uncorroborated word father violent cannot sure incident father recounted tv remote accurately recounted either context issue party 2007 late 2013 period mother behaved aggressively two particular occasion 22 december 2013 mother repeatedly rang employer omitted father working demanding speak admitted repeatedly demanded come phone would come employer omitted admitted mr joined threatened going come shut employer omitted father sufficiently concerned safety make complaint police mother admitted january 2014 threatened knock paternal grandmother knock head dispute father home january 2014 frightened paternal grandmother act family violence mother behaviour call made father feel concerned safety threat paternal grandmother act family violence mother may particularly bad place life time run case life changed since therefore risk lashing way future mention threat paternal grandmother affidavit family violence major issue case save given cannot resolve concern mother drug use state mental health concern might lash make threat future mother told mr n afraid mr reaction separated cannot find state evidence family violence mother relationship mr family violence defined thefamily law act must consider family violence order applies applied child member child family relevant inference drawn order taking account following nature order circumstance order made evidence admitted proceeding order finding made court proceeding order relevant matter 13 march 2014 twelve month advo made protection father mother m j wife m x b c mother advo also obtained father time protection mr assist consider order separate issue mother said final advo made january 2014 protect husband friend mr p mother alleged mother harassing regarding whereabouts child order certainly made mother absence mother attached copy interim order affidavit referred anyone trial significant issue must considerwhether would preferable make order would least likely lead institution proceeding relation child father first filed proceeding december 2013 proceeding quickly ended current proceeding began september 2015 foot 2 ½ year stressful difficult parent child involved ongoing court proceeding case important court far possible make order least likely lead proceeding order time time accordance child wish order least likely lead proceeding order time carry high risk proceeding either supervised time breaking party one looking court solution ongoing issue mother mental health drug use must considerany fact circumstance court think relevantbut relevant matter must return tothe primary considerationsand first benefit child meaningful relationship parent need protect child harm exposed subjected abuse neglect family violence 60cc 2a thefamily law actrequires prioritise first consideration second agreed party trial possible make order would restore x relationship mother focus case meaningful relationship mother unless spends time telephone communication keep relationship going relationship fit within category significant valuable important child 13 however safety concern exposed drug use mother mother influence drug craving drug mother severely depressed state aggression mr risk physical psychological harm relationship mother valuable mother failed dispel concern spent unsupervised time might exposed thing mother case end trial would unacceptable risk harm spent limited period unsupervised time proposed two hour family report writer asked expressed opinion risk would remain whether time short rather long given nature risk case merit opinion time supervised accredited provider supervision make assessment sort mother state time commences allow time occur obvious problem time becomes unsupervised father would make judgment place burden give rise risk either conflict occurring parent might witness matter returning court problem unsupervised time even short duration absolutely confidence mother would able prevent mr present spent supervised time mother would risk harm result exposure mother using drug possibly mother influence drug mr could kept away relationship mother would especially meaningful spent brief supervised time accompanied telephone call would maintain relationship sort however relevant issue case whether court consider making order supervised time prospect time ever becoming unsupervised usually desirable make order long term supervised time risk high arrangement break due thing resistance child inability pay cost supervision unavailability chosen supervisor also lead meaningful relationship parent child turn lead question whether order made benefit child benefit parent exception every rule order supervised time usually made prospect time becoming unsupervised future foreseeable prospect case idea current state mother drug use mental health put forward proposal dealing issue admit existed absolutely confidence anything likely different mother future parental responsibilityon 9 april 2014 order made father sole parental responsibility child commencement trial mother seeking order equal shared parental responsibility conclusion trial consented order father retain sole parental responsibility child conclusionthe mother reliable committed parent since commenced relationship mr 2013 extent coincided problem mother extent caused problem know mother commenced relationship became unreliable spending time child father began raise concern level care receiving mother variety excuse unreliability including need support friend sick baby need go queensland care dying step father depression whether extent drug use played mother mental health issue know mother present frank open case whatever cause view considerable risk mother might prove unreliable future spending time would necessarily insurmountable problem willing see mother attached father well looked father going let support counselling child live fact one parent unreliable taught fault benefit opportunity ongoing relationship parent person good place however problem matter remaining two problem existence mr mother life fact cannot exclude possibility mother using drug make finding nature extent problem drug cannot easily overcome child expressed mixed feeling mr family report interview family report writer found aggressive confrontational ability behave way demonstrated call made father 2013 mother told counsellor 2015 wanted separate mr afraid reaction denied saying family report writer asked mr present brings question mother capacity stand mr mr spent several year prison knowingly concerned supply drug mother currently using drug mr never done drug test mother denied illicit drug user witness credit mother said one thing affidavit another cross examination whether mr would living obtained home department housing faith mother would able ensure mr intrude made order unsupervised time mother claimed court deep friendship mr extremely difficult understand chose call witness except feared might harm case problem mother open find currently using illicit drug mother refusal properly address concern drug use drug test asked providing credible information history drug use last year mean simply cannot satisfied currently drug problem many implication case mother using illicit drug may unreliable spending time could exposed harm care either openly used drug craving drug influence drug could expect father support unsupervised time issue unresolved creates high risk order adhered accept would appropriate make order unsupervised time matter even limited period mother proposed could sure would safe would fair ask father support order could sure given occasion mother mental health whether using drug whether mr might hovering wing waiting take part visit father dropped problem mother becomes simply evidence could find thing likely different future reason outlined earlier consider appropriate make order long term supervised time something may occasionally appropriate appropriate case could easily break would deliver benefit independent child lawyer submitted regrettable appropriate order case well x spend time mother agreed parent failing agreement determined father agree submission acknowledge may well mean see mother quite time father unlikely agree time occurring unless mother satisfies using drug mr scene sign mother either willing able thing addition mother asks see father may well defer whether want see mother may willing express wish knowing x see mother father concern however pointed submission father complied order mother telephone communication mother able demonstrate real change willing beyond bound possibility time could agreed future mother asked order able attend school event extra curricular activity father opposed mother always respect boundary always civil father would child best interest make order could result child becoming upset place regard safe haven place expect enjoy intend make order save order occur father written consent always sad end court proceeding child see parent court cannot always mend broken family situation case least ongoing possibility telephone communication sending letter card gift independent child lawyer proposed order mother able obtain copy child school report information normally provided parent reflected whether order would benefit child face perhaps keep mother interested child give something talk telephone benefit intend make order father sought order able obtain passport child travel internationally child intend make order matter may return court nothing suggest father intends leave australia permanently lengthy period child certify preceding two hundred twenty seven 227 paragraph true copy reason judgment judge terrydate 6 april 2018 1 mother affidavit paragraph 76 2 mother affidavit paragraph 68 3 mother affidavit paragraph 17 4 family report paragraph 91 5 family report paragraph 101 6 family report paragraph 92 7 family report paragraph 30 8 paragraph 74 76 mother affidavit filed 15 september 2015 9 family report paragraph 34 10 11family report paragraph 95 12 family report paragraph 13 13 mazorski albright 2007 famca 520 2008 37 famlr 518

The Australian Workers' Union v Smorgon Steel (Services) Pty Ltd t_as Smorgon Steel Manufacturing - PR963986 [2005] AIRC 903; (18 October 2005).txt

australian worker union v smorgon steel service pty ltd smorgon steel manufacturing pr963986 2005 airc 903 18 october 2005 pr963986australian industrial relation commissionworkplace relation act 1996s 99notification industrial disputethe australian worker unionandsmorgon steel service pty ltd smorgon steel manufacturing c2005 5056 metal industrysenior deputy president actonmelbourne 18 october 2005dispute carer family friendly leave recommendationfurther proceeding commission regarding carer family friendly leave provision smorgon steel mill certified agreement 2005 associated site agreement wire mill rural reinforcing area recommend 1 smorgon steel service pty ltd smorgon steel manufacturing smorgon accept mentioned agreement provide annual carer family friendly leave entitlement four day shift worker five day day worker case shift worker shift worker take four day either three day carer leave one day family friendly leave four day carer leave day family friendly leave case day worker day worker take five day either four day carer leave one day family friendly leave five day carer leave day family friendly leave and2 australian worker union member employee covered mentioned agreement accept smorgon require employee utilizing carer leave provide medical certificate regarding illness person concerned amount time required commission senior deputy presidentprinted authority commonwealth government printer price code

Grant v Chapmans (A Firm) [2006] WADC 128 (22 August 2006).txt

grant v chapman firm 2006 wadc 128 22 august 2006 last updated 28 november 2006jurisdiction district court western australiain chamberslocation perthcitation grant v chapman firm 2006 wadc 128coram fenbury dcjheard 7 august 2006delivered 22 august 2006file civ 1375 2004between robert cary grantplaintiffandchapmans firm defendantcatchwords appeal deputy registrar decision granting certain amendment statement claim refusing grant others turn factslegislation nilresult appeal plaintiff allowedappeal defendant dismisseddefendant pay plaintiff costsrepresentation counsel plaintiff mr j castleydefendant mr l gandinisolicitors plaintiff bradford codefendant chapmanscase referred judgment nilcase also cited nil1fenbury dcj cause action pleaded plaintiff original statement claim professional negligence sued solicitor acting behalf respect personal injury suffered workplace pursuing claim worker compensation damage common law 2 pleaded duty allegedly breached statement claim focus various aspect advice given omitted given concerning settlement negotiation culminated plaintiff settling claim short alleged result defendant negligent advice plaintiff settled claim modest sum 3 writ summons endorsed statement claim served defendant 14 july 2004 mutual informal list document exchanged early february 2005 matter entered trial 23 september 2005 pre trial conference set 24 october 2005 principal registrar 4 conclusion pre trial conference matter adjourned listing conference set 16 december 2005 5 16 december 2005 listing conference adjournedsine dieon plaintiff application enable file serve application seeking leave amend statement claim 6 4 january 2006 plaintiff filed chamber summons seeking leave amend statement claim accordance minute proposed amended statement claim chamber summons listed special appointment came hearing deputy registrar 21 march 2006 minute obvious plaintiff sought number amendment statement claim learned deputy registrar allowed plaintiff amend accordance proposed amendment refused leave respect others 7 party appealed deputy registrar decision 8 amendment sought proposed par 7a 7b 8 1a 8a 17 2a 18 2a raise issue relating alleged failure defendant pursue lodge particular type application called form 22 application made theworkers compensation rehabilitation act 1981 9 allegation amount negligent failure act nature pursuing right remedy available plaintiff time 10 different allegation negligently advising plaintiff compromise legal right 11 seem alleged negligent failure act different cause action alleged negligent giving advice 12 however given defendant firm solicitor retained plaintiff legally represent respect legal entitlement following accident work new cause action simply relates discrete aspect legal framework faced plaintiff claim respect defendant provide legal assistance think fairly said new cause action arises substantially fact 13 view thought unduly strain language 21 r 5 thesupreme court rule would also comment view degree potential prejudice plaintiff allowing amendment relate form 22 far outweigh prejudice defendant allowing amendment issue quite discrete narrow think late revelation significant 14 would allow abovenamed amendment 15 turning proposed amendment 10a 10b 17 2b 18 2b allegation relate obtaining certain medical report prepared dr lawson smith behest insurer claim 16 plaintiff wish allege defendant firm solicitor failed obtain copy two report provide plaintiff 17 allegation relate alleged le professional legal representation although connection whatever loss alleged suffered plaintiff bit difficult see seem particularly controversial would allow amendment sought 18 follows therefore view plaintiff amend statement claim accordance proposed minute amendment statement claim filed effect would allow appeal plaintiff dismiss appeal defendant defendant pay plaintiff cost taxed agreed

Boral Resources (Country) Pty Ltd re Boral NSW and ACT Country Quarry Operations Enterprise Agreement 2008 [2010] FWAA 4345 (11 June 2010).txt

boral resource country pty ltd boral nsw act country quarry operation enterprise agreement 2008 2010 fwaa 4345 11 june 2010 fair work australiadecisionfair work act 2009s 185 approval enterprise agreementboral resource country pty ltd ag2010 1020 boral nsw act country quarry operator enterprise agreement 2008quarrying industrysenior deputy president harrisonsydney 11 june 2010application approval boral nsw act country quarry operation enterprise agreement 2008 1 application made approval enterprise agreement known theboral nsw act country quarry operation enterprise agreement 2008 agreement application made pursuant tos 185of thefair work act 2009 act agreement single enterprise agreement 2 satisfied requirement ofss186 187and188as relevant application approval met 3 australian worker union bargaining representative agreement given notice unders 183of act want agreement cover required bys 201 2 note agreement cover organisation 4 agreement approved accordance withs 54 1 operate 18 june 2010 nominal expiry date agreement 10 october 2011 senior deputy presidentprinted authority commonwealth government printer price code ae878356 pr998062

Empire Holdings (QLD) Pty Ltd T_A Empire Hotel and Cloudland [2022] FWCA 62 (11 January 2022).txt

empire holding qld pty ltd empire hotel cloudland 2022 fwca 62 11 january 2022 2022 fwca 62fair work commissiondecisionfair work transitional provision consequential amendment act 2009sch 3 item 16 application terminate collective agreement based transitional instrumentempire holding qld pty ltd empire hotel cloudland ag2021 8562 empire family employee collective agreement 2006 2011hospitality industrycommissioner huntbrisbane 11 january 2022application termination empire family employee collective agreement 2006 2011 1 24 november 2021 empire holding qld pty ltd empire hotel cloudland employer made application pursuant tos 225of thefair work act 2009 act terminate theempire family employee collective agreement 2006 2011 agreement agreement passed nominal expiry date 1 june 2011 2 agreement made 2008 prior act coming force collective agreement based transitional instrument cabti application made pursuant tos 225 b act schedule 3 item 16 thefair work transitional provision consequential amendment act 2009 transitional act application section discussed application brought schedule 3 item 16 application dealt pursuant 225 act consideration required agreement made act application made employer 3 agreement cover employer employee classified agreement application made behalf employer mr paul janssen general manager employer application supported form f24c declaration mr janssen 4 application made person mr janssen course hearing two related application related application made employee contended covered agreement september 2021 employer objected commission jurisdiction deal application basis employee employee covered agreement application made casual employee whose employment commenced start shift ended end shift two relevant employee working day made respective application number employee covered agreement wrote chamber course related proceeding advising supported termination agreement 5 related application listed jurisdiction hearing 24 november 2021 6 jurisdiction hearing held determine two related matter employer quite properly conceded agreement long passed nominal expiry date appropriately compensate employee penalty rate way thehospitality industry general award 2020 award agreed make immediate application understanding due regard would submission wished make appropriate termination date contemporaneous evidence given 7 satisfied fresh application made 24 november 2021 allocated following adjournment jurisdiction hearing two related matter proceeded hear oral evidence mr janssen relation application made employer 8 mr janssen much opportunity prepare oral evidence stated following agreement cover approximately 200 employee one venue covered agreement cloudland seven function room booking approximately 154 wedding next 12 month together corporate event ball award night lot wedding booked march april may 2022 agreement terminated near future employer wear cost increased wage payable employee without passing cost event booked busiest time thursday sunday various premise open 3 00am employer dedicated hr person starting onboard improved record keeping system significant administrative effort move agreement award employee informed christmas 2021 new year period 2022 employee receive flat rate 50 per hour public holiday 9 mr janssen stated employer would prefer termination date may june 2022 however comfortable date 22 may 2022 would allow employer staff reasonably large number wedding paying rate within agreement 10 inquired undertaking might provided relevant public holiday easter 2022 paying flat rate 50 per hour public holiday time undertaking given written evidence confidentiality order 11 afforded employer opportunity lodge material support submission termination date agreement 22 may 2022 material filed 3 december 2021 satisfied material contain commercially sensitive information considered appropriate issue order maintain confidentiality information orderpr736478 1 direction inform employee evidence filed employer 12 6 december 2021 made following direction f24c statutory declaration mr janssen provides employee covered theempire family employee collective agreement 2006 2011 agreement agreement subject previous correspondence application ag2021 7037 ag2021 7997 ag2021 7998 application cashman sanchez rose respectively ag2021 7998 discontinued hearing held application ag2021 7037 ag2021 7997 24 november 2021 hearing empire holding qld pty ltd empire hotel cloudland made application termination agreement submitted agreement terminated termination date agreement be22 may 2022 regard event already booked costed 226 fwc must terminate enterprise agreementif application termination enterprise agreement made section 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 commissioner reviewed application material issue direction directions1 applicant directed communicate writing employee covered agreement forwarding email inviting correspond email chamber event wish provide view including view proposed termination date 22 may 2022 applicant directed provide email employee covered agreement later than4 00pm aest thursday 9 december 2021 employee email placed staff notice board meal room another accessible place chamber mail telephone contact 2 applicant directed provide email chamber explaining compliance direction 1 setting number employee covered agreement later than4 00pm aest friday 10 december 2021 employee covered agreement may provide view application likely effect termination agreement view proposed termination date 22 may 2022 later than4 00pm aest friday 17 december 2021by emailing chamber view employee must open provided commission employer applicant sake clarity employee covered agreement commissioner advises following hearing commissioner 24 november 2021 applicant employer made application terminate agreement requested occur 22 may 2022 agreement terminated term thehospitality industry general award 2020will apply link award provided http www fwc gov au document document modern_awards award ma000009 default htmb agreement terminated rate pay payable employee covered award found schedule b summary hourly rate pay c applicant employer submission evidence commission large number event including wedding costed move award cost worn applicant employer would unable passed customer booked event including wedding applicant employer provided detailed information commission relating event occur 2022 document subject confidentiality order commission attached interested employee wish view document commissioner may convene hearing determine document provided ensure confidentiality order met person wish view document commissioner note effect agreement terminated award applying would employee covered perform work related event including wedding employee reminded wish provide view whether agreement terminated particular date view required provided later than4 00pm aest friday 17 december 2021by emailing chamber view employee must open provided commission employer applicant 13 10 december 2021 employer confirmed forwarded correspondence employee covered agreement 14 received view three employee first employee submitted termination date 31 december 2021 employee stated following empire holding large team office 100 capable costing new budget 2022 taking account new employee wage top company opened new venue valley hop brewing believe empire holding capable self insured opening new venue without problem time many business afford stay open empire holding 100 capable paying employee industry standard wage minor editing 15 second employee stated following strongly believe unjust keep eba agreement may 2022 previously budgeted wedding affect majority staff team work function deem unfair work regular shift main venue paid accordingly 16 third employee stated following believe paying employee award wage mandatory regardless event booked coming near future company large enough pay employee penalty rate working weekend late night public holiday termination agreement happen soon possible another five month especially considering heading christmas time sure many employee would agree would rather spending time family working job pay fairly deserve paid industry award wage relevant evidence employer 17 employer supplied evidence relevant rate pay paid employee covered agreement agreement column rate paid hour work casual employee including weekend public holiday included table rate pay payable saturday sunday public holiday casual employee casual positionagreementawardsaturdaysundaypublic holidaysbar attendant 27 96 27 15 32 58 38 01 54 30bar attendant senior 28 92 28 08 33 69 39 31 56 15cleaner 27 96 26 15 31 38 36 61 52 30f b attendant introductory 26 17 25 41 30 50 35 58 50 83f b attendant 26 93 minimum 26 15 31 38 36 61 52 30 18 include table additional payment work performed monday friday 7 00pm midnight midnight 7 00am rate additional 2 37 per hour part thereof additional 3 55 per hour part thereof respectively 19 clear agreement rate relatively small amount excess award rate paid hour work noted however significant proportion hour worked many casual employee covered agreement performed 7 00pm monday friday saturday sunday occasionally public holiday accordingly award component paid employee ordinary hour worked monday friday 7 00am 7 00pm substantial payment properly compensate higher rate pay employee missing employed award 20 evidence supplied confirmed booking wedding conference event across employer relevant venue cloudland empire hotel press club warehouse june 2022 weekend least one booking friday saturday sunday week additional booking wedding booking typically vicinity 60 170 people event 1000 people 21 january 2022 weekend night event booked including location 1 location 2 across three venue friday 14 january 2022 friday 14 january 2022sunday 16 january 2022 sunday 16 january 2022sunday 23 january 2022 sunday 23 january 2022sunday 30 january 2022 sunday 6 february 2022friday 4 february 2022 saturday 12 february 2022sunday 6 february 2022 sunday 13 february 2022saturday 12 february 2022 friday 18 february 2022sunday 13 february 2022 sunday 20 february 2022sunday 20 february 2022 sunday 27 february 2022sunday 27 february 2022 sunday 6 march 2022friday 18 march 2022 sunday 13 march 2022sunday 20 march 2022 friday 18 march 2022sunday 3 april 2022 sunday 20 march 2022sunday 8 may 2022 sunday 27 march 2022sunday 29 may 2022 friday 1 april 2022sunday 5 june 2022 saturday 2 april 2022sunday 3 april 2022sunday 10 april 2022friday 15 april 2022saturday 16 april 2022sunday 17 april 2022friday 6 may 2022sunday 8 may 2022friday 13 may 2022saturday 21 may 2022 22 understand cloudland empire hotel press club feature bar open general public whereas warehouse dedicated function facility naturally significant number staff associated function performing work cloudland empire hotel press club whether function room used function reach finish time understand patron access public bar continue wish 23 large contingent employee working around 27 28 per hour casual hour worked whether assisting function even function location employee work saturday deprived approximately 5 per hour compared award employee work sunday deprived approximately 10 per hour compared award employee work public holiday deprived approximately 24 per hour compared award termination enterprise agreement nominal expiry date 24 earlier noted item 16 schedule 3 transitional act provides subdivision division 7 part 2 4 act applies relation collective agreement based transitional instrument reference enterprise agreement included reference collective agreement based transitional instrument 25 subdivision division 7 part 2 4 act provides termination enterprise agreement nominal expiry date subdivision consists s 225 226 227 term follows 225 application termination enterprise agreement nominal expiry dateif enterprise agreement passed nominal expiry date following may apply fwc termination agreement one employer covered agreement b employee covered agreement c employee organisation covered agreement 226 fwc must terminate enterprise agreementif application termination enterprise agreement made section 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 227 termination come operationif enterprise agreement terminated section 226 termination operates day specified decision terminate agreement contrary public interest 226 26 first consider whether satisfied termination agreement contrary public interest 27 decision approve termination themcdonald australia enterprise agreement 2013 deputy president colman observed 2 section 226 require commission satisfied termination enterprise agreement isinthe public interest set lower requirement commission must satisfied contrary public interest terminate agreement emphasis original 28 agreement made 15 year ago significantly le beneficial term condition employee contained within award satisfied contrary public interest terminate agreement appropriate 226 b 29 must consider whether appropriate terminate agreement taking account circumstance including view employee employer employee organisation covered agreement circumstance employee employer organisation including likely effect termination 30 note employer support termination agreement virtue application jurisdiction requires commission besatisfiedit appropriate terminate agreement taking consideration view employer employee covered agreement together circumstance likely effect termination 31 employee organisation covered agreement 32 view employee provided view termination agreement would result better employee provided view eager agreement terminated sooner rather later 33 likely effect employer need comply award provide annual wage increase pursuant award employee paid award rate accept increase substantial particularly given increased patronage employer venue late night weekend significantly higher rate pay need paid 34 likely effect employee may see reduction ordinary rate pay currently exceeds award rate however become entitled penalty rate within award penalty rate substantially greater relatively recent benefit derived flat rate pay paid employee enjoy parity pay award large number employee within industry appropriately compensated working late night weekend public holiday 35 taking account view person including employer referred 226 b presented commission circumstance person well effect termination consider appropriate terminate agreement operative date termination 36 primary issue determination application much whether agreement terminated rather 37 section 227 provides enterprise agreement terminated 226 termination operates day specified decision terminate agreement 38 accept significant change employer accommodate business pay penalty rate pursuant award satisfied employer need take time adjust proposed roster costing future cost event accept administrative effect termination agreement insignificant 39 employer application made understanding appropriate regard evidence presented commission employer nominated 22 may 2022 termination take effect 40 employee provided view supported earlier termination proposed employer 41 regard fact related application made casual employee september 2021 put employer notice since agitation change move award application made relevant employee within jurisdiction employer notice would take single casual employee whilst working shift make application commission potentially satisfy commission jurisdiction determine application terminate agreement 42 true employee becoming aware effect zombie agreement often denying employee benefit within modern award including penalty rate agreement made pre 2009 surprising employee making 225 application old agreement terminated employer enjoying comparative benefit reduced wage application old agreement provide penalty rate near equivalent modern award would otherwise apply clock essentially ticking agreement 43 regard material filed employer view employer employee consider appropriate terminate agreement effective monday 31 january 2022 reviewed evidence employer satisfied booking place within function room militate loss wage experienced 200 large workforce work beyond 7 00pm monday friday weekend public holiday especially date event booked 44 employer experience increased wage bill particularly function pre paid employer stated preparedness increase charge customer function consider burden rest employer compared loss employee substantial hourly rate work weekend public holiday 45 coming decision regard amount time reasonably consider employer requires make necessary change pay accordance award satisfied employer adapt make change pay accordance award date conclusion 46 reason given consideration 226 satisfied termination agreement contrary public interest nothing raise public interest consideration might militate termination agreement 47 reason given consideration material relevant s 226 b ii consider appropriate terminate agreement 48 accordance 226 must terminate agreement application terminate agreement approved 49 reason given termination take effect 31 january 2022 commissioner 1 pr736478 2 2019 fwca 8563at 16 printed authority commonwealth government printer ac300867 pr737390

Constantinidis v Equititrust Ltd [2010] NSWSC 299 (20 April 2010).txt

constantinidis v equititrust ltd 2010 nswsc 299 20 april 2010 last updated 21 april 2010new south wale supreme courtcitation constantinidis v equititrust ltd 2010 nswsc 299jurisdiction equity divisioncorporations listfile number 2010 00076669hearing date 15 04 10judgment date 20 april 2010parties achilles constantinidis first plaintiffcheckling pty ltd second plaintiffwindsor turf pty ltd third plaintiffgonfanon pty ltd fourth plaintiffequititrust limited first defendantdavid clout second defendantjudgment barrett jlower court jurisdiction applicablelower court file number applicablelower court judicial officer applicablecounsel mr r pesman plaintiffsmr e j hyde first second defendantssolicitors beazley singleton plaintiffstucker cowen first second defendantscatchwords corporation receiver controller manager validity appointment receiver application declaration invalidity mortgage mortgage charge generally receiver whether appointment receiver mortgagee valid primary industry generally farm debt mediation farm debt mediation act 1994 whether debt borrowing acquire land incurred purpose conduct farming operation borrower lender enter collateral agreement proving resale land view profitlegislation cited corporation act 2001 cth 418a 2 farm debt mediation act 1994 s 5 2 c 6 8 1 category principal judgmentcases cited australian cherry export ltd v commonwealth bank australia 1996 39 nswlr 337mayfair trading co pty ltd v dreyer 1958 hca 55 1958 101 clr 428mcclelland v federal commissioner taxation 1970 hca 39 1970 120 clr 487varga v commonwealth bank australia 1996 nswsc 86 1996 7 bpr 15 052texts cited decision proceeding dismissed costsjudgment supreme courtof new south walesequity divisioncorporations listbarrett jtuesday 20 april 20102010 00076669 achilles constantinidis 3 or v equititrust limited 4 orsjudgment1 application unders 418a 2 thecorporations act2001

Louise Newman v The Western Australian Turf Club T_A Perth Racing [2022] FWC 1492 (19 July 2022).txt

louise newman v western australian turf club perth racing 2022 fwc 1492 19 july 2022 last updated 20 july 2022 2022 fwc 1492fair work commissiondecisionfair work act 2009s 394 unfair dismissallouise newmanvthe western australian turf club perth racing u2022 276 commissioner schneiderperth 19 july 2022application unfair dismissal remedy 1 3 january 2022 m louise newman applicant lodged application unfair dismissal remedy western australian turf club perth racing respondent application lodged fair work commission commission pursuant tosection 394of thefair work act 2009 cth act 2 respondent object application basis applicant protected unfair dismissal satisfied minimum employment period pursuant tosection 383of act applicant casual employee respondent worked respondent period year respondent small business statutory minimum employment period applicable six month however respondent submits applicant served six month continuous service following reason applicant employment regular systematic basis b even applicant employed regular systematic basis could reasonable expectation continuing employment regular systematic basis 3 section 396of act requires certain matter determined merit application matter commission must first determine applicant served minimum employment period decision concern preliminary issue 4 briefly stated concluded applicant protected unfair dismissal applicant completed period employment respondent least minimum employment period required act applicant unfair dismissal application therefore dismissed order effect issued concurrently 1 reason determination follow background 5 applicant commenced employment respondent 11 february 2020 barrier attendant 6 respondent requires barrier attendant operate barrier stall racecourse operation required certain day namely race day trial day commission informed race day perth racing generally held wednesday saturday 7 applicant called mr shane ross mr ross give evidence mr ross previously worked respondent 32 year work racing wagering western australia rwwa barrier attendant rwwa provide barrier attendant respondent 8 mr ross provided insight wider requirement racing industry giving evidence barrier attendant commonly work casual basis multiple racing organisation mr ross known applicant around 17 year worked approximately 6 different racecourse including respondent operation ascot belmont 9 relation point made party agree due operational requirement various racing organisation including respondent uncommon barrier attendant applicant work multiple employer racing industry time 10 also common ground applicant suffered injury whilst engaged another employer unavailable work respondent period around 6 month march september 2021 2 period applicant complete shift respondent 11 also common ground applicant received email mr darren yeoh people culture manager respondent 15 december 2021 stated understand keith langley informed intend roster shift time casual employee perth racing obliged provide shift reason provided shift however would like inform decision offer shift due wholly failure perform role standard expected perth racing relevant lawlegislation 12 relevant statutory provision aresections 382 383 and384of act provision part read 382 person protected unfair dismissala person isprotected unfair dismissalat time time person employee completed period employment employer least minimum employment period 383 meaning minimum employment periodtheminimum employment periodis employer small business employer 6 month ending earlier following time time person given notice dismissal ii immediately dismissal b employer small business employer one year ending time 384 period employment 1 employee speriod employmentwith employer particular time period continuous service employee completed employer time employee 2 however period service casual employee count towards employee period employment unless employment casual employee regular casual employee ii period service casual employee employee reasonable expectation continuing employment employer regular systematic basis 13 section 22of act provides definition service continuous service 22 meaning ofserviceandcontinuous servicegeneral meaning 1 period ofserviceby national system employee national system employer period employee employed employer include period anexcluded period count service subsection 2 2 following period count service period unauthorised absence b period unpaid leave unpaid authorised absence period absence division 8 ofpart 22 deal community service leave ii period stand underpart 35 enterprise agreement applies employee employee contract employment iii period leave absence kind prescribed regulation c period kind prescribed regulation excluded period break national system employee scontinuous servicewith national system employer count towards length employee continuous service 3a regulation made purpose paragraph 2 c may prescribe different kind period purpose different provision act provision subsection 4 applies subsection 3 applies accordingly authority 14 court inyaraka holding pty ltd v giljevic yaraka 3 provided clarification construction theregularandsystematic test court highlighted theengagementin question must subject scrutiny noted engagement must regular systematic hour worked pursuant engagement 4 15 full bench commission reinforced relied construction test subsequent judgement 5 full bench stressed pattern hour worked one consideration determination whether engagement regular systematic 6 16 regarding meaning ofregularandsystematicthe court inyarakaexplained term regular construed liberally may accepted magistrate intended imply form repetitive pattern rather used synonym frequent often however equally used section synonym word uniform constant 7 engagement contract systematic basis implies something regularity sense mentioned frequency basis engagement must exhibit something fairly called system method plan 8 17 party matter currently commission discussed pattern predictability applicant shift length court inyarakaprovided following relation issue concept engagement systematic basis require worker able foresee predict service may required sufficient pattern engagement occurs consequence ongoing reliance upon worker service incident business engaged 9 18 court inyarakafound engagement question matter systematic regular court provided major consideration determination view basis apparent system method plan involved shared understanding substantial part respondent time would devoted work appellant b respondent preferentially making available appellant whenever possible c expected acknowledged loyalty commitment respondent appellant interest venture bonus payment significant respondent would personally perform work desired appellant rather delegate inference indicated appears overwhelming e shared understanding appellant would return furnish respondent substantial amount work f unusually high degree mutual personal regard trust confidence party frequently deferred payment service ability pledge appellant credit g stability feature long period 10 19 commission relied court construction regular systematic fromyarakain several subsequent decision inponce v djt staff management service pty ltdthe commission expanded assessment whether employee regular systematic provided following consideration employer regularly offer work suitable work available time employer know employee generally made available work offered accepted sufficiently often could longer regarded simply occasional irregular 11 20 regarding reasonable expectation continuing employment jackson j inbronze hospitality pty ltd v hansson 2 bronze noted following relation forming expectation employee expectation based anything employer said solely observation regularity work shift would wrong look back say turned reasonable expectation beginning expectation could reasonable time pattern necessary make emerged 12 21 relation thereasonablenessof expectation formed jackson j stated expectation formed necessary ass whether reasonable one true word reasonable generally used law import objective standard adam v bracknell forest borough council 2004 ukhl 29 2005 1 ac 76at 33 lord hoffmann fwa limit matter may taken account determining whether expectation reasonable 13 submissionsrespondent 22 20 may 2022 respondent filed submission support jurisdictional objection 23 respondent filed witness statement mr antonio favazzo mr favazzo chief operating officer respondent section 384 2 regular systematic casual 24 respondent position summary applicant one 10 15 casual employee alongside permanent employee would sent bulk group text respondent offered casual shift recipient respondent submits due respondent operation shift primarily offered wednesday saturday 25 respondent asserts consistent withyaraka applicant engaged system method plan rather bulk group text sent casuals could accept decline shift pleased 26 mr favazzo gave evidence behalf respondent verified payroll record confirmed applicant declined accept 46 shift around 123 shift making approximately 37 rejection rate respondent position rejection demonstrate casual nature engagement regular systematic engagement section 384 2 b ii reasonable expectation continuing employment 27 respondent highlighted applicant contract employment clause 1 1 governing enterprise agreement clause 5 5a 14 confirmed writing applicant commencement engagement respondent casual employee expectation guarantee ongoing employment respondent 28 respondent cited several recent decision high court primary authority supporting position 15 applicant 29 6 june 2022 applicant filed response submission relation jurisdictional objection section 384 2 regular systematic casual 30 applicant contends engaged regular systematic basis satisfies requirement ofsection 384 2 act 31 applicant highlight respondent operation required applicant engaged primarily wednesday saturday day subject operational requirement applicant availability 32 applicant contends respondent made representation representation follows time entering contract applicant informed would offered regular shift wednesday saturday race day also day need available 33 applicant relies representation basis engagement meeting requirement undersection 384 2 act 34 evidence available confirm contract signed 12 february 2020 applicant even superseded replaced revised agreement changed intent initial contract employment 35 applicant also citesyarakaon basis respondent operational requirement rostering arrangement bulk group text casual employee form system method plan 36 applicant submitted casual employee requirement accept every shift offered respondent accepted shift primarily wednesday saturday available work 37 applicant also noted recovered injury caused absence 16 march 2020 2 september 2020 respondent recommenced offering shift 38 mr ross provided evidence completing duty respondent operation worked alongside applicant section 384 2 b ii reasonable expectation continuing employment 39 applicant relied representation forming reasonable expectation continuing employment 40 applicant noted respondent witness mr favazzo confirmed via witness statement text message containing offer 1 2 shift sent pool casual employee weekly basis typically 2 3 week advance shift date applicant submits process demonstrated applicant reasonable expectation ongoing employment 41 applicant highlighted working respondent close 2 year exception 6 month absence worker compensation matter 42 applicant addressed recent high court authority cited respondent applicant distinguished case authority applicant submits matter commission differs authority part following reason applicant labour hire arrangement employer service separate contract shift offered 2 3 week advance andunlike authority applicant employee subject labour hire arrangement 43 applicant position difference fact render authority little relevance current matter considerationsection 384 2 regular systematic casualpayroll data 44 payroll data provided respondent outline key detail factored decision making prior injury related absence applicant offered 8 shift declined cancelled 3 noting one rejection commencement injury related absence following 6 month injury related absence applicant worked 72 shift 9 september 2020 15 december 2021 applicant declined shift cancelled shift attend shift rostered total 44 time time period outlined applicant worked approximately 62 shift offered respondent 45 payroll data reflects several instance applicant offered shift respondent regular race day neither party highlighted instance provided reason applicant offered shift 46 way shift offered whereby applicant would offered shift via text message along pool casual employee consistent operational requirement business text would sent regularity whenever race needed barrier attendant however way frequency shift offered alone lend engagement regular systematic although held relevant factor consideration 47 applicant formed part pool employee offered shift race day could accepted rejected appear applicant formed part roster traditional sense whereby employee would assigned shift roster would drafted pursuant employee individual availability 16 48 evidence suggestion either applicant respondent applicant offered le shift casual barrier attendant evidence suggest applicant individually critical respondent operation fellow team member critical operation evidence submitted clear reliance applicant evidence applicant rejection rate impacted respondent ability run operation respondent relied applicant worker 49 payroll data provided applicant would available period time would appear unavailable period time available work representation 50 note respondent dispute existence representation respondent claimed representation made lend finding engagement intended regular systematic 51 accept representation likely would occurred 52 representation described applicant submission related day potential shift perhaps frequency offered shift regular systematic nature engagement although relevant consideration representation occurred described applicant submission mean theengagementwas regular systematic basis consideration 53 predictability race day turn led applicant generally working wednesday saturday alleged assurance receiving group text lend applicant engagement regular systematic 17 industry respondent operates largely dictate regularity race day respondent offered work applicant based pre determined racing schedule 18 54 satisfied applicant accepted engaged work way would form regular systematic engagement 19 evident payroll data provided applicant would accept reject shift offered desired commission highlight nature casual employment worker flexibility cancel shift 20 fact applicant decided cancel reject shift preclude finding engagement regular systematic commission emphasis high frequency applicant cancelled rejected shift 55 high rejection cancellation rate reflects irregular unreliable nature engagement applicant generally make available respondent 21 engagement applicant occur consequence ongoing reliance applicant service engagement 22 applicant accept work regularly enough engagement considered occasional irregular 23 56 summary satisfied applicant met requirement ofsection 384 2 act time throughout engagement section 384 2 b ii reasonable expectation continuing employment 57 applicant submission relation tosection 384 2 ii act highlight different personal circumstance applicant high court authority respondent agreed factual difference present however respondent highlighted decision high court held weight purpose commission interpretating nature applicant engagement respondent 58 respondent focused wording underlying intent contract enterprise agreement place outlined contract employment clause 1 1 state applicant employed casual basis casual mean engaged hour guarantee ongoing employment enterprise agreement clause 5 5 state casual employee engaged time time work offered paid work may available week perth racing providesno guarantee going employment 59 applicant also relied representation offering shift evidence reasonable expectation ongoing engagement expectation 60 note respondent action offering applicant shift return injury related absence relevant consideration assessing continuing nature engagement also note respondent continuously offered shift applicant 61 accept applicant may formed theexpectationon basis respondent repeated offering shift 62 however consider offering shift representation basis areasonableexpectation continuing engagement regular systematic basis although relevant consideration decisive reasonable expectation 63 applicant contract employment submitted evidence nothing included contract signed applicant made suggestion employment arrangement would ongoing potentially subject subsequent ongoing arrangement 24 64 evidence submitted clear agreed change writing party suggested change initial term original contract 65 clause contract action throughout period engagement reflect respondent required applicant prioritise ensure ongoing availability 25 66 noted previously respondent contest existence representation representation described applicant submission related day potential shift perhaps frequency offered shift continuing nature engagement representation put applicant occur conclude respondent inferring engagement would ongoing present purpose 67 note court finding inbronze employee fact necessary expectation employer said beginning employment sufficient make expectation reasonable nothing circumstance indicated employer said unreliable implausible otherwise disbelieved criterion may satisfied time 26 68 material clear indication engagement would continuing nature 69 applicant would accept work desired suited personal circumstance find applicant respondent sought formally change initial intent engagement intent applicant employment continuing respondent applicant would made effort advance intention 70 also note scope relevant enterprise agreement applicant engaged permanent part time basis clause 5 4 27 however occurred evidence intention occur 71 non ongoing nature engagement suited respondent highlighted logical employ worker ongoing expectation regular systematic work worker still flexibility cancelling rejecting work desired 72 confirmed mr ross section article submitted respondent applicant professional pursuit industry outside work respondent follows non ongoing irregular unsystematic engagement would possibly suit applicant 73 find applicant may formed expectation ongoing employment due respondent regular offering shift however considering relevant circumstance consider expectation would reasonable point time throughout engagement 74 therefore consistent withsection 384 2 ii act assessing evidence submitted believe applicant ever held reasonable expectation continuing employment respondent 75 notwithstanding conclusion event respondent continued offering shift form basis areasonableexpectation continuing engagement continuing engagement would regular systematic basis conclusion 76 applicant casual employee engaged regular systematic basis reasonable expectation continuing employment regular systemic basis follows applicant met minimum employment period 77 applicant unfair dismissal application therefore dismissed order pr742589 effect issued concurrently commissionerappearances griffithsof clayton utz respondent g mullighanof leeder law applicant hearing detail 2022 perth video june 8 10 1 pr742589 2 service broken period absence injury illness see 2010 fwafb 5709 13 3 2006 actca 6 2006 149 ir 339 4 ibid 65 5 2020 fwcfb 306 11 6 ibid 14 7 2006 actca 6 2006 149 ir 339 68 8 ibid 91 9 2006 actca 6 2006 149 ir 339 69 10 ibid 92 11 2010 fwa 2078 76 12 2019 290 ir 344 39 13 ibid 40 14 ae418617 15 workpac pty ltd v rossato 2021 hca 23 2021 392 alr 39 construction maritime energy union anor v personnel contracting pty ltd 2022 hca 1 2022 398 alr 404 zg operation anor v jamsek or 2022 hca 2 2022 398 alr 603 16 contrast see rostering system referenced 2020 fwcfb 306at 19 17 2020 fwcfb 306at 11 18 contrast see rostering system referenced 2020 fwcfb 306at 19 19 2010 fwa 2078 76 20 2014 fwcfb 8752 7 21 2022 fwc 164 18 22 2006 actca 6 2006 149 ir 339 69 23 2010 fwa 2078 76 24 contrast see contract referenced 2020 fwcfb 306 18 19 25 contrast see blackout period employee required hold available work referenced 2020 fwcfb 306 20 26 2019 290 ir 344 43 27 ae418617 printed authority commonwealth government printer pr742588

Intercontinental Hotels Group Australia re Holiday Inn Darwin Enterprise Agreement 2011-2012 [2011] FWAA 2615 (5 May 2011).txt

intercontinental hotel group australia holiday inn darwin enterprise agreement 2011 2012 2011 fwaa 2615 5 may 2011 fair work australiadecisionfair work act 2009s 185 enterprise agreementintercontinental hotel group australia ag2011 732 holiday inn darwin enteprise agreement 2011 2012hospitality industrycommissioner thatchersydney 5 may 2011application approval holiday inn darwin enterprise agreement 2011 2012 1 application made approval enterprise agreement known holiday inn darwin enterprise agreement 2011 2012 agreement application made pursuant tos 185of thefair work act 2009 act agreement single enterprise agreement 2 satisfied requirement ofss 186 187and188of act relevant application approval met 3 applicant provided written undertaking respect casual employee copy undertaking attached decision marked annexure 4 note unders 191of act undertaking taken term agreement 5 united voice bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 act note agreement cover organisation 6 agreement approved accordance withs 54of act commitment given party proceeding agreement operate 11 may 2011 nominal expiry date agreement 31 december 2012 commissionerannexure aprinted authority commonwealth government printer price code ae885376 pr508883

Chen, Rui Yu [2001] MRTA 5187 (7 November 2001).txt

chen rui yu 2001 mrta 5187 7 november 2001 last updated 25 january 2002 2001 mrta 5187catchwords review visa refusal subclass 050 bridging e ground 050 212 acceptable arrangement depart application join class action lodged time application decision visa applicant mr rui yu chentribunal migration review tribunalpresiding member lucinda wrightmrt file number n01 06068dima file number clf2000 005787date decision 7 november 2001at sydneydecision tribunal affirms decision review finding visa applicant entitled grant bridging visa e class andthe tribunal affirms decision review require security statement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural affair delegate mr rui yu chen aka ka luen yung yu xiang chen jia lun wen visa applicant made claim national people republic china hong kong born 10 june 1963 applied bridging visa e class 15 october 2001 delegate decision refuse grant visa made 16 october 2001 jurisdiction standing2 visa applicant lodged application review tribunal 17 october 2001 application review decision refuse visa section 338 4 act review decision request security paragraph 4 02 4 f regulation decision reviewable tribunal application review properly made combined lodgement person standing apply review legislation policy3 themigration act 1958 act various regulation made act principally themigration regulation 1994 regulation provide different class visa criterion grant visa reaching decision tribunal bound act various regulation written direction issued minister section 499 act matter may subject policy found publication theprocedures advice manual 3 pam3 themigration series instruction msis produced department immigration multicultural affair department tribunal required regard policy apply unless cogent reason departing policy 4 tribunal power affirm vary set aside decision refuse grant visa also power remit application visa remittal may accompanied direction visa applicant meet one criterion visa matter minister delegate consider remaining criterion review tribunal generally limited consideration whether visa applicant meet one essential criterion application remitted decision affirmed basis 5 criterion policy immediately relevant review legislation item 1305 schedule 1 regulationspart 050of schedule 2 regulationsschedule 8 regulationspolicy msi 330 bridging visa overview issued 3 september 2001msi 336 bridging e visa subclass 050 legislative framework guideline issued 13 september 2001cases lin v minister immigration multicultural affair 2001 fca 2836 tribunal generally regard regulation regulation stood time visa application however subsequent amendment may apply circumstance 7 applicant bridging e visa subclass 050 general must satisfy primary criterion set inpart 050of schedule 2 regulation date application date decision 8 summary criterion met tribunal satisfied applicant unlawful non citizen holder bridging e class visa subclause 050 211 1 applicant eligible non citizen kind set subregulation 2 20 7 8 9 10 11 subclause 050 211 2 applicant meet requirement one subclauses 2 3 3a 4 4aa 4a 5 6 6a 7 8 9 clause 050 212 requirement clause 050 212 include following applicant making subject acceptable arrangement depart australia applicant made application apply within period allowed minister tribunal substantive visa kind granted applicant australia applicant outstanding application merit judicial review relation substantive visa applicant outstanding request minister one number prescribed request applicant criminal detention bridging e visa granted applicant abide condition imposed clause 050 223 condition mandatory condition found schedule 8 regulation security requested lodged clause 050 224 9 case delegate found visa applicant meet primary criterion clause 050 212 particular making acceptable arrangement depart australia despite delegate went find visa applicant would abide condition found visa applicant meet clause 050 223 delegate also found amount security requested removal proceeding visa applicant commenced per department policy removal occur detention 10 tribunal reconsider whether visa applicant ground grant bridging visa e subclause 050 212 1 time application whether continues satisfy subclause 050 212 1 time tribunal decision subclause 050 221 two issue tribunal determine first whether visa applicant released detention abide condition imposed secondly whether decision require security appropriate decision evidence11 visa applicant represented mr charlie zhou registered migration agent 12 tribunal following document tribunal case file n01 06068 tribunal case file n01 04627dima file clf2000 00578713 summary visa applicant migration history appears file follows 14 visa applicant first entered australia 11 april 1998 subclass 676 tourist short stay visa using identity yung ka luen dob 18 january 1958 visa evidenced hong kong passport expressed cease effect 11 july 1998 15 22 may 1998 visa applicant lodged application protection visa also granted associated bridging visa day stated application form name yung ka luen presented department british national overseas passport name passport due expire 4 august 2002 30 may 1998 department refused protection visa application refugee review tribunal affirmed decision review 31 may 1999 visa applicant bridging visa ceased effect 5 july 1999 16 26 july 1999 visa applicant made application ministerial intervention undersection 417of act minister decided exercise power visa applicant case 19 november 1999 17 10 december 1999 visa applicant lodged application protection visa name chen rui ya departmental officer reported visa applicant claimed arrived australia 3 november 1999 stowaway presented chinese identity card chinese driver licence name chen rui ya application refused delegate 13 april 2000 decision affirmed refugee review tribunal 13 december 2000 18 6 march 2001 visa applicant applied ministerial intervention undersection 417of act name chen rui ya 22 june 2001 minister decided exercise power visa applicant case 19 28 july 2001 department compliance officer located visa applicant working fung lea chicken preston report department officer state visa applicant attempted abscond front gate factory stopped department officer ran back factory attempted hide caught visa applicant stated identity chen yu xiang dob 18 march 1954 australian permanent resident also listed family composition detail relating identity however department satisfied adequately identified detained pursuant section 189 act continues held villawood immigration detention centre 20 31 july 2001 post location interview held visa applicant villawood immigration detention centre visa applicant assisted mandarin interpreter visa applicant recorded giving relevant evidence summarised follows gave identity yung ka luen dob 18 january 1958 citizen hong kong people republic china stated two passport one name yung ka luen another name chen rui ya mother sent little stated never used later passport identity stated stolen identity chen yu xiang dob 18 march 1954 friend stated applied visa also stated used hong kong passport apply refugee status nervous understand stated asked migration agent apply chinese passport could go back hong kong applying refugee status stated living liverpool could remember address asked whether reason cannot depart australia stated wanted go back china look child asked whether involved legal proceeding stated someone owes money considering taking action recover stated intended depart australia voluntarily stated asked whether valid passport stated agent passport sure valid stated asked friend give identity card agent asked whether worked australia visa applicant stated worked one job chicken factory worked 1 2 year stated send money child also owed people money china stated owned house china dollar australia lent someone asked remained australia visa expired stated passport expired money stayed earn money child 21 31 july 2001 department completed removal checklist visa applicant indicating impediment removal completed application new travel document 2 august 2001 department formally commenced removal proceeding visa applicant 22 3 august 2001 mr jack meng contacted department advised acting behalf chen rui ya mr meng stated real name sometimes used name wen jia lun department officer advised mr meng client either name speaking another officer mandarin mr meng advised client given name chen yu xiang real name chen rui yu mistake translation mr meng requested provide signed authority act form provided later day 23 3 august 2001 visa applicant also applied bridging e visa gave identity yung ka luen chen rui yu bracket application form stated depart australia visa expired wanted make money pay debt also stated boy girl waiting china attached correspondence mr meng stated client widow two young child china willing depart australia china stated could produce chinese passport airline ticket stated australian permanent resident willing place bond visa applicant required week close bank account settle wage terminate lease pack luggage 24 3 august 2001 mr meng stated way facsimile letter visa applicant stated true identity chen rui yu instead yung ka luen held valid chinese passport name well airline ticket dated 14 august 2001 subsequently presented department however airline ticket departure 13 august 2001 25 6 august 2001 dima document examination unit reported irregularity visa applicant chinese passport may indicate page substituted 26 7 august 2001 delegate refused application bridging e visa delegate found visa applicant ground grant visa particular noted visa applicant presented valid travel document enable depart saying relied document examination report went find visa applicant meet clause 050 223 stated visa applicant continued mislead department identity also referred visa applicant past non compliance period unlawfulness australia also found security would act incentive visa applicant comply condition 27 9 august 2001 visa applicant applied tribunal review delegate decision application visa applicant gave name chen rui yu name box stated following name yung ka luen chen yu xiang wen jia lun also indicated believe department appropriately considered intended departure china 28 visa applicant indicated tribunal real name chen rui yu stated two child china wanted return care wish live detention centre wished organise bank account organise single journey passport 29 16 august 2001 visa applicant adviser mr peter coroneos submitted letter tribunal indicated visa applicant correct name chen rui yu held photstat copy chinese id card original china proposed make arrangement card forwarded china letter indicated visa applicant willing return china attempting arrange travel document mr coroneos held valid ticket visa applicant departure 2 september 2001 enclosed copy 30 visa applicant provided oral evidence previous hearing stating receiving advice minister refused consider exercising power visa applicant decided return china arranged friend get passport real name paid 1 000 passport passport real name sure genuine friend told different number could use return china paid money one year ago received passport six month ago 31 visa applicant stated sought obtain passport chinese consulate previous six month speak english sure locate consulate asked friend told stop asking question 32 day visa applicant detained chicken factory supervisor told worker surrounded hidden believed going raped realised people officer department come hiding stolen somebody else name asked name detention centre afraid would sent back china heard people using different name done wished collect 7 000 owed leaving australia 33 visa applicant stated two child living china sought reunited decided return china care wished get money owed return china support past visa applicant thought application refugee would successful result would able bring child australia realised hopeless child could come australia pointless stay child young father 34 visa applicant believe currently passport time would allow return china stated son sent identity card used apply single journey travel document 35 20 august 2001 tribunal affirmed decision department refuse grant visa applicant bridging e visa 36 visa applicant depart australia 2 september 2001 date ticket provided representative time mr peter coroneos relation previous tribunal review 16 august 2001 37 15 september 2001 department requested visa applicant complete application people republic china passport hand written note department file indicates visa applicant initially refused complete application spent lot money solicitor stated would complete apply passport released informed would released stated could depart collected money take back son agreed cooperate department officer complete passport application 38 10 october 2001 department completed movement advice visa applicant unlawful non citizen indicating departure china although particular flight arranged stage 39 11 october 2001 department arranged visa applicant depart detention 16 october 2001 guangzhou china date department provided visa applicant notice dated 21 september 2001 would removed 16 october 2001 would pay back detention cost visa applicant requested sign document acknowledging fact received notification however refused sign stating would make travel arrangement purchase ticket 40 15 october 2001 visa applicant applied bridging e visa provided receipt dated 16 october 2001 50 payment ticket departure 28 october 2001 visa applicant current representative mr charlie zhou provided written submission application bridging e visa effect required time leaving australia insisted purchasing ticket even leave detention submission also stated repayment debt one friend reason applying visa 41 15 october 2001 department cancelled removal proceeding visa applicant date visa applicant representative informed department visa applicant made attempt get previous ticket 13 august 2001 revalidated booking confirmed flight made 28 october 2001 despite fact receipt 50 deposit provided 42 16 october 2001 department refused grant visa applicant bridging e visa delegate found visa applicant making subject acceptable arrangement depart australia therefore meet subclause 050 212 2 delegate went decide visa applicant would abide condition bridging e visa subclause 050 223 decided request security per department policy would removed australia detention 43 17 october 2001 visa applicant applied tribunal review decision refuse grant bridging e visa associated decision regarding security information provided submission received hearing effect applicant taken step join themuinclass action representative action expected application joined action high court 15 november 200144 tribunal sent visa applicant letter 22 october 2001 inviting visa applicant comment information tribunal considered would reason part reason affirming decision refuse bridging e visa information related visa applicant claim making acceptable arrangement depart record non compliance migration law visa applicant invited comment adverse information interview hearing interview visa applicant said applied issued chinese travel document thought held dima 45 hearing held 6 november 2001 visa applicant gave oral evidence mandarin interpreter assisted tribunal visa applicant gave evidence follows organised join themuinclass action wished leave detention centre organise affair thing furniture wished sell owed money could ask friend collect money behalf would given money brother recently sent money nobody else could collect money behalf would permit still wished return china see child would leave class action successful even finalised necessary wished go accord wanted bail leave accord want removed used detention disliked food 46 mr zhou said understood visa applicant application join class action would lodged next week handled another representative asked whether tribunal would consider adjourning decision month visa applicant joined action concerned department would take step remove visa applicant finding reasons47 time visa application lodged class contained following subclass subclass 050 bridging general subclass 051 bridging protection visa applicant subclass respect claim advanced subclass 050 evidence suggest visa applicant meet key criterion subclass 48 basis evidence tribunal satisfied visa applicant made valid application bridging visa meet criterion clause 050 211 visa applicant unlawful non citizen eligible non citizen kind set subregulation 2 20 7 11 49 tribunal must satisfied date primary application date decision criterion subclause 050 212 1 met criterion satisfied must established least one ground subclauses 050 212 2 9 met 50 time application visa applicant sought establish meet criterion subclause 050 212 2 deciding whether visa applicant meet criterion subclause 050 212 2 tribunal must consider whether visa applicant able satisfy tribunal making subject acceptable arrangement depart australia section 050 221 visa applicant must continue meet least one ground clause 050 212 51 acceptable arrangement vary case considering whether visa applicant making subject acceptable arrangement depart tribunal regard policy guideline point set msi 3336 guideline suggest number factor may taken account whether applicant possession valid travel document could obtain one within reasonable period whether applicant ticket travel acceptable destination booking reservation depart australia could obtain one within reasonable period applicant capacity travel e g health consideration officer satisfied applicant depart arranged 52 delegate satisfied visa applicant making acceptable arrangement depart even though dima arranged chinese travel document issued presented evidence reservation 50 deposit made attempted revalidate ticket previously purchased used delegate considered visa applicant made arrangement self obtain valid chinese travel document obtain ticket 53 time decision visa applicant longer seek argue making acceptable arrangement depart although reaffirmed willingness return china point instead seek rely step taken towards joined themuinclass action given evidence principal reason released detention could organise affair particular recuperate money claim owed 54 considering evidence tribunal find visa applicant making acceptable arrangement depart australia time application made visa applicant posse travel document identity confirmed however travel arrangement minimal consisting reservation 28 october 2001 confirmed 50 deposit travel agency even taking account arrangement tribunal must also satisfied visa applicant intended depart australia 28 october 2001 tribunal may consider visa applicant intention regard confirmed inlin v minister immigration multicultural affair 2001 fca 283 carr j considered whether tribunal consider visa applicant intention deciding whether making subject acceptable arrangement depart australia carr j stated opinion tribunal deciding whether satisfied applicant making acceptable arrangement depart australia entitled consider whether applicant intention genuine fact case real arrangement let assumed paperwork formal arrangement made apparent applicant genuine intention carrying arrangement circumstance could clearly affect nature arrangement view extent respondent might satisfied acceptable 55 case visa applicant history non compliance migration regulation entered australia another identity made application protection visa identity stayed worked unlawfully australia departed arrangement made leave detained visa applicant made arrangement leave even though stated anxious return child evidence mind tribunal satisfied intended leave accordance arrangement made tribunal find visa applicant meet subclause 050 212 2 56 even tribunal satisfied visa applicant making acceptable arrangement depart australia time application find visa applicant continue meet criterion time decision taking step joined class action visa applicant seeking postpone departure evidence joined action wish recover money dispose possession true tribunal reason doubt clear wish depart australia yet fact take step depart 28 october 2001 day flight reserved 57 visa applicant rely subclause 050 212 4a relating class action judicial review time application visa applicant formally joined class action time decision although lodgement application expected yet yet done 58 tribunal find visa applicant satisfy criterion clause 050 212 3 050 212 9 evidence tribunal satisfied time application visa applicant made valid application substantive apply within period allowed substantive visa kind granted australia court proceeding foot visa applicant outstanding application judicial review either time application time decision visa applicant outstanding application merit judicial review outstanding request minister one number prescribed request 59 accordingly tribunal find visa applicant satisfy threshold criterion subclauses 050 212 2 9 therefore unable meet subclause 050 212 1 60 found visa applicant satisfy threshold criterion grant visa must met time application continue satisfied time decision tribunal considered whether visa applicant would abide condition visa granted clause 050 223 criterion must met time decision 61 visa applicant also made application review decision relating security tribunal must consider whether security requested amount security delegate noted bond requested removal proceeding commenced visa applicant tribunal found visa applicant meet essential criterion must met time application consider necessary explore whether security requested tribunal alternative affirm decision request security conclusion62 tribunal found visa applicant meet one essential criterion grant visa tribunal alternative affirm refusal grant visa failure meet one essential criterion mean application review must fail 63 application deemed also application subclass 051 protection visa claimed apparent evidence fact case satisfy criterion subclass 051 visa therefore tribunal cannot make finding visa applicant eligible grant subclass 051 visa decision64 tribunal affirms decision review finding visa applicant entitled grant bridging visa e class 65 tribunal affirms decision review security required

White & Anor v Hawkesbury City Council [2003] FMCA 420 (16 September 2003).txt

white anor v hawkesbury city council 2003 fmca 420 16 september 2003 last updated 13 october 2003federal magistrate court australiawhite anor v hawkesbury city council 2003 fmca 420bankruptcy application set aside bankruptcy notice extension time compliance bankruptcy notice order madeex parteunder 41 6a basis solicitor affidavit false statement affidavit whether order extending time rescinded cost consideration indemnity cost practice procedure duty candour imposed applicant proceedingex parte standard honesty competence expected legal practitioner bankruptcy act 1966 cth s 30 37 41 federal magistrate court rule 2001 cth lindholdt v merritt madden publishing pty limited 2002 fca 260re baker ex parte tle electrical pty limited 1988 79 alr 445wasilenia v deputy commissioner taxation 2003 fmca 8first applicant second applicant david raymond whitesuzanne may whiterespondent hawkesbury city councilfile sz1820 2003delivered 16 september 2003delivered sydneyhearing date 16 september 2003judgment driver fmrepresentationcounsel applicant mr r debusesolicitors applicant reimer winter williamsoncounsel respondent mr f kuncsolicitors respondent r walmsley coordersthe court directs 1 application cost solicitor applicant adjourned direction 9 30am 27 october 2003 court order 1 application filed 5 september 2003 dismissed 2 order made 5 september 2003 extend time comply bankruptcy notice rescinded pursuant tos 37 1 thebankruptcy act 1966 cth 3 applicant pay respondent cost disbursement incidental application indemnity basis federal magistratescourt australia atsydneysz1820 2003david raymond whitefirst applicantsuzanne may whitesecond applicantandhawkesbury city councilrespondentreasons judgment revised transcript 1 application made respondent creditor hawkesbury city council set aside order made registrar court 10 september 2003 council application seek order rescindedab initiowith effect time compliance bankruptcy notice issued instigation council applicant david raymond white suzanne may white subject substantive proceeding expired 10 september 2003 council also seek order application mr mr white set aside bankruptcy notice dismissed cost paid indemnity basis 2 relevant background bankruptcy notice nn2044 2003 issued instigation hawkesbury city council basis default judgment given supreme court new south wale 20 june 2003 disputed notice served upon debtor present applicant material time compliance bankruptcy notice expired 10 september 2003 time compliance extended 3 5 september 2003 mr mr white applied pursuant toss 30 41 6a and41 7 thebankruptcy act 1966 cth thebankruptcy act set bankruptcy notice aside extension time application also filed 5 september 2003 affidavit mr mr white solicitor mr anil ivan herat support application application set aside bankruptcy notice supporting affidavit assert applicant counter claim set cross demand could set original action equal greater value amount claimed bankruptcy notice also proceeding set aside default judgment supporting bankruptcy notice instituted 4 statement application solicitor affidavit wrong fact proceeding set aside default judgment instituted yesterday 15 september 2003 secondly accepted behalf applicant claim unders 41 7 thebankruptcy actin material counter claim set cross demand one fact set original action supreme court therefore satisfy requirement ofs 41 7 5 section 37 1 thebankruptcy actprovides subject subsection 2 court may rescind vary discharge order made act may suspend operation order 6 subsection 2 presently relevant 7 order question proceeding order made registrar grant 5 september 2003 day application supporting affidavit filed extend time compliance bankruptcy notice pursuant tos 41 6a thebankruptcy actuntil today tuesday 16 september 2003 8 asked rescind orderab initiopursuant tos 37 1 thebankruptcy actbecause order obtained basis false information namely proceeding set aside original judgment instituted time application made applicant counter claim set cross demand could set original action 9 consequence setting aside extension time orderab initioor particularly rescinding order language ofs 37 time compliance bankruptcy notice would expired 10 september 2003 act bankruptcy would committed arguable even stage could extend time compliance bankruptcy notice even previous order made basis application filed 5 september 2003 however minded would rescind set aside order made date made 10 council proceeds affidavit adrian richard walmsley filed court 16 september 2003 exhibit filed day addition council relies upon note conversation mr walmsley counsel mr kunc also mr walmsley mr herat solicitor white exhibit r1 contest whether file note latter conversation exhibit r1 complete record conversation find file note present salient part conversation 11 substance conversation mr walmsley enquired mr herat 10 september 2003 whether stage filed proceeding set aside default judgment mr herat stated mr herat conceded much affidavit filed 15 september 2003 relied upon mr mr white mr walmsley mr herat cross examined affidavit 12 addition power conferred bys 37 thefederal magistrate court rule 2001 cth thefederal magistrate court rule relevantly provide inrule 16 05that order court may set aside entered order made absence party order obtained fraud case doubt order made absence party order madeex parteon 5 september 2003 also dispute time order made application set aside default judgment neither appears substance application 41 7 13 mr herat pressed cross examination mr kunc reason stating application filed behalf client supporting affidavit prepared support application mr mr white applied set aside judgment supreme court client counter claim exceeding amount due bankruptcy notice mr herat explained relation second matter instructed client counter claim exceeding amount due bankruptcy notice although added perusal relevant court document aware counter claim set proceeding supreme court 14 explained understand significance application form invite applicant identify whether application set aside bankruptcy notice basis counter claim set cross demand could set original action also stated fully appreciate time significance application form form affidavit invite applicant state whether proceeding instituted set aside judgment supporting bankruptcy notice 15 generous view may said mr herat acting swiftly protect interest client order get foot court door made two incorrect statement obviously wrong statement fact applicant applied set aside default judgment mr herat knew correct time made statement le charitable view mr herat knowingly making least one false statement application supporting affidavit 16 discussed argument action mr herat either stupid dishonest mr debuse applicant submitted take view action mr herat merely stupid prepared accept mr herat set intention lying court intention mr debuse submitted lie would quickly found 17 rule 30 02 thefederal magistrate court rulesin fact requires application set aside judgment supporting bankruptcy notice annexed application set aside bankruptcy notice attached anything done substance application mr mr white truth regarding application set aside default judgment would revealed due course accordingly would point mr herat deliberately lying court nevertheless foolish make false statement know time filed document statement application filed set aside default judgment incorrect 18 affidavit mr herat deposes spoke officer registry explained time get document would need file supreme court place particular significance asserted conversation obligation officer court make full frank disclosure court time making application anex partebasis disclosure apparent face document relied upon left undocumented conversation registry officer 19 court expects high standard officer indulgence given self represented litigant occasion occasion probably much indulgence however court expects rather legal practitioner unfortunately expectation met occasion 20 inlindholdt v merritt madden publishing pty limited 2002 fca 260 referred inwasilenia v deputy commissioner taxation 2003 fmca 8 federal court held abuse process anex parteapplication legal practitioner discharge obligation full frank disclosure federal court said occasion 45 party applies ex parte order exercise judicial quasi judicial power required meet high standard candour responsibility bringing attention decision maker fact material determination application obligation extends fact absent party present would presumably rely upon defence application existence duty candour limited application court injunctive equitable relief order obtained breach ex parte applicant duty candour almost invariably set aside even fresh application following full disclosure applicant would entitled order similar term 21 mr debuse submitted case mr mr white would entitled order similar term application set aside bankruptcy notice substance founded upon proposition debt claimed bankruptcy notice due said basis application made set aside default judgment 22 may theory arguable nothing said ground setting aside bankruptcy notice application mr herat supporting affidavit argument raised orally afternoon 23 view 41 6a thebankruptcy actprovides possibility extension time compliance bankruptcy notice limited circumstance circumstance power extend time discretion court one circumstance discretion may exercised proceeding set aside judgment order respect bankruptcy notice issued instituted debtor time fixed compliance bankruptcy notice expired clearly fact occurred prior filing application 5 september 2003 24 another circumstance may support extension time application made court set aside bankruptcy notice application filed set aside judgment supporting bankruptcy notice one would also expect application set aside bankruptcy notice however 41 6a b work circumstance application may properly made set aside bankruptcy notice example notice may defective 25 case circumstance supporting exercise discretion unders 41 6a b identified application supporting affidavit advanced date proceeding application independently bare assertion relevant exercise discretion pursuant tos 41 6a mr herat lack candour proceeding leading exercise discretion unders 41 6a abuse process 26 addition accept court could appropriate circumstance exercise discretion extend time notwithstanding abuse process appropriate case action party retaining solicitor entitled expect solicitor act competently good faith behalf mr herat proceeding act competently instituted proceeding factual basis exist also instituted proceeding legal basis exist reference requirement ofs 41 7 thebankruptcy act 27 setting aside extension time order language ofs 37 rescission order time made adverse impact mr mr white committed act bankruptcy however choice retain mr herat must bear consequence step taken behalf also must bear mind interest creditor hawkesbury city council indeed creditor might adversely affected extension time compliance bankruptcy notice granted 28 heard submission language ofs 37 1 difference rescission variation discharge order taken mr kunc particular decision federal court inre baker ex parte tle electrical pty limited 1988 79 alr 445 particular page 447 accept authority order rescinded unders 37it rescindedab initio hand order discharged discharged date discharge 29 find application made 5 september 2003 extension time abuse process materially false statement made application supporting affidavit mr herat discharge obligation full frank disclosure anex parteproceeding 30 proceeding abuse process satisfied order made day rescindedab initio persuaded order made extend time compliance bankruptcy notice consequence act bankruptcy committed 10 september 2003 time compliance bankruptcy notice expired 31 question whether application dismissed entirety also question cost applicant pursuing proceeding set aside judgment supporting bankruptcy notice possible proceeding may successful reasonably arguable circumstance dismiss application set aside bankruptcy notice entirety given applicant successful setting aside default judgment basis bankruptcy notice fall away however consequence recision order make act bankruptcy committed main purpose debtor application lost 32 also accept mr kunc submission material difference quality bankruptcy notice creditor petition latter successful lead sequestration order obviously serious consequence debtor former may consequence particular debtor particular circumstance le serious matter applicant successful setting aside default judgment basis bankruptcy proceeding based upon default judgment see sufficient reason leave application set aside bankruptcy notice foot 33 therefore dismiss application 34 question cost mr kunc submits award cost indemnity basis accept submission application filed term filed supporting affidavit presented form presented respondent council put trouble expense dealing order extension time compliance bankruptcy notice circumstance order made made false factual basis council also successful disposing application set aside bankruptcy notice 35 given circumstance application presented extension time granted view necessary appropriate court make cost order indemnity basis express disapproval therefore order application filed 5 september 2003 dismissed order made 5 september 2003 extend time compliance bankruptcy notice rescinded pursuant tos 37 1 thebankruptcy actand applicant pay respondent cost incidental application indemnity basis adjourn application cost order solicitor applicant direction 9 30am 27 october 2003 certify preceding thirty five 35 paragraph true copy reason judgment driver fmassociate date 3 october 2003

Specialty Packaging Group Pty Ltd T_A Opal Specialty Packaging [2023] FWCA 2689 (23 August 2023).txt

specialty packaging group pty ltd opal specialty packaging 2023 fwca 2689 23 august 2023 last updated 24 august 2023 2023 fwca 2689fair work commissiondecisionfair work act 2009s 185 enterprise agreementspecialty packaging group pty ltd opal specialty packaging ag2023 2684 specialty packaging group queensland enterprise agreement 2023graphic art industrycommissioner pericamelbourne 23 august 2023application approval specialty packaging group queensland enterprise agreement 2023 1 application made approval enterprise agreement known thespecialty packaging group queensland enterprise agreement 2023 agreement application made undersection 185of thefair work act 2009 act agreement single enterprise agreement 2 thefair work legislation amendment secure job better pay act 2022 cth amending act made number change enterprise agreement approval process part 2 4 act commenced operation 6 june 2023 3 transitional amendment made part 14 schedule 1 amending act genuine agreement requirement agreement approval application apply notification time agreement 6 june 2023 genuine agreement provision part 2 4 act 6 june 2023 continue apply relation agreement approval application notification time agreement wasbefore6 june 2023 notification time agreement 31 may 2023 4 transitional arrangement part 16 schedule 1 amending act amendment made better overall test requirement agreement approval application apply agreement made 6 june 2023 agreement made 26 july 2023 follows amending act better overall test set section 193 193a act applies 5 observe certain provision agreement likely inconsistent national employment standard however noting clause 1 4 1 agreement satisfied beneficial entitlement national employment standard prevail inconsistency agreement 6 satisfied requirement section 186 187 188 190 193 193a relevant application approval met agreement cover employee employer however taking account factor section 186 3 3a satisfied group employee fairly chosen 7 agreement approved today 23 august 2023 operate 30 august 2023 required section 54 act nominal expiry date 23 august 2027 commissionerprinted authority commonwealth government printer ae521236pr765470

Tabet v APD Parcel Delivery Pty Ltd [2014] SAIRC 30 (23 September 2014).txt

tabet v apd parcel delivery pty ltd 2014 sairc 30 23 september 2014 last updated 8 october 2014tabet v apd parcel delivery pty ltd 2014 sairc 30industrial relation court sa tabet dannyvapd parcel delivery pty ltdjurisdiction money claimfile 5831 2013hearing date 15 may final written submission 26 june 2014 judgment industrial magistrate lieschkedelivered 23 september 2014catchwords monetary claim annual leave personal leave superannuation whether contractual relationship whether contract employment written contract applicant wife dealing applicant respondent personally approved applicant driver delivery driver supplied maintained van bought right exiting driver work territory split income wife delivery work held contractual relationship contract employment claim dismissedrepresentation counsel applicant mr fieldrespondent m k clarksolicitors applicant webster lawyersrespondent grope hamilton lawyersthe applicant claim 17 235 way annual leave personal leave superannuation also claim pecuniary penalty contravention corresponding national employment standard basis claim applicant assertion employee respondent rather independent contractor respondent offer two defence firstly contractual relationship applicant instead entered contract applicant wife performance delivery service alternative asserts contract employment undisputed background circumstance applicant personally performed parcel delivery service full time basis two year fixed territory work used van wife paid running expense prior commencement arrangement november 2011 applicant wife acquired right licence perform work respondent paying 8 000 person previously performed parcel delivery duty respondent territory written agreement respondent applicant wife describing party independent contractor signed shortly commencement arrangement respondent specifically approved applicant driver informed applicant wife australia event licensed drive motor vehicle arrangement concluded two year later respondent terminating arrangement without applicant wife receiving 8 000 respondent future driver territory applicant however retain 1 000 non refundable deposit person prior agreement termination investigating acquiring applicant right work respondent territory also prior termination applicant made attempt advertise delivery right sale although process controlled respondent issue determination firstly whether intention create binding legal relation respondent applicant whether contractual relation properly characterised law contract service employment contract provision service independent contractor determining matter court received oral evidence applicant luke shearer managing director respondent court also received document relevant arrangement assessing evidence matter essential fact dispute minor dispute whether applicant informed certain deduction fee charged respondent respondent signed agreement explanation given applicant asking wife name used written agreement dispute need resolved determine critical issue contract applicant respondent applicant first approached mr shearer indicated interested buying run heard available pre contract discussion held personally applicant mr shearer stage mr shearer meet speak applicant wife applicant told needed undergo period training exiting driver following training wished proceed buying run met mr shearer personal approval contract would completed contract prepared applicant asked wife nominated contracting party rather mr shearer version applicant requested undischarged bankrupt applicant version wished wife nominated party interest business undischarged bankrupt problem given likely low income view necessary resolve difference relevant point mr shearer agreed applicant nominal party contract would mr tabet wife applicant completed required period unpaid training exiting driver received mr shearer approval buy run allocated full time delivery work respondent gave instruction direct applicant attempt communicate applicant wife shortly arrangement terminated respondent two year later mr shearer practice require contractor provide personal detail required applicant provide driver licence number remaining demerit point affirmative written answer question whether agreed abide oh 21 oh reg 1 2 2 applicant asked authorise respondent produce tax invoice work pay period applicant also asked requirement position average physical fitness enabling lift repetitively 16 20kg anything medical history would limit undertaking position applying applicant answered signed form respondent argues applicant wife name signature written contract prof legal relationship respondent applicant wife disagree respondent time dealt applicant included applicant wife original document request despite communication respondent required personal particular answer question applicant applicant required undergo training approved respondent applicant issued uniform applicant wife knowingly treated respondent applicant agent opinion respondent intended enter legal relationship approved driver territory regard driver nominated agent find intended enter contractual relationship applicant personally employee independent contractor law requires court take account whole relevant circumstance balance indicia favour employment favour independent contractor status court must apply common law control business test many circumstance support contract employment delivery duty performed personally mr tabet specifically approved respondent driver duty performed exclusive full time basis work employment eg even pizza delivery needed respondent approval applicant wear respondent uniform conduct respondent customer prescribed way subject disciplinary action withholding 50 per fortnight performance payment threat termination arrangement arrangement ultimately terminated due respondent dissatisfaction aspect applicant conduct although nature respondent concern disputed applicant paid regular fortnightly payment applicant ability set price price delivery item exclusively set respondent clause 2 1 asserted right unilaterally change rate remuneration upon one month written notice respondent deliberately kept charge customer secret driver respondent supervised payment relied upon sham device recipient created tax invoice create appearance genuine commercial invoicing respondent unilaterally imposed fee referred written agreement simply deducted without consent agreed delivery payment fee included fortnightly charge use handheld gps data device agreement fact stated would provided without charge form insurance addition respondent unilaterally imposed charge approximately 600 sign affixed applicant van respondent exercised high degree control way work performed customer interaction driver van presented part respondent business respondent set time completion delivery determined set time attendance premise required leave approved would three four driver 90 work unauthorised leave would penalised substantial charge imposed without agreement without practice mentioned written agreement factor indicating relationship independent contractor follows income delivery work deduction expense effectively split applicant wife partnership applicant wife income tax return recorded delivery income le expense including substantial expense applicant driving fee effective income splitting gave modest financial benefit applicant wife accept applicant evidence relied upon professional accounting advice arrangement nonetheless acceptable resulted financial benefit contrasted tax treatment employment income applicant supplied capital equipment form commercial cargo van bought 7 200 also met cost maintaining operating van applicant also paid 8 000 right given full time delivery work respondent territory known run 31 8 000 forwarded previous operator run respondent acting agent evidence exiting driver acquired right 8 000 fee premium levy paid applicant respondent nature right acquired applicant insecure unclear respondent reserved right clause 1 5 written agreement change boundary territory discretion allocated another driver perform delivery applicant territory without consent despite circumstance payment still character capital investment chance retaining increasing value right treated applicant respondent ongoing value respondent terminated agreement applicant forfeited right delivery work evidenced applicant attempt sell run another driver advertising run sale respondent offer buy run albeit reduced price 4 500 find limited opportunity applicant profit good management operation vehicle good performance delivery duty within territory good management van could reduce expense although running cost largely determined distance travelled applicant limited ability increase delivery territory positive interaction customer respect respondent treated applicant independent contractor matter deducting income tax paying worker compensation levy permitting applicant retain possession collected parcel overnight conclusionif exclude consideration supply van payment marketable right given delivery work run 31 income splitting would conclude arrangement one employment combined factor give arrangement character small business despite dependent marginal business sufficient characteristic recognised australian common law opinion factor outweigh considerable employment like control exercised respondent applicant considering circumstance entirety conclude applicant engaged contract service employee accordingly dismiss claim publication reasonsit practice court publish reason decision full internet party person contends reason decision published full party person must make application within seven day delivery reason application shall application direction supporting affidavit addressed presiding member application lodged within time specified reason published accordance court usual practice

Dennis William Mcgrath v Mmi Workers Compensation (1997_13859) [1997] VICCAT 1169 (15 December 1997).txt

administrative appeal tribunal victoria general division melbourne applicant respondent date decisionno 1997 13859 dennis william mcgrath mmi worker compensation deputy president b mccarthy 1 day december 1997 decision decision tribunal 1 decision respondent made 3rd march 1996 set aside 2 respondent pay applicant reasonable medical like expense pursuant provision section 99 accident compensation act 1985 respect procedure total hip arthroplasty right hip joint performed mr neil cullen 4th march 1997 expense fixed sum 19 750 10 3 respondent pay cost applicant taxed default agreement party county court scale administrative appeal tribunal victoria 1997 13859 general division melbourne applicant dennis william mcgrath respondent mm worker compensation deputy president b mccarthy 5 sday december 1997 date decision reason decision application dennis william mcgrath review decision respondent mmi worker compensation made 3rd march 1996 rejecting liability meet cost total hip arthroplasty right hip joint proposed mr neil cullen applicant orthopaedic surgeon applicant sought conciliation required section 99aa 1 b 23rd december 1996 conciliator certified unable bring party agreement 28th february 1997 applicant filed application review tribunal applicant gave evidence oath impressive credible witness solicitor prepared detailed statement type work performed bread carter employed tip top bakery march 1986 april 1995 adopted statement witness box left doubt performed heavy work period nine year included inter alia lifting carrying crate bread crumpet muffin roll weighing two kilogram thirteen kilogram delivery round involved approximately 40 separate delivery school private hospital milk bar supermarket part duty load various crate bread muffin like loading bay onto truck used delivery purpose loading ramp ground level lift crate truck step truck complete loading crate stacked ten foot high pushed forward front vehicle estimated order complete loading normally entered rear vehicle approximately 20 time mounting two separate step ground running board running board tray truck job also involved loading return bread various customer well empty crate upon returning bakery empty crate taken washing area unloaded hand whilst return bread taken another area unloaded hand normal delivery day estimated approximately 1 000 unit weighing 1100 kilogram delivered 40 outlet delivery estimated would exit enter vehicle approximately six time taking account initial loading 40 delivery unloading estimated entered exited vehicle 280 time per day approximately worked six day week 46 week year calculated entered exited vehicle approximately 77 280 time per annum particular set statement copy served upon solicitor respondent noteworthy cross examined counsel respondent duty tip top various estimate calculation set also noteworthy respondent called evidence employer applicant credible witness hesitation accepting totality evidence matter applicant born 7th september 1946 51 year age age 14 year played football different level attaining age 38 year 18 year age injured right knee whilst playing football subsequently underwent operation removal cartilage right knee joint considered result good indication may gained fact continued play game next 20 year one point career played oakleigh victorian football association time run three time week distance three four kilometre golf sporting activity prior commencing employment tip top claimed problem either right knee right hip employer arranged undergo full medical examination following offered job accepted 1989 began suffer pain right knee claimed benefit pursuant section 99 accident compensation act 1985 claim accepted arthroscopic surgery performed right knee joint able resume normal employment 1993 began suffer intermittent pain right groin noticed loading motor vehicle pain settled whilst driving returned completed daily delivery time passed pain became severe le intermittent approximately december 1994 consulted general practitioner dr hastings arranged x ray made claim medical like expense apparently basis injury right knee hip groin liability accepted respondent 13th april 1995 pain resolve referred employer medical adviser treated initially acupuncture lead resolution symptom ultimately referred mr neil cullen orthopaedic surgeon opinion saw 14th november 1995 advised stage would require operation replace right hip joint mr cullen prepared perform procedure pain reached point could longer bear april 1995 applicant transferred bread delivery light work cleaner around bakery sought change ongoing symptom continued perform cleaning duty february 1997 slipped twisted whilst cleaning large metal plate mop hip became painful unable move eventually sister charge medical centre work assisted car drove mr cullen surgery moved around use crutch underwent surgery approximately three week later 4th march 1997 remained work 7th july 1997 resumed normal duty cleaner operation relieved pain completely although hip movement still restricted belief never able resume employment bread carter applicant solicitor prepared detailed statement cost involved operation main paid medicare medibank private organisation provided full detail payment made behalf applicant particular attached itemised list prepared applicant solicitor challenge medical like expense amounting 19 750 10 cross examination applicant counsel respondent sporting activity age 14 year onwards resulting confirmation injury ever suffered prior commencing employment tip top injury right knee occurred age 18 year three medical practitioner gave evidence behalf applicant mr combe mr phillips examined medico legal purpose expressed doubt duty bread carter led aggravation acceleration osteo arthritic condition right hip unknown origin aggravation acceleration ultimately led need surgery mr combe stated report 10th october 1997 admitted evidence early 1993 developed right hip pain continued became severe pelvic x ray 28 12 94 showed osteo arthritis right hip left hip change marked x ray 2 1 97 right hip replacement march 1997 good result view right hip osteo arthritis either initiated aggravated accelerated work bread carter similar osteo arthritis right knee believe right hip osteo arthritis secondary right knee condition given nature work bread carter believe work divorced development right hip osteo arthritis believe right hip osteo arthritis idiopathic impossible know right hip arthritic process commenced mind relevant symptom commenced early 1993 mr combe opinion need operation advanced approximately 15 year mr phillips prepared quantify acceleration reference particular time period neither considered sporting activity injury right knee age 18 year played part development arthritic condition right hip neither doubt continual stepping rear motor vehicle loading unloading purpose described applicant statement contributed significantly aggravation acceleration condition mr phillips seen applicant 18th june 1996 therefore prior surgery performed mr cullen report made following comment question addressed whether client osteo arthritis caused work one could say however history gave accurate description work accurate think work significant contributing factor work clerk carrying tonne half bread day getting vehicle 200 300 time day getting step three foot high probably would situation thing help total hip replacement mr cullen gave evidence oath seen applicant 1995 ultimately performed total hip arthroplasty 4th march 1997 felt injury right knee followed surgery may altered gait pattern extent factor development arthritic condition right hip doubt employment tip top factor actual development condition quote page 2 report follows would opinion man osteo arthritis hip gradual onset likely consequence sporting activity youth footballer sustain internal derangement knee culminating later need surgery pattern development arthritic process one gradual deterioration point symptom begin may combination stiffness pain deformity gradually symptom become apparent persistent finally consistent comment made mr menelaus therefore arthritic process probably commenced prior september 1985 without symptom recently would opinion likely correct heavy nature mr mcgrath work probably would position requiring total hip replacement cross examination mr cullen emphasised view nature physical work resulted aggravation acceleration symptom emanating hip joint leading need surgery reasonable probability view work significant contributing factor witness called behalf respondent mr malcolm melenaus orthopaedic surgeon examined applicant behalf respondent three occasion namely 20th february 1996 18th november 1996 27th february 1997 prepared three report admitted evidence initially taken short history applicant employment tip top noted duty bread carting relieving worker loading truck crate containing 12 load bread getting 30 40 delivery shop 6 day week history took date first examination 20th february 1996 concluded applicant suffering idiopathic osteo arthritis hip employment contributing factor result advised respondent liable meet cost proposed operation replace right hip joint examined 18th november 1996 report date confirmed earlier opinion maintained opinion following final examination 27th february 1997 suggestion ever seen detailed statement applicant duty bread carter put either examination chief cross examination doubt would caused change opinion put quite simply symptom began relationship factor however concede course disease affected symptom heavy work may affect symptom also agreed bread carting might increase symptom whilst actual manual work performed increase would extend short period work ceased view work aggravate disease symptom emanating respondent admitted evidence consent report mr clive jones examined applicant respondent 3rd july 1997 felt surgical procedure satisfactory term outcome whilst underlying arthritic condition work related saw employment contributing factor felt 50 current incapacity regarded work related whilst 50 related normal ageing change hip despite conclusion advised respondent believe liable expense surgical procedure considering medical evidence seems mr menelaus odd man view accord opinion expressed medical practitioner appeared concession cross examination heavy manual work may affect symptom arising osteo arthritic condition fact support applicant case mr jones albeit unwittingly also supported applicant concession 50 current incapacity regarded work related may reasonably extrapolated mean type work performed bread carter aggravated accelerated exacerbated symptom thus leading necessity operation total hip replacement turn incapacity 20 employment contributed 50 qualified advise respondent requiring legal position liability otherwise surgical expense illustrates danger allowing medical practitioner encroach onto field expertise also express opinion clearly entitled make however little doubt opinion gratefully accepted respondent proceeding section 99 1 accident compensation act 1985 provides follows caused worker injury entitles worker compensation authority authorised insurer self insurer employer respect employer liability section 125 1 hi 125a 3 c shall liable pay compensation reasonable cost road accident rescue service medical hospital nursing personal household occupational rehabilitation ambulance service received injury term injury defined section 5 act following term injury mean physical mental injury without limiting generality foregoing includes industrial deafness b c recurrence aggravation acceleration exacerbation deterioration pre existing injury disease worker employment significant contributing factor recurrence aggravation acceleration exacerbation deterioration referred number occasion recently decision honour judge rend harding v cic worker compensation vic ltd transwest haulage pty ltd delivered 1st september 1995 many issue honour cannot agitated tribunal honour consider length meaning expression recurrence aggravation acceleration exacerbation deterioration pre existing injury disease relied upon interpretation concept high court australia matter federal broom company pty ltd v semiitch 101 clr 626 page 637 windeyer j judgement stated question whether aggravation acceleration exacerbation deterioration mental disorder think essentially one fact appeal kitto j page 634 commented follows four substantive ie aggravation acceleration exacerbation deterioration synonymous court assume differing shade meaning susceptible draftsman chosen employ given true force asking simply whether disease made worse moffitt j placed least emphasis upon word exacerbation seems word critical word case applied disease properly used refer effect disease produce victim rather advance disease serious stage development technical word requiring scientific explication application ordinary english word applied court proved fact established established beyond question commission evidence psychiatrist called incident 1st december 1960 acted upon pre existing condition mental illness disease produce delusion causing incapacity work respondent made clear case exacerbation mental disease according ordinary meaning word moffit j right think saying exacerbation disease experience disease patient increased intensified increase intensifying symptom word directed individual effect disease upon rather concerned underlying mechanism accordingly salt applied open wound making wound worse causing smart smarted proper say exacerbation wound similar view expressed windeyer j page 636 et seq found impossible conceive malady distinct manifestation application clear applicant suffering disease osteo arthritic condition right hip progressed asymptomatic state situation increasing pain discomfort final situation operative intervention offered chance amelioration view applicant clearly shown employment significant contributing factor exacerbation disease process right constitutes injury within definition word contained section 5 accident compensation act injury therefore compensable work significant contributing factor exacerbation finding clearly supported mr jones view however application applicant also relied upon aggravation acceleration symptom injury accordance section 5 concept supported messrs cullen combe phillips find employment significant contributing factor circumstance prefer opinion messrs cullen combe phillips supported extent least mr jones accept contrary opinion expounded mr melanaus seemed proper appreciation heavy repetitive work performed applicant bread carter although suspect even fully aware would altered opinion view decision respondent set aside order also order respondent pay applicant reasonable medical like expense pursuant provision section 99 accident compensation act 1985 respect procedure total hip arthroplasty right hip joint performed mr neil cullen 4th march 1997 expense fixed sum 19 750 10 pursuant provision section 99a accident compensation act 1985 order 16 respondent pay cost applicant taxed default agreement party county court scale appearance applicant respondentmr r holdsworth instructed hughes solicitor m malpas instructed mill oakley date hearing 10th december 1997 certificate certify preceding 16 page true correct copy decision deputy president mr b mccarthy register

Custom Design Paving Pty Ltd v Whittlesea CC [2019] VCAT 656 (6 May 2019).txt

custom design paving pty ltd v whittlesea cc 2019 vcat 656 6 may 2019 last updated 8 may 2019victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference p1971 2018permit application 716774catchwordssection 77of theplanning environment act 1987 whittlesea planning scheme six dwelling lot steep site provision carparking traffic access neighbourhood characterapplicantcustom design paving pty ltdresponsible authoritywhittlesea city councilrespondentpam wardle otherssubject land25 neilsen crescentbundoora vic 3083where heldmelbournebeforee bensz memberhearing typehearingdate hearing15 april 2019date order6 may 2019citationcustom design paving pty ltd v whittlesea cc 2019 vcat 656orderpermit grantedin application p1971 2018 decision responsible authority set aside planning permit application 716774 permit granted directed issued land 25 neilsen crescent bundoora accordance endorsed plan condition set appendix permit allows construction six dwelling general residential zone e benszmemberappearancesfor applicantmark waldron town planner called damien hancox give traffic parking evidence responsible authorityantoinette camille town plannerfor respondentspam wardle personinformationdescription proposalto construct six double storey dwelling land nature proceedingapplication undersection 77of theplanning environment act 1987 review refusal grant permit planning schemewhittlesea planning schemezone overlaysgeneral residential zonepermit requirementsclause 32 08 6 construct two dwelling land relevant scheme policy provisionsclauses 11 15 16 18 19 21 22 52 55 65 land descriptionthe topography area generally hilly steep part darebin creek trail south site site irregular shape frontage 13 7 slope steeply neilsen crescent part rear boundary abutting park land end holt parade site area 1309 m2and currently contains single brick dwelling close street east single storey brick dwelling east another large irregular lot containing five double storey dwelling stepped site immediate west two dwelling another steep lot title front setback order 7m varying level landscaping evidenttribunal inspectionan unaccompanied inspection subject site surrounding area undertaken 24 april 2019 reason 1 appeal appeal brought permit applicant refusal city whittlesea grant permit six two level dwelling land nine statement ground lodged tribunal supporting council refusal application council ground mainly around non compliance provision clause 55 rescode clause 52 relating provision car parking resulting overdevelopment site heard evidence party viewed site surrounding area consider matter determined policy support development land reasonable level compliance rescode traffic parking concern policy support satisfied given zoning land general residential zone encourages housing growth look increasing housing density established urban area site location access facility mean site suitable form higher density development consistent council housing diversity strategy 2013 2033 reference document planning scheme council determined site within suburban residential change area designation applied site 15 minute walk transport activity centre however medium density development possible site location given ground refusal council form development address response character area minimise site impact neighbour note number medium density development locality either completed construction including 11 27 35 neilsen crescent 104 holt street 20 22 norris crescent 17 glen crescent tend support view reasonable level compliance rescode adjoining resident council concern regarding compliance element rescode adjoining resident concern related primarily overshadowing overlooking property east west despite concern satisfied amended plan address majority concern fine tuning required addressed permit condition achieve compliance rescode standard passive surveillance parkland south site dwelling 5 6 encouraged passive security perspective suitable screening proposed protect privacy 27 neilsen place 102 holt parade furthermore satisfied dwelling cut site lowland flat roof minimise potential overshadowing property west minimal impact amenity due sufficient unshaded secluded private open space available 27 neilsen place 102 holt parade required rescode resident considered materiality proposed building inappropriate majority dwelling warranwood estate brick tile apart use colorbond roofing particular concern regarding material facade particularly dwelling vertical cladding upper level satisfied pitched roof dwelling 1 4 colorbond appropriately respond roof form area however require permit condition requiring material finish board us alternative external cladding material appropriate neighbourhood context concern objector issue two storey nature proposed dwelling considered respond neighbourhood character area however two storey form accepted feature residential area especially steep site require site cut minimise bulk lower two dwelling flat roof form minimise bulk site impact well site street frontage therefore satisfactory response provided external materiality colour pallet consistent prevailing built form character area cannot refused basis alone council major concern related setback dwelling 1 street saying set toward street given slope land entry dwelling visible street 11 9 lower finished level neilsen crescent footpath permit applicant argued setback proposed average setback dwelling either side 23 27 neilsen crescent 7 9 mr waldon argued setback allowed provision suitable canopy tree within front setback although front setback exceeds minimum requirement rescode council indicated suitable response character area required retaining wall 0 7m 0 8 street frontage council draft planning permit condition required dwelling 1 moved closer street floor level raised better integrate street satisfied approach endorse change plan noting 7 2 setback still sufficient opportunity plant canopy tree within front setback regard setback proposal note front dwelling offset side boundary one garage dwelling 5 adjacent site western boundary visible street overall height proposal exceed 11 site coverage relatively low medium density development 37 4 regard secluded private open space area excess 40 m² exceed current standard b28 consider appropriate given topography site need make area level usable resident rear setback average 4 given triangular boundary rear dwelling satisfied sufficient space available canopy tree planting order 6 mature height proposal 35 2 garden area together 1 wide planting strip along driveway east boundary sufficient scope available plant screening vegetation driveway traffic parking concernsit proposed six dwelling provided mix single double garage tandem space one visitor space mid way block provision bay supported council addition permit condition permit applicant agreed apart technical non compliance regarding car parking site need passing bay near front site traffic surrounding road network site potential increase traffic ground refusal put forward council council traffic engineer concerned minimal increase traffic generated site order 33 vehicle per day satisfied surrounding road network capable coping increase without detriment safety noted change legislation regarding provision parking dwelling visitor space longer required given location site undulating nature street network circumstance satisfied provision one space appropriate consider go way addressing concern resident objector area m wardle life madison court represented resident court number resident neilsen crescent afield mersey street raised number concern regarding access site layout arrangement dwelling vehicular manoeuvring proposed garage mr hancox statement evidence demonstrated satisfaction access egress garage tandem space tight primarily due topography site complied standard required planning scheme furthermore resident dwelling would soon become familiar access parking arrangement home cause congestion vehicle within site resident main concern congestion surrounding street network car parked side street due narrowness street network concern resident development park street rather using designated garage tandem space garage would used storage purpose council requires relocation storage facility accessible therefore usable endorse position street parking visitor also raising regard site however one visitor space proposed site parking provision addition one visitor car space compliant tribunal cannot require provided resident concern regarding extent street parking neilsen crescent surrounding street causing problem large vehicle caravan matter need taken council traffic engineer possibly consider parking restriction traffic calming measure street satisfied parking arrangement proposed six dwelling satisfactory inclusion one visitor space site vehicular passing bay opposite garage dwelling 1 2 condition parking requirement met issuesthe adjoining objector raised concern regarding water drainage issue particularly potential flooding land slippage concerned clear indication planning application plan amended issue would addressed note level detail required planning permit application stage correctly dealt building permit application stage detailed drainage design undertaken however general principle surface run retained within site directed appropriate point discharge council stormwater drainage system run roof area collected rainwater tank reuse within garden proposed dwelling condition 1 council draft condition requires contribution towards drainage infrastructure required provision clause 45 06 devaluation property loss city view matter dealt decision property devaluation outside scope matter considered division tribunal note reference within whittlesea planning scheme deal right access view e benszmemberappendix permit conditionspermit application 716774land 25 neilsen crescentbundoora vic 3083what permit allowsin accordance endorsed plan construction six dwelling reduction visitor carparking general residential zone condition payment requiredprior endorsement plan required condition 2 permit permit holder must pay council contribution drainage pursuant clause 45 06 whittlesea planning scheme drainage contribution subject consumer price index cpi applicable time payment plan requiredbefore development hereby permitted start one digital copy amended plan satisfaction responsible authority must submitted approved responsible authority approved plan endorsed form part permit plan must generally accordance architectural plan ref 16 1437 sheet no tp1 tp6 revision c dated 13 12 18 prepared beyond design group pty ltd modified show dwelling 1 setback 7 2 metre neilsen crescent improve dwelling integration street b finished floor level dwelling 1 increased improve dwelling integration street c grade pedestrian path dwelling 1 anti slip surfacing width 1 5 metre along shared accessway together appropriate line marking improve safe pedestrian access e north facing window bedroom no 1 2 dwelling 4 f fin screen planter box applied south facing balcony dwelling no 5 6 maximise internal daylight amenity overlooking onto abutting open space holt park confining overlooking secluded private open space site adjoining land west g external storage shed dwelling 3 relocated grade associated garage h direct access garage dwelling 5 associated external storage shed waste bin storage area dwelling 4 relocated allow direct access shared accessway j storage bin location rationalised maximise useability secluded private open space dwelling k external material finish board sample show colour pallet consistent dwelling locality vertical cladding used upper level dwelling l landscape plan accordance condition 3 permit concurrent endorsement plan condition 2 development hereby permitted commences one digital copy landscape plan prepared suitably qualified experienced landscape designer satisfaction responsible authority must submitted approved responsible authority approved plan endorsed form part permit landscape plan must show survey existing vegetation natural feature b area area set aside landscaping c schedule proposed tree shrub small tree ground cover location specie planted location area covered grass lawn surface material e paving retaining wall fence design detail landscape work including area cut fill f appropriate irrigation system g provision canopy tree throughout development appropriate including front setback area proposed building layout alteredthe development allowed permit shown plan schedule endorsed accompany permit must amended reason without prior written consent responsible authority development started must continued completed satisfaction responsible authority landscapingprior occupation proposed dwelling hereby approved landscaping work shown endorsed plan must completed maintained satisfaction responsible authority action use commencesprior occupation proposed dwelling hereby approved car parking area accessways must drained fully sealed constructed asphalt interlocking paving brick coloured concrete similar material satisfaction responsible authority area set aside car parking measure must taken satisfaction responsible authority prevent damage fence landscaped area vehicular access site must way vehicle crossing constructed accordance council vehicle crossing specification suit proposed driveway vehicle using crossing location design construction vehicle crossing must approved responsible authority existing unused redundant crossing must removed replaced concrete kerb channel nature strip satisfaction responsible authority vehicle crossing work carried council supervision road opening permit permit holder shall responsible meet cost associated reinstatement alteration council public authority asset deemed necessary authority result development permit holder shall responsible obtaining prior specific written approval work involving alteration council public authority asset prior occupation dwelling subject site letter box house number satisfaction responsible authority must provided dwelling time construction phase development permit holder must take measure ensure pedestrian able use safety footpath along boundary site upon completion building work authorised permit permit holder must notify responsible authority satisfactory completion development compliance relevant condition engineeringbefore starting building work engineering plan showing properly prepared design computation internal drainage method disposal stormwater roofed sealed area including use site detention system required must submitted council approval internal drainage work must completed council satisfaction prior using occupying building site prior occupation proposed dwelling hereby approved permit holder required construct cost council drainage work subject site council nominated point discharge drainage work must designed qualified engineer submitted approved council computation also required demonstrate drainage system overloaded new development construction drainage system must carried accordance council specification council supervision prior occupation proposed dwelling hereby approved reticulated water sewerage gas electricity service must constructed available satisfaction responsible authority general amenity construction worksany litter generated building activity site shall collected stored appropriate enclosure complies council code practice building development site enclosure shall regularly emptied maintained litter overspill onto adjoining land prior occupation use building litter shall completely removed site construction phase truck wheel washing facility similar device must installed used satisfaction responsible authority vehicle leaving site deposit mud material roadway mud material deposited roadway result construction work site must cleaned satisfaction responsible authority within two hour deposited permit expiryin accordance theplanning environment act 1987 permit development expires approved development start within two year date permit b approved development completed within four year date permit responsible authority may extend period referred request made writing request must made within six month permit expiry date development yet started within 12 month permit expiry date development allowed permit lawfully started permit expires end condition 1 submission evidence party supporting exhibit given hearing statement ground filed considered determination proceeding accordance practice tribunal material cited referred reason

DPP v Traynor [2012] VSC 100 (16 March 2012).txt

dpp v traynor 2012 vsc 100 16 march 2012 last updated 21 march 2012in supreme court victorianot restrictedat melbournecriminal divisionno cr 2011 0096director public prosecutionsvbonnie traynor judge kaye jwhere held melbournedate hearing 16 march 2012date ruling 16 march 2012case may cited dpp v traynor ruling medium neutral citation 2012 vsc 100 criminal law intentionally causing serious injury plea guilty reason mental impairment consent hearing 21crimes mental impairment unfitness tried act 1997 defence established verdict guilty mental impairment recorded accused declared liable supervision appearance counselsolicitorsfor crownmr j mcardle qcoffice public prosecutionsfor accusedmr r h lawrencedoogue brianhis honour 1 accused bonnie traynor pleaded guilty indictment contains one count intentionally causing serious injury father brett traynor 3 april 2011 mr traynor premise 27 hutton street dandenong accused defence charge time offence mentally impaired pursuant 20 crime mental impairment fitness tried act 1997 2 jury empanelled matter prosecution defence agreed proposed evidence established defence mental impairment therefore common ground prosecution defence pursuant 21 4 act hear evidence satisfied direct verdict guilty mental impairment recorded 3 time offence accused bonnie traynor 23 year age treated schizophrenia since 2008 first hospitalised 2009 acacia ward dandenong hospital several week 4 since occasion four inpatient admission last admission offence occurred october 2010 accused ceased take medication prescribed condition 5 accused also long history alcohol abuse age 14 year drug abuse age 15 year intervening year used cannabis amphetamine methylamphetamine ecstasy lsd result medical condition accused experienced number delusional belief member family particular father 6 incident respect accused charged took place 2 50 sunday 3 april 2011 afternoon previous day returned victoria queensland request friend jamie taylor boyfriend jason stygall picked accused dandenong railway station stopped supermarket 7 pm taylor stygall made purchase accused acquired bottle methylated spirit 7 returned taylor stygall house hammond street dandenong consumed alcohol evening accused also took ecstasy tablet time began talking jamie taylor niece jade taylor incident believed involved relating father conversation told jade jamie taylor make right fix thing 8 shortly 2 next morning 3 april accused asked jade jamie taylor wanted go walk agreed three went walk 9 left house accused concealed bottle methylated spirit front jacket three female walked centrelink office dandenong accused walked towards father address 27 hutton street 10 time brett traynor asleep bed heard noise breaking glass went investigate saw accused lying bench seat beside back door decking rear home brett traynor asked accused responded come get threw methylated spirit onto mr traynor chest area set alight using cigarette lighter accused made way back hammond road met jade jamie taylor told tried light fire 11 meantime police arrived mr traynor house poured water using garden hose conveyed ambulance hospital third degree burn 27 per cent body particular burn face upper chest back right arm patch left arm airway conveyed alfred hospital remained intensive care unit period 12 day discharged hospital five week 12 accused ultimately found police 10 20 next day hammond road address arrested declined answer question put investigating police 13 fact summarised confirmed evidence today informant senior constable elli based fact satisfied accused performed act act caused serious injury brett traynor also satisfied apart defence mental impairment accused would otherwise considered intended cause serious injury mr traynor 14 order establish defence mental impairment 20 1 act accused must established balance probability know nature quality conduct b know conduct wrong could reason moderate degree sense composure whether conduct perceived reasonable people wrong 15 evidence defence mental impairment consisted first report dr anthony cidoni consultant psychiatrist dated 11 july 22 august 2011 report dr shannon reid consultant psychiatrist 14 november 2011 dr reid consultant forensicare called prosecution give evidence relation report confirmed content evidence today 16 dr cidoni assessed accused 28 june 2011 first report dated 11 july set finding mental state examination together accused relevant background substance abuse background past psychiatric history 17 dr cidoni also noted discussed matter accused charged stated purchased methylated spirit clean ear piercings gone father house shower saw father approach thought would attack also said heard voice telling make thing right hour committed offence 18 first report dr cidoni concluded accused suffered psychiatric illness clear description illness active time offence 19 stated extent defence mental impairment would available might depend upon question whether belief father delusional however also stated appeared even conduct nature expressed delusion elaborated extended story include people systemised persecution relevant auditory hallucination 20 dr cidoni expressed conclusion follows

Serena Minerals Pty Ltd v Audalia Resources Ltd [2017] WAWM 14; [2017] WAMW 13 (1 June 2017).txt

20171 wamw 13 jurisdiction mining warden location perth citation serena mineral pty ltd v audalia resource ltd coram warden maughan heard 25 may 2017 delivered 1 june 2017 file application forfeiture 496809 496810 496811 lease lease e09 1568 e09 1569 e09 1570 serena mineral pty ltd applicant audalia resource ltd objector catchword application forfeiture prima facie case forfeiture made form 5 application security cost tenement holder suuh mum il v ml ih rt tiu id n spage 1 20171 wamw 13 legislation mining act 1978 case referred commercial property pty ltd v tallow nominee pty ltd unreported fasc fc 16 december 1998 library 7427 limelight industry pty ltd v berkeley resource ltd 2014 wan w 11 st clair resource pty ltd v oz youamni gold pty ltd 2016 wanw 20 nova resource nl v french 1995 12 war 50 craig v spargos exploration nl unreported kalgoorlie warden court 22 december 1986 result 1 application dismissed representation counsel applicant respondent solicitor applicant respondentmr papamatheos mr gerus jeremy shervington gilbert tobin st ren mmeidk l v atid ili whiil v id page 2 reason decision 2017 wamw 13 introduction 1 application dated 6 december 2016 audalia resource ltd audalia tenement holder application forfeiture seek security cost pursuant regulation 167 mining regulation 1981 amount 83 763 00 amount warden think fit paid director general mine within seven day order 2 consequential order also sought 3 application amended date hearing seek cost sum 46 509 00 4 application opposed serena mineral pty ltd serena matter came hearing time following affidavit tendered filed behalf audalia patrick john tudde 6 december 2016 filed behalf audalia ii brent william butler sworn 14 december 2016 8 may 2017 iii danie jade lukic 24 may 2017 filed behalf serena david peterson 10 april 2017 ii zaffer someya 24 may 2017 5 addition benefit written oral submission behalf audalia serena scfciki mmn ih v amlalm ri mhiuv id doc page 3 6 2017 wamw 13 factual background case audalia hold subject tenement 22 december 2016 relevant expenditure year filed form 5 expenditure report claiming expenditure following term 3 873 46 expenditure requirement 50 000 00 e09 1568 ii 8 754 72 requirement 50 000 00 e09 1569 iii 5 750 42 requirement 50 000 00 e09 1570 7 s98 mining act 1978 provides 98 application forfeiture ground 1 requirement act complied respect expenditure condition applicable exploration licence mining lease person may apply forfeiture licence lease provided section si ieiui miiicm l v amt ili k mhjk page 4 20171 wamw 13 4a warden find holder exploration licence lessee mining lease failed comply requirement mentioned subsection 1 warden may recommend forfeiture licence lease impose penalty exceeding 10 000 alternative forfeiture dismiss application 8 prima facie proof non compliance applicant forfeiture serena establishes prima facie case forfeiture circumstance evidentiary burden shift tenement holder audalia satisfy warden case otherwise sufficient gravity justify forfeiture commercial property pty ltd v tallow nominee pty ltd unreported fasc fc 16 december 1998 library 7427 9 warden wilson observed limelight industry pty ltd v berkeley resource ltd 2014 wanw 11 61 holder mining lease exploration licence shall seen consider commercially advantageous comply expenditure condition financial penalty s98 4a act make non compliance cost effective 10 without pre judging final outcome would seem dismissal application forfeiture unlikely 11 power award cost issue party found regulation 167 1 regulation provides warden may application made respondent proceeding division 2 order applicant proceeding give security cost 12 dispute taken within proceeding proceeding within division 2 sueihi minurfk pi viki iim kwmu l l page 5 13 st clair resource pty ltd v oz youamni gold pty ltd 2016 wanw 20 warden hall found following may relevant factor relating exercise discretion award security cost particular case whether application security cost brought promptly ii prima facie merit case pursued applicant security iii property within jurisdiction may able satisfy cost order made applicant substantive proceeding iv whether normal court process court would available within jurisdiction enforcement order cost made applicant substantive proceeding v whether application security cost oppressive sense brought deny impecunious applicant namely applicant substantive proceeding right litigate 14 instance dispute application security cost brought timely manner 15 application however unusual sense serena forfeiture proceeding upon production form 5 established prima facie case forfeiture evidentiary onus switch audalia satisfy warden gravity non compliance forfeiture ought ordered word substantive proceeding warden purpose enabling audalia satisfy evidential burden non compliant obligation act 16 stated numerous time warden court primary object act ensure far practicable land either known potential mining worthy exploration made available mining exploration made available subject reasonably stringent condition including expenditure condition show purpose grant advanced act regulation make 2017 wamw 13 suuu miik iu l audihri kimiiiius l f page 6 provision others interest purpose land apply forfeiture may exploit area see example nova resource nl v french 1995 12 war 50 craig v spargos exploration nl unreported kalgoorlie warden court 22 december 1986 17 principle sometimes referred jealous neighbour principle vital self regulation mining industry whole making cost order applicant forfeiture circumstance present case view would contrary purpose 18 event present proceeding serena tendered court evidence hind secured bank account excess sought secure cost sought audalia resource 19 view application security cost ought dismissed 20 serena cost application reserved 21 party liberty apply 72 hour notice 20171 wamw 13 warden andrew maughan saeii miii il l v aiululia kwuuvs id da page 7

MINERALOGY PTY LTD -v- SINO IRON PTY LTD [No 11] [2016] WASC 235 (4 August 2016).txt

mineralogy pty ltd v sino iron pty ltd 11 2016 wasc 235 19 december 2017 last updated 22 december 2017jurisdiction supreme court western australiain chamberscitation mineralogy pty ltd v sino iron pty ltd 11 2016 wasc 235coram chaney jheard 26 may 2016delivered 4 august 2016file civ 1808 2013between mineralogy pty ltdplaintiffandsino iron pty ltdfirst defendantkorean steel pty ltdsecond defendantcitic ltd formerly citic pacific ltd third defendantcatchwords practice procedure summary judgment leave apply time application made three year time limit explanation delay whether new claim requirement justice partieslegislation rule supreme court 1971 wa 14 14 r 1result application dismissedcategory brepresentation counsel plaintiff mr couper qc mr j v gooleyfirst defendant mr c scerri qc mr h parmenter m spencer brucesecond defendant mr c scerri qc mr h parmenter m spencer brucethird defendant mr c scerri qc mr h parmenter m spencer brucesolicitors plaintiff kilmurray legalfirst defendant allenssecond defendant allensthird defendant allenscase referred judgment 1chaney j action commenced 2013 long convoluted history interlocutory dispute pleading side amended numerous occasion 23 march 2016 delivered reason granting leave plaintiff mineralogy file fourth amended statement claim current statement claim seemineralogy pty ltd v sino iron pty ltd 10 2016 wasc 90 reason set history pleading action explained various new claim introduced current statement claim although necessary repeat history provides background application brought central issue proceeding two mining right site lease agreement one first defendant sino mineralogy second defendant korean mineralogy mrslas two mrslas substantially term among various claim introduced current statement claim claim found 85 106 alleged breach cl 16 1 mrslas claim defendant failed comply stipulation cl 16 1 standard work undertaken pursuant mrslas turn led failure develop project mrslas relate contrary 6 1 mrslas cl 16 1 claim mineralogy claim sino korean thereby evinced intention carry obligation required mrslas thereby repudiated mrslas thus entitling mineralogy terminate mrslas 2mineralogy seek leave apply summary judgment defendant pursuant 14 therules supreme court 1971 wa relation cl 16 1 claim subject grant leave mineralogy seek declaration sino korean repudiated mrsla party various alternative declaration plaintiff lawfully terminated respective mrslas particular date order assessment damage payment defendant damage assessed leave apply3order 14 r 1 therules supreme courtprovides plaintiff may ground defendant defence claim particular part claim except amount damage claimed apply court judgment within 21 day appearance later time leave court writ action issued 18 march 2013 defendant filed memoranda appearance 10 april 2013 application summary judgment therefore brought short three year time limited 14 r 1 4the policy rule summary judgment application brought within relatively short time frame application brought early stage proceeding unnecessary expense incurred barrick gold australia ltd v fl smidth inc 2007 wasc 186 10 templeman j discretion extend time given sole purpose enabling court justice party hughes v national trustee executor agency co australasia ltd 1978 vicrp 27 1978 vr 257 262 gallo v dawson 1990 hca 30 1990 93 alr 479 480 discretion exercised favour applicant strict compliance rule work injustice upon applicant order determine question necessary regard history proceeding conduct party nature litigation consequence party grant refusal application extension time gallo480 material court upon exercise discretion ratnam v cumarasamy 1964 3 er 933 935 lord guest usually incumbent applicant extension time provide adequate explanation delay 5the plaintiff submits leave granted claim pleaded 85 106 current statement claim new claim ii relevant factual dispute relation claim fact upon claim based either fact pleaded defendant schedule counterclaim extracted public document produced defendant stock exchange announcement iii absence factual dispute question simply one construction relevant provision mrslas particular cl 16 1 iv summary judgment application heard determined plaintiff favour resolve issue termination mrslas without need trial consider four ground repudiation pleaded current statement claim mineralogy submits true issue damage issue claim damage relating breach mrslas would remain decision mrslas terminated would effectively focus party attention whether could commercial resolution issue 6in circumstance given trial issue considerable time away mineralogy submits seeking resolve central issue based argument construction short compass fact dispute appropriate use court resource appropriate mean justice party 7the defendant contend claim contained 85 106 current statement claim new claim submission correct examination history proceeding undertaken defendant supported extensive evidence filed relation summary judgment application defendant accurately summarised relevant history follows stock exchange announcement mineralogy relies upon application plainly publicly available document moreover least february 2013 mineralogy aware content making reference statement mcc performance preaction correspondence b progress project status construction item plant regularly communicated mineralogy commencement project monthly report meeting c second source mineralogy draw factual material claim subject application schedule counterclaim schedule first filed defendant 20 june 2013 paragraph 56 reply filed mineralogy 23 july 2013 pleaded reason matter alleged schedule sino korean respectively breached clause 16 mrslas e standard work claim claim sino korean breached clause 16 mrslas introduced mineralogy claim paragraph 85 amended statement claim delivered 14 august 2013 withdrawn second amended statement claim filed 10 december 2013 f standard work claim reintroduced proposed third amended statement claim delivered 15 april 2014 deleted subsequent version proposed third amended statement claim delivered mineralogy 6 june 2014 appear subsequent version g 15 september 2014 mineralogy issued notice default sino korean alleging breach clause 16 1 however mineralogy withdrew notice following week 22 september 2014 h 31 august 2015 mineralogy commenced proceeding civ 2368 2015 include claim concerning standard work 29 september 2015 mineralogy amended statement claim introduce claim civ 2368 2015 permanently stayed abuse process 27 november 2015 including commencement found attempt circumvent procedural requirement including need apply leave bring application summary judgment concerning standard work claim j mineralogy amended statement claim proceeding reintroduce standard work claim seeking summary judgment 8apart assertion accept cl 16 1 claim new claim attempt plaintiff explain delay apprehend mineralogy position relation extension substance case summary judgment clear would work injustice mineralogy judgment cl 16 1 claim delayed claim counterclaim dealt trial ii need trial consider ground termination repudiation pleaded current statement claim could avoided 9it case contended plaintiff successful summary judgment application would avoid need trial rather successful summary judgment application cl 16 1 claim might shorten trial reducing number issue determined issue damage would remain relation cl 16 1 claim would significantly overlap least issue would remain alive proceeding 10an affidavit clive theodore mensink relied upon mineralogy deposed need mineralogy access fund enable various company associated mr clive palmer mineralogy one meet ongoing liability including legal cost basis said need summary judgment application dealt quickly given successful application would result order assessment damage likelihood could proceed trial issue proceeding would impact assessment damage mineralogy financial position short term would enhanced judgment given term sought frank assertion mineralogy written submission interlocutory judgment would focus party attention commercial resolution basis extension time 11the extent case management advantage might achieved successful summary judgment application cl 16 1 claim mean clear 12it follows plaintiff bear significant burden establishing justice case requires extension time sought discharge burden arguing case summary judgment strong absence defence clear justice case requires extension time 13in order case order summary judgment court must persuaded defendant arguable defence aspect claim respect judgment sought seen persuaded plaintiff made case summary judgment relation cl 16 1 claim case principal basis mineralogy application extension time lack merit claim summary judgment14it well established power order summary judgment one exercised great care never exercised unless clear real question tried fancourt v mercantile credit ltd 1983 hca 25 1983 154 clr 87 99 15mineralogy made reference statement barwick cj ingeneral steel industry inc v commissioner railway nsw 1964 hca 69 1964 112 clr 125 130 may extensive argument required demonstrate real question tried chief justice barwick statement must read context observation gleeson cj gummow hayne crennan jj inbatistatos v road traffic authority new south wale 2006 hca 27 2006 226 clr 256 44 46 honour said 46 statement ingeneral steelshould given canonical force recently inagar v hyde gaudron mchugh gummow hayne jj observed course well accepted court whose jurisdiction regularly invoked respect local defendant often service process defendant within geographic limitation court jurisdiction decide issue raised proceeding summary way except clearest case ordinarily party denied opportunity place case court ordinary way taking advantage usual interlocutory process test applied expressed various way verbal formula used intended describe high degree certainty ultimate outcome proceeding allowed go trial ordinary way 16the cl 16 1 claim must seen context purpose mrslas cl 3 2 respective mrslas mineralogy granted certain right following term 3 2 grant mining rightsubject agreement mineralogy hereby grant sino korean relation mine area following right collectively sino korean mining right namely right exclusively use occupy mine area 24 month date hereof subject use party sino korean may consent accordance term agreement purpose exploring mining magnetite ore b carry participate establishing mine within mine area mining magnetite ore c carry participate mining operation mining extracting magnetite ore mine area take quantity magnetite ore mined mine area annual extraction limit operating year total extraction limit term sino korean mining right processing sino korean processing facility product shall never exceed total 12 million tonne year provided agreement 17sino korean mining right continues force time sino korean taken one billion tonne magnetite ore site lease area cl 3 4 cl 4 2 mineralogy granted site lease purpose construction processing facility processing ore production iron ore concentrate pellet hot briquetted iron operation maintenance repair processing facility exercising right holder mining lease site area subject 18by cl 8 sino korean covenanted pay royalty calculated accordance cl 8 2 amount ore taken amount product produced ore significant claim proceeding relates royalty latter category 19by 85 88 current statement claim mineralogy pleads existence term contract sino iron metallurgical corporation china mcc referred general construction contract general construction contract directed construction mining processing facility contemplated mrslas mineralogy party general construction contract pleaded general construction contract required mcc design construct plant according schedule time completion various aspect project pleaded purpose mrslas mcc agent employee contractor sino korean reason cl 1 6 mrslas act omission sino korean agent employee contractor invitee deemed act omission sino korean work carried mcc pursuant general construction contract said formed part sino korean activity defined mrslas 20paragraph 92 current statement claim pleads numerous failure mcc meet requirement general construction contract february 2008 april 2013 paragraph 93 set various step taken defendant related company response failure mcc meet requirement timetable general construction contract 21paragraphs 94 95 plead cl 16 1 mrslas provides standard worksino korean must carry sino korean activity standard care skill diligence would normally expected internationally professional competent organisation implementing project equivalent sino korean project accordance good industry practice 22paragraph 96 97 plead complying cl 16 1 sino korean required ensure mcc exercised standard care skill diligence described cl 16 1 paragraph 98 pleads mcc carry work general construction contract standard required cl 16 1 paragraph 99 100 plead sino korean aware february 2008 mcc carry work required standard 101 pleads sino korean took step comply cl 16 1 23paragraph 102 pleads korean sino required pursuant mrslas proceed develop implement project particular establish requisite processing facility proceed exercise respective mining right obligation said arise cl 6 1 mrslas following term implementation projectsino korean proceed develop implement sino korean project particular sino korean proceed establish sino korean processing facility within site lease area b sino korean proceed exercise sino korean mining right within mine area 24mineralogy pleads reason matter pleaded 85 101 sino korean proceed develop implement respective project proceed establish processing facility accordance mrslas project proposal presumably project proposal reference defined proposal 64 current statement claim document comprised exhibit tlm8 affidavit tracey miley filed support application document comprise 223 page otherwise mentioned 85 106 current statement claim paragraph setting cl 16 1 claim passing reference mineralogy pleading project proposal mentioned either oral written submission either party reliance mineralogy place project proposal context present application unclear proposal proffered part evidence support application might assumed plaintiff place reliance upon question illustrates difficulty dealing summary way application concerning event transaction taking place number year involving activity subject significant number interrelated contractual instrument 25paragraph 104 current statement claim pleads premise sino iron korean steel evinced intention carry obligation mrslas saw fit accordance mrslas 26paragraphs 105 106 plead premise sino korean respectively breached cl 16 1 repudiated respective mrsla 27the fact pleaded relation cl 16 1 claim issue consequence fact much issue 28in written submission mineralogy contended pleaded conduct said breach cl 16 1 entitled mineralogy terminate mrslas two base first reflected 104 current statement claim reason conduct pleaded sino korean respectively evinced intention carry obligation mrslas saw fit accordance mrslas second basis cl 16 1 properly regarded essential term mrslas breach entitled mineralogy terminate counsel mineralogy submitted breach essential term claim embodied 105 108 current statement claim 29inkoompahtoo local aboriginal land council v sanpine pty ltd 2007 hca 61 2007 233 clr 115 gleeson cj gummow heydon crennan jj explained common intention party expressed language contract understood context relationship established contract commercial purpose served determines whether term essential breach justify termination 48 30the basis upon mineralogy submitted cl 16 1 construed provision breach entitled mineralogy terminate expressed follows obvious compliance clause 16 1 sino korean matter considerable importance mineralogy mineralogy receive mrslas payment royalty subject clause 6 3 commencement payment royalty depended upon commencement production ongoing amount royalty depended upon quantity product produced vital mineralogy obtaining benefit bargained production commence expeditiously production reach quantity nominated sino korean approval proposal 27 6 mtpa soon possible 31in course oral submission counsel mineralogy accepted force proposition might failure perform work requisite care skill diligence might impact mineralogy asserts commercial purpose mrslas significant effect timeliness development project proposition would appear supported fact unlike general construction contract mineralogy party mrslas imposed specific time frame completion activity operation pursuant mrslas save cl 6 3 clause 6 3 required production le 6 million tonne product defined mrslas later seven year date mrslas consequence failure meet obligation unless prevented act matter thing outside sino korean control obligation sino korean pay stipulated amount mineralogy clause 6 3 effect provision nature liquidated damage provision claim breach cl 6 3 mineralogy one claim made current statement claim 32counsel mineralogy accepted cl 16 1 probably better characterised intermediate term sufficiently serious breach give rise right termination therefore take alternative base upon mineralogy put cl 16 1 claim either sino korean conduct breach cl 16 1 evinced intention bound mrslas breach intermediate term seriousness substantially deprive mineralogy benefit mrslas 33as wilson j observed inshevill v builder licensing board 1982 hca 47 1982 149 clr 620 repudiation contract serious matter lightly found inferred need determined regard circumstance case see whether conduct amount renunciation absolute refusal perform contract 633 defendant point various matter referred affidavit david john mason sworn opposition application summary judgment mr mason said project subject mrslas largest magnetite mine australia construction employed thousand people 2009 2013 period conduct said breach mrslas capital expenditure project excess 8 billion 10 million paid royalty payment mineralogy date 20 million paid department mine petroleum state government royalty government charge 34mr mason identified various public statement made third defendant concerning commitment project subject mrslas 35as already noted fact relied upon mineralogy amounting failure carry activity requisite standard care skill diligence said taken place number year oral submission counsel mineralogy suggested august 2008 sino korean evinced intention develop project manner time saw fit rather accordance mrslas contends conclusion objectively reached basis matter pleaded 36whether objectively event upon mineralogy rely said evince intention perform obligation mrslas deprive mineralogy benefit contract requires examination circumstance includes circumstance defendant may contend relevant question susceptible summary disposal cannot said real question tried relation issue 37similarly question whether conduct either taken separately combination constituted breach cl 16 1 seriousness entitle mineralogy terminate mrslas one left trial plaintiff course argument changed alternative basis upon sought judgment breach essential term serious breach intermediate term latter fully argued extent plaintiff pleaded case breach essential term clearly serious question tried extent case serious breach intermediate term fact circumstance surrounding contract require examination trial rather summary way 38the defendant raised number argument summary judgment refused one mineralogy failed plead bring evidence standard would normally expected internationally professional competent organisation implementing project equivalent sino korean project accordance good industry practice standard imposed cl 16 1 defendant submit without pleading specifically matter fact cl 16 1 required defendant specific respect defendant failed meet standard possible understand case plaintiff seek make appropriate context application determine whether defect pleading respect contended defendant whether order determine question repudiatory breach cl 16 1 evidence requisite standard required matter plaintiff consider issue party illustrates however unsuitability determination cl 16 1 claim summary manner several thousand page affidavit material filed party fairly properly considered context trial 39it necessary deal various defence pleaded defendant subject defendant submission cannot said real question tried relation cl 16 1 claim higher degree certainty claim determined manner contended mineralogy 40in circumstance leave bring application summary judgment time refused application dismissed jurisdiction supreme court western australiain civilcitation mineralogy pty ltd v sino iron pty ltd 11 2016 wasc 235 coram chaney jheard papersdelivered 19 december 2017file civ 1808 2013between mineralogy pty ltdplaintiffandsino iron pty ltdfirst defendantkorean steel pty ltdsecond defendantcitic ltd formerly citic pacific ltd third defendantcatchwords cost special cost order question addressed whether order refused despite discretion enlivened whether new limit fixedlegislation legal profession act 2008 wa 280result limit removedcategory brepresentation counsel plaintiff appearance paper first defendant appearance paper second defendant appearance paper third defendant appearance paper solicitor plaintiff mr kane jonesfirst defendant allenssecond defendant allensthird defendant allenscase referred judgment 1chaney j 4 august 2016 delivered reason decision dismissing application plaintiff summary judgment 6 october 2016 defendant made application special cost order following term plaintiff pay defendant cost incidental plaintiff application leave apply summary judgment summary judgment filed 27 march 2016 summary judgment application taxed basis limit cost allowable thelegal profession supreme court contentious business determination 2014 wa 2014 scale thelegal profession supreme court contentious business determination 2016 wa 2016 scale varied pursuant following order 2014 scale varied pursuant section 280 2 thelegal profession act 2008 wa respect item 10 proceeding chamber proceeding item 11 applies removing limit hour allowed preparation b allowing cost taxed clerk paralegal ii junior practitioner iii senior practitioner iv two junior counsel v senior counsel maximum rate 2014 scale andthe 2016 scale varied pursuant 280 2 thelegal profession act 2008 wa respect item 10 b attending reserved judgment chamber including preparation consideration reason decision necessary work attendance obtain final order removing limit hour allowed preparation b allowing cost taxed clerk paralegal ii restricted practitioner iii junior practitioner iv two junior counsel v senior counsel maximum rate 2016 scale 2the application supported affidavit rebecca brien sworn 6 october 2016 reliance also placed affidavit david john mason affirmed 29 april 2016 filed purpose summary judgment application 3directions subsequently made plaintiff file affidavit submission response application determined paper 4in accordance direction plaintiff filed submission opposing making special cost order plaintiff accepted nature summary judgment application enliven court jurisdiction 280 thelegal profession act 2008 wa submitted court decline exercise discretion alternatively determine variation scale limited increase cap number total hour 150 hour relation 2014 scale 5 hour relation 2016 scale m brien affidavit5ms brien deposed 26 march 2016 plaintiff served summary judgment application shortly afterwards plaintiff served two affidavit affidavit clive theodore mensink affirmed 29 march 2016 seven page length affidavit tracey lyn miley affirmed 29 march 2016 752 page length including annexures following day plaintiff delivered outline submission regarding application leave make summary judgment application 31 march 2016 party conferred relation issue summary judgment application prior attending direction hearing day direction hearing lasted little half hour although matter summary judgment application also dealt time 6on 29 april 2016 defendant served four affidavit opposition summary judgment affidavit mr mason 669 page length affidavit malcolm james northey affirmed 29 april 2016 636 page affidavit ian peter scott donahoo sworn 28 april 2016 475 page including annexures affidavit mr donahoo sworn 29 april 2016 43 page 7on 16 may 2016 plaintiff served outline submission support summary judgment application 18 page length 18 may 2016 defendant served outline submission 22 page length plaintiff served submission reply 20 may 2016 11 page length 8on 23 may 2016 attorney general western australia sought granted leave deliver short outline written submission outlining state position respect summary judgment application 9the application heard 26 may 2016 reserved judgment judgment delivered 5 august 2016 10ms brien said preparing hearing summary judgment application lawyer allen defendant solicitor spent 867 hour undertaking various specified task addition counsel engaged behalf defendant spent approximately 271 hour undertaking various task related summary judgment application thus total time spent clerk junior practitioner senior practitioner two junior counsel senior counsel totalled 1 138 hour relation work covered 2014 scale 11the work fell within 2016 scale concerned taking judgment m brien said total 23 hour involved work 3 5 hour junior practitioner 12 hour senior practitioner 7 hour two junior counsel one hour senior counsel scale allowances12the 2014 scale item proceeding chamber item 10 item 10 allows two day preparation one day hearing counsel item applies respect work done application presently consideration completion hearing 13the 2016 scale came force prior reserved decision delivered item 10 b 2016 scale permit hourly rate attending reserved judgment including preparation consideration reason decision necessary work attendance obtain final order 484 per hour rate applicable senior practitioner maximum number hour stipulated defendant submit item allows work done one senior practitioner accept item allow time spent senior counsel hourly rate provided exceeds junior counsel category practitioner junior senior practitioner accept item necessarily confined single senior practitioner work item might performed one practitioner section 280 thelegal profession act14section 280 1 thelegal profession actprovides legal cost regulated applicable cost determination case 2014 scale 2016 scale defined order sought application section 280 2 permit court opinion amount cost allowable respect matter cost determination inadequate unusual difficulty complexity importance matter various thing order payment cost fixed determination b fix higher limit cost fixed determination c remove limit cost fixed determination make order give direction purpose enabling cost determination ordered assessed 15the requirement inadequacy demonstrated applicant show fairly arguable case bill presented taxing officer may tax amount greater limit imposed relevant cost determination first question addressed second question whether inadequacy arises unusual difficulty complexity importance matter 1 16there doubt test satisfied case plaintiff accepted nature summary judgment application enliven court discretion 280 2 light concession necessary say m brien affidavit demonstrates allowance provided item 10 2014 scale inadequate sense required 280 complexity importance matter evident mr mason affidavit 29 april 2016 deal nature extent mining operation subject proceeding discussion background litigation issue arising primary decision earlier reason inmineralogy pty ltd v sino iron pty ltd 10 3 17as 2016 scale appears reasonably spent time practitioner involved senior counsel potentially recoverable item 10 b question therefore whether regard complexity importance matter involvement senior counsel warranted context action clear senior counsel involved ongoing conduct undoubtedly complex important action concerning future mining project billion dollar spent would necessarily required review consider decision application therefore fairly arguable item 10 b 2016 scale inadequate relevant sense 18i satisfied therefore discretion make order 280 thelegal profession actis enlivened question must dealt whether decline exercise discretion alternatively exercising whether place limit number hour total could claimed question arises whether order sought par 2 b 3 b chamber summons made exercise discretion19the plaintiff submits unreasonable defendant allowed potentially claim 1 138 hour spent preparing appearing hearing plaintiff observes assumption 10 hour work per day made total amount time said spent almost four month work single person working seven day per week submits satisfactory explanation enormous amount time spent follows court exercise discretion defendant favour 20i agree amount time spent appears excessive least sense might reasonably thought properly recoverable party party basis clear m brien affidavit many clerk paralegal junior practitioner senior practitioner engaged application addition three counsel used even one clerk paralegal one junior practitioner one senior practitioner working three counsel undoubtedly much duplication time whilst person conferred reviewed work done others matter client whether prepared bear cost large team lawyer working matter mean cost recoverable party litigation 21the making special order fix higher limit imposed determination remove limit cost imposed determination remains taxing officer consider reasonable necessity work make judgment remuneration reasonably required 4 basis decline exercise discretion 280 party whose favour order made may incurred may likely claim cost even substantial amount cost properly recoverable question whether appears likely scale item inadequate compensate successful party cost reasonably recoverable unsuccessful party matter taxing officer ass proper amount cost 22section 280 2 permit court fix higher limit cost fixed relevant determination plaintiff suggests done case fixing cap number total hour 150 hour 2014 scale five hour 2016 scale plaintiff make several submission might done case 23it submits thelegal profession actproceeds basis cost left taxing officer limit person seeking displace limit put forward proper basis upon occur required person seeking displace limit establish limit provided determination appears inadequate done party liable cost seeking court fix new limit cogent basis must put forward occurred case nothing plaintiff submission seek justify selection 150 hour five hour respectively relation item appropriate upper limit likely represent adequate upper limit circumstance case number hour appear simply chosen random sound basis upon court could fix upon hour suggested plaintiff indeed basis evidence court fixed limit 24the second contention plaintiff would unjust discretion 280 exercised benefit defendant would deprive plaintiff fund could otherwise used fund proceeding defendant irrelevant consideration even evidence support submission 25the plaintiff third contention would wrong characterise entirety spent defendant lawyer wasted circumstance issue may overlap issue substantive proceeding matter taxing officer 26the fourth contention amount m brien affidavit said amount time proposed charged defendant rather expressed estimate time spent submitted would unjust expose plaintiff potentially enormous cost order absence evidence cost proposed charged defendant difficulty submission making order lifting limit 280 thelegal profession actdoes effect exposing plaintiff potentially enormous cost remove limit inadequate circumstance case 27there basis upon new limit suggested plaintiff properly imposed say court sense suggesting defendant recover cost reflecting number hour said spent defendant legal representative application lifting limit reflect view relevant scale item appear adequate regard complexity importance matter 28as well lifting limit hour allowed preparation defendant seek par 2 b 3 b order sought court determine cost claimed respect five different category practitioner allowed maximum rate relevant scale basis make order rate allowable relation particular task particular practitioner matter taxing officer undoubtedly task warrant charge maximum rate event evidence actual rate charged different category practitioner whether fall inside outside scale allowance would therefore make order sought par 2 b 3 b summons 29as observed basis upon item 10 b 2016 scale lifted make provision time spent senior counsel relation work encompassed item orders30there order 1 plaintiff pay defendant cost incidental plaintiff application leave apply summary judgment summary judgment filed 27 march 2016 taxed basis limit cost allowable thelegal profession supreme court contentious business determination 2014 wa thelegal profession supreme court contentious business determination 2016 wa varied follows 2014 scale varied pursuant 280 2 thelegal profession act 2008 wa respect item 10 proceeding chamber proceeding item 11 applies removing limit hour allowed preparation ii 2016 scale varied pursuant 280 thelegal profession act 2008 wa respect item 10 b attending reserved judgment chamber including preparation consideration reason decision necessary work attendance obtain final order allowing time reasonably spent senior counsel work covered item 2 plaintiff pay defendant cost incidental application 3 cost referred order 1 taxed payable forthwith 1 heartlink ltd v jones liquidator hl diagnostics pty ltd liq 2007 wasc 254 16 martin cj 2 plaintiff submission 2 3 mineralogy pty ltd v sino iron pty ltd 10 2016 wasc 90 4 cifuentes v fugro spatial solution pty ltd 2009 wasc 316 22 rourke v p b corporation pty ltd 2008 wasc 36 20

Sanreef Pty Ltd T_A Hambleton Hotel re Sanreef Pty Ltd Hotels Enterprise Agreement 2009-2013 [2010] FWAA 7833 (12 October 2010).txt

sanreef pty ltd hambleton hotel sanreef pty ltd hotel enterprise agreement 2009 2013 2010 fwaa 7833 12 october 2010 fair work australiadecisionfair work act 2009s 185 approval enterprise agreementsanreef pty ltd hambleton hotel ag2009 20349 sanreef pty ltd hotel enterprise agreement 2009 2013hospitality industrycommissioner asburybrisbane 12 october 2010application approval sanreef pty ltd hotel enterprise agreement 2009 2013 1 application made approval enterprise agreement known thesanreef pty ltd hotel enterprise agreement 2009 2013 agreement application made pursuant tos 185of thefair work act 2009 act made sanreef pty ltd hambleton hotel agreement single enterprise agreement 2 agreement made bridging period1as defined thefair work transitional provision consequential amendment act 2009 transitional act accordingly considering whether approve agreement taken account provision part 2 4 chapter 2 act modified schedule 7 transitional act 3 written undertaking provided employer following term 1 employer rely refer apply provision clause 2 2 employment status change sanreef pty ltd hotel enterprise agreement 2009 2013 agreement 2 pay increase prescribed subclause 3 2 2 first full pay period 1 june 1 december 2010 applied managerial wage contained subclause 3 2 1 operation agreement 3 lieu clause 4 1 hour work agreement following apply 4 1 hour work4 1 1 hour work full time employeesthe arrangement hour work full time employee follows maximum average 38 hour per week 12 month period b minimum 6 hour per shift maximum 12 hour per shift c ordinary time worked within span 12 hour per day 8 rostered day per 4 week cycle e maximum 10 consecutive day may worked 4 rostered day f broken shift may worked maximum break two 2 hour per day 4 1 2 hour work part time full time employeesthe arrangement hour work part time employee implemented follows minimum 12 hour per week maximum 38 hour per week b minimum 3 hour per shift maximum 12 hour per shift c ordinary time worked within span 14 hour per day maximum 10 consecutive day may worked 4 non working day e broken shift may worked maximum break two 2 hour per day f employer employee agree fluctuation business activity may cause difficulty providing part time employee precise roster rostering part time employee employer undertakes provide accurate forecast possible actual number hour worked day however order meet unexpected fluctuation business activity employer may extend hour work part time employee roster without incurring overtime payment provided clause 4 1 2 e complied ii decrease hour work part time employee seeking either increase decrease part time employee hour work volunteer initially sought insufficient employer select part time employee increased decreased rostered hour selecting employee employer take account individual need circumstance employee 4 1 3 hour work casual employeecasual employee may work minimum 2 hour per shift maximum 10 hour per shift 38 hour per week following formula used calculate applicable casual rate relevant penalty percentage applies 25 theordinary hourlybase rate ordinary hourly base ratexrelevantpenaltypercentage applicablecasualhourly rate4 employer rely refer apply provision subclause 4 2 4 extra hour agreement 5 lieu subclause b 5 2 4 notice evidence personal carer compassionate leave agreement following apply b evidencean employee given employer notice taking leave must required employer give employer evidence set clause 5 2 1 4 5 2 3 3 leave taken personal carer unpaid carer compassionate leave provided case personal leave employee personal illness injury required give employer evidence set clause 5 2 1 4 5 2 3 3 unless absence exceeds one 1 day 6 subclause 6 2 7 authorised deduction employer notice worked agreement amended read 6 2 7 authorised deduction employer notice workedif employee fails give notice required resignation work minimum period notice employee authorises employer deduct unpaid wage monies due amount equivalent period notice worked 7 lieu clause 5 3 long service leave agreement following apply 5 3 long service leaveall employee entitled take accrue long service leave accordance provision chapter 2part 3of theindustrial relation act 1999 qld 8 employer rely refer apply provision clause 7 2 anti discrimination agreement 9 employer rely refer apply provision clause 7 3 medical examination agreement 4 satisfied requirement s 186 187 188 act relevant application approval met 5 agreement approved subject written undertaking provided employer set accordance 191 act undertaking taken term agreement 6 agreement approved accordance withs 54of act operate seven day date decision nominal expiry date agreement 1 december 2013 commissioner1item 2 part 1 schedule 2 printed authority commonwealth government printer price code g ae881398 pr502564

Shop, Distributive and Allied Employees Association-Western Australian Branch [2021] FWC 2249 (23 April 2021).txt

shop distributive allied employee association western australian branch 2021 fwc 2249 23 april 2021 last updated 26 april 2021 2021 fwc 2249the attached document replaces document previously issued code 23 april 2021 amended paragraph numbering associate deputy president gostencnikdated 26 april 2021 2021 fwc 2249fair work commissiondecisionfair work act 2009s 512 right entryshop distributive allied employee association western australian branch re2021 376 deputy president gostencnikmelbourne 23 april 2021application right entry permit johannes maasdam whether fit proper person hold entry permit act satisfied mr maasdam fit proper person hold permit permit issued 1 shop distributive allied employee association sda applied fair work commission commission 512 thefair work act 2009 act issue right entry permit official johannes maasdam mr maasdam employed sda organiser relevant statutory provision application 2 applicable principle determining right entry permit application 512 well settled controversial shortly stated fitness propriety proposed permit holder subject application permit assessed taking account permit qualification matter set 513 1 regard right permit holder exercise part 3 4 act limitation condition attaching exercise right responsibility exercised relation right focus commission inquiry whether proposed permit holder fit proper person someabstract sense inquiry whether proposed permit holder fit proper person hold entry permit exercise power function responsibility attached holding permit 1 commission required ascertain time application determined whether proposed permit holder fit proper person hold entry permit 3 permit qualification matter contained 513 1 mandatory consideration must taken account given appropriate weight statutory requirement matter taken account mean matter relevant consideration sense discussed inminister aboriginal affair another v peko wallsend limited others 2 matter decision maker bound take account obligation take account matter set 513 mean matter must treated matter significance decision making process 3 must evaluated accorded appropriate weight 4 4 weight given particular matter ultimately matter commission however ascribing weight matter care taken ensure relevant factor great importance given adequate weight excessive weight relevant factor great importance ascribed 5 5 regard structure content 513 deciding whether proposed permit holder fit proper person hold entry permit permit qualification matter identified 513 1 act must taken account absence example conviction official offence law commonwealth relating involving fraud dishonesty relevant assessment conviction official offence would absence conviction must accorded appropriate weight 6 section 513 1 g act requires commission take account matter considers relevant matter relevant rationally affect assessment whether proposed permit holder fit proper person hold entry permit matter may relevant therefore fall considered 513 1 g matter relate personal characteristic proposed permit holder pertinent discharge function exercise right privilege associated holding permit 7 turn consider application consideration 8 support application sda filed declaration mr maasdam mr peter keefe branch secretary declaration permit qualification matter 513 1 b c e f 9 according declaration mr maasdam received appropriate training right responsibility permit holder undertaking course training subject federal right entry conducted 11 march 2021 513 1 act 6 mr maasdam never convicted offence industrial law 513 1 b act 7 mr maasdam never convicted offence law commonwealth state territory foreign country involving conduct described 513 1 c act 8 neither mr maasdam person ordered pay penalty act industrial law relation action taken 513 1 act 9 mr maasdam entry permit issued part 3 4 act similar law commonwealth revoked suspended imposed condition permit 513 1 e act 10 mr maasdam cancelled suspended imposed condition right entry permit industrial occupational health safety purpose mr maasdam held state territory industrial law state territory occupational health safety law 513 1 f act 11 mr maasdam disqualified exercising applying right entry permit industrial occupational health safety purpose state territory industrial law state territory occupational health safety law 513 1 f ii act 12 10 accept information disclosed declaration concerning matter accurate correct matter weigh favour conclusion mr maasdam fit proper person hold right entry permit permit qualification matter 513 1 g 11 matter aware consider relevant determination whether mr maasdam fit proper person hold entry permit conclusion 12 taking account permit qualification matter reason earlier stated satisfied mr johannes maasdam fit proper person hold entry permit application sda entry permit issued mr maasdam granted 13 permit separately issued deputy president 1 maritime union australia 2014 fwcfb 1973at 23 communication electrical electronic energy information postal plumbing allied service union australia 2015 fwc 1522at 32 2 1986 hca 40 1986 162 clr 24 see alsogriffiths v queen 1989 hca 39 1989 167 clr 372at 379 ho v professionalservices review committee 295 2007 fca 388at 23 26 cited inhasim v attorney general thecommonwealth 2013 fca 1433 2013 218 fcr 25at 65 3 friend hinchinbrook society inc v minister environment 3 1997 77 fcr 153 australian competition andconsumer commission v leelee pty ltd 1999 fca 1121 edward v giudice 1999 fca 1836andnational retailassociation v fair work commission 2014 fcafc 118 4 nestle australia ltd v federal commissioner taxation 1987 16 fcr 167at 184 cited approval hely j inelias v federal commissioner taxation 2002 fca 845 2002 123 fcr 499at 62 katzmann j inconstruction forestry mining energy union v hamberger another 2011 fca 719 2011 195 fcr 74at 103 5 minister aboriginal affair another v peko wallsend limited others 1986 hca 40 1986 162 clr 24at 15 p 41 6 form f42 declaration proposed permit holder dated 31 march 2021 australian trade union institute statement completion dated 11 march 2021 7 ibid b 8 ibid c 9 ibid 10 ibid e 11 ibid f 12 ibid g printed authority commonwealth government printer pr728902

R v PAM [2011] QCA 36 (8 March 2011).txt

r v pam 2011 qca 36 8 march 2011 last updated 9 march 2011supreme court queenslandcitation r v pam 2011 qca 36parties rvpam applicant file ca 216 2010dc 118 2010division court appealproceeding application extension conviction sentence applicationoriginating court district court brisbanedelivered order delivered ex tempore 10 february 2011further order reason delivered 8 march 2011delivered brisbanehearing date 10 february 2011judges margaret mcmurdo p chesterman white jjaseparate reason judgment member court concurring order madeorders delivered ex tempore 10 february 2011the application extension time appeal conviction refused delivered 8 march 2011the application leave appeal sentence refused catchword criminal law appeal new trial procedure notice appeal time appeal extension thereof applicant sought extension time appeal conviction applicant pleaded guilty one count maintaining sexual relationship child count 1 three count rape count 2 4 applicant argued pressured legal representative plead guilty applicant alleged aware prosecution case applicant produced evidence support contention whether applicant prospect success appeal whether interest justice grant extensioncriminal law appeal new trial appeal sentence ground interference sentence manifestly excessive inadequate applicant sought leave appeal sentence applicant sentenced eight year imprisonment respect count 1 four year concurrent imprisonment count 2 4 parole eligibility 32 month mitigating factor whether sentence manifestly excessivemeissner v queen 1995 184 clr 132 1995 hca 41 citedr v aai 2009 qca 253 citedr v bao 2004 qca 445 citedr v bbp 2009 qca 114 citedr v gdjc unreported ryrie dcj dc 862 2008 25 july 2008 r v han 2008 184 crim r 153 2008 qca 106 citedcounsel applicant appeared behalfb j power respondentsolicitors applicant appeared behalfdirector public prosecution queensland respondent 1 margaret mcmurdo p 13 september 2010 applicant self represented filed notice appeal conviction application leave appeal sentence application leave appeal sentence within prescribed time limit appeal conviction two month plea guilty charge conviction seek appeal court acceded suggestion mr power respondent treat applicant notice appeal conviction application extension time appeal conviction conclusion hearing application 10 february 2011 court refused application extend time appeal conviction stating would give reason later court heard application leave appeal sentence follows reason joining court order refusing application also refusing application leave appeal sentence district court proceeding 2 indictment presented district court brisbane 25 january 2010 charging applicant maintaining sexual relationship child 5 november 2001 20 may 2007 count 1 three count rape 6 november 2001 8 november 2002 count 2 4 two count indecent treatment circumstance aggravation 12 year care count 5 6 matter adjourned 18 may 2010 pre trial legal argument evidence pre recorded theevidence act 1977 qld 8 june 2010 3 18 may 2010 judge griffin sc gave ruling admissibility evidence led trial adjourned matter 8 june 2010 4 hearing resumed judge koppenol 8 june 2010 pre recording evidence proceed instead prosecution amended count 1 shortening time period charged 5 november 2001 7 november 2004 endorsed indictment notation crown hereby indicates longer proceed count 5 6 prosecutor asked applicant arraigned basis amendment judge explained applicant represented counsel effect amendment discharged respect count 5 6 honour asked associate arraign applicant count 1 4 applicant pleaded guilty count turn judge next asked associate administer allocutus associate enquired whether applicant anything say sentence passed applicant responded applicant sentence hearing adjourned enable lawyer obtain medical report 5 hearing continued judge shanahan 17 august 2010 transcript record honour noted presence applicant applicant pleaded guilty count 1 4 one count maintaining three count rape allocutus administered 6 hearing prosecutor provided judge applicant counsel written submission exhibit 1 essentially repeated making following oral submission applicant 51 year old sentence 44 46 time offending criminal history exhibit 3 beginning 1981 included conviction drug dishonesty offence offence violence breached community based order operational period suspended term imprisonment past 4 april 2005 convicted assault younger brother placed two year probation order subsequently breached number time served term actual imprisonment past custody present offence since 23 january 2009 7 fact offending subject application follows applicant effectively step father since 12 month old applicant mother subsequently daughter five year old sexual abuse commenced unlawful relationship continued three year stopping shortly eighth birthday applicant repeatedly physically abused began sexually abuse child family subject child safety complaint mostly remained custody applicant mother applicant ultimately married applicant regularly removed clothes inserted finger vagina attempted physically resist later began regularly insert finger anus experienced pain vaginal anal area time abuse applicant also touched breast occasion count 2 specific occasion applicant inserted finger vagina count 3 specific occasion inserted finger anus count 4 occasion inserted stick like object anus resulting sore complained foster parent applicant abuse matter eventually reported police medical examination four year alleged abuse revealed sign past vaginal anal injury police interviewed applicant admitted physically assaulting occasion denied sexually assaulting 8 foster mother provided victim impact statement described troubled young woman many present difficulty seemed relate applicant sexual abuse attending sexual assault counselling weekly six month counsellor advised would ongoing need also receiving support dealing anger 9 prosecutor submitted applicant plea guilty treated timely saved trauma recounting dreadful event childhood whilst applicant admit offence police admit physically abusing showed remorse part hand applicant mature man unfavourable criminal history sexually abused young child background physical violence towards victim effectively step father offence serious breach trust resulting extended psychological injury appropriate penalty eight year imprisonment parole eligibility three year 10 applicant counsel made following submission sentence appropriate head sentence seven eight year imprisonment parole eligibility date set one third head sentence placed emphasis applicant plea guilty 11 tendered report psychologist peter perros exhibit 5 following effect mr perros interviewed applicant 90 minute 2 july 2010 reading prosecution material applicant gave detail background dysfunctional upbringing moved mother father grandmother claimed sexually molested priest experience haunted throughout adolescence congenital scoliosis made vulnerable musculo skeletal injury subsequently sustained back injury work car accident 1990 2008 prescribed opiate analgesic led become addicted heroin still suffered chronic pain contributed anger manifested towards child complex psychological issue affecting personality interpersonal style offending behaviour inconsistent past criminal history anti depressant medication associated erectile dysfunction male applicant pain anger likely contributed offence found difficult manage poor anger management resulting chronic pain stress level would probably benefit counselling deal childhood trauma poorly developed interpersonal style 12 another report senior government medical officer dr spencer part exhibit 6 confirmed applicant opioid dependency long standing polysubstance abuse made difficult manage manipulative confronting manner repeatedly failed comply treatment 13 general practitioner dr mammino confirmed letter also part exhibit 6 treated applicant june december 2008 5 mg diazepam three time day proved effective management stress resulting back injury suffered accident 14 sentencing applicant judge made following observation referring fact offending would inappropriate take account separate offence violence applicant charged nevertheless applicant offending serious warranted eight year term imprisonment suggested prosecution applicant mature man offending commenced five year old step daughter significant breach trust offence persisted three year period involved penetration anus vagina extent left injury circumstance serious r v han 1 impact offending severe victim impact statement demonstrated applicant long significant criminal history although sexual offence applicant pleaded guilty saving give evidence judge referred psychologist report fact applicant claimed sexually abused child judge also noted applicant medical problem considered matter require sentence mitigated medical issue could catered jail seriousness offending outweighed personal circumstance appropriate set parole eligibility one third total sentence 15 judge sentenced applicant eight year imprisonment respect count 1 four year concurrent imprisonment count 2 4 ordered eligible parole 22 september 2011 serving 32 month time spent pre sentence custody 571 day deemed time already served sentence application extension time appeal conviction 16 applicant provided satisfactory explanation delay filing appeal conviction self represented possible considered appeal period commence run conclusion sentencing process far likely reason delay appealing conviction four offence pleaded guilty want set aside guilty plea received sentence unhappy even applicant given satisfactory explanation delay appealing conviction attempting set aside plea guilty would point extending time appeal conviction inevitably appeal would failed court possession full record proceeding district court able consider merit applicant proposed appeal conviction determining whether grant application extend time appeal conviction 17 applicant ground stated application follows

CORRS CHAMBERS WESTGARTH (a firm) -v- CHARTER PACIFIC CORPORATION LTD [2021] WADC 114 (2 December 2021).txt

corrs chamber westgarth firm v charter pacific corporation ltd 2021 wadc 114 2 december 2021 last updated 1 february 2022jurisdiction district court western australiain chamberslocation perthcitation corrs chamber westgarth firm v charter pacific corporation ltd 2021 wadc 114coram deputy registrar hewittheard 18 october 2021delivered 2 december 2021file civ 2603 2021between corrs chamber westgarth firm plaintiffandcharter pacific corporation ltddefendantpractice procedure application stay turn factslegislation australian consumer lawservice execution process act 1992 cth result stay refusedrepresentation counsel plaintiff m j taylor scdefendant mr j entwislesolicitors plaintiff mcnally codefendant patterson houen comminscase referred decision nildeputy registrar hewitt determination plaintiff amended chamber summons seeking stay proceeding provision theservice execution process act 1992 cth together condition stay require defendant commence proceeding district court new south wale within 28 day order together number incidental order order dispose application shall start review circumstance given rise plaintiff claim plaintiff firm solicitor suing defendant outstanding fee totalling approximately 400 000 defence defendant alleges essence service provided plaintiff defendant negligently provided breach theaustralian consumer lawand consequence defendant suffered significant loss plaintiff retained defendant regard dispute one christopher john burke enforce term share purchase agreement company described securicom nsw pty ltd securicom microlatch ltd microlatch objective purchasing share company obtain access certain patent held company engagement required plaintiff commence proceeding supreme court new south wale seeking specific performance share purchase agreement term agreement made necessary action commenced new south wale however relevant expertise carry instruction western australia member plaintiff firm mr david yates experience litigation patent technology field based mr yates operated perth office consequence proceeding although conducted new south wale run perth office defendant hand company located operating queensland notwithstanding fact plaintiff client different state litigation conducted third case pursued court new south wale eventual judgment favour present defendant said defendant objective entering share purchase agreement seeking obtain specific performance agreement order procure ownership certain australian international patent owned securicom microlatch alleged defendant plaintiff failed take step necessary procure transfer international patent defendant consequence put considerable litigation ultimately succeeded objective obtaining ownership international patent significant expense although yet commenced proceeding clear defendant intends commence proceeding plaintiff seeking damage plaintiff flowing matter mentioned background application brought information put suggests amount proposed claim exceed amount sought plaintiff present proceeding issue therefore action take place respect provision theservice execution process actare relevant underpin application section 20of act relied upon support application section provides stay proceeding 1 section apply relation proceeding supreme court state court issue 2 person served may apply court issue order staying proceeding 3 court may order proceeding stayed satisfied court another state jurisdiction determine matter issue party appropriate court determine matter 4 matter court take account determining whether court another state appropriate court proceeding include place residence party witness likely called proceeding b place subject matter proceeding situated c financial circumstance party far court aware agreement party court place proceeding instituted e law would appropriate apply proceeding f whether related similar proceeding commenced person served another person include fact proceeding commenced place issue 5 court order may made subject condition court considers appropriate order facilitate determination matter issue without delay undue expense seen thats 20 4 set criterion must considered deciding whether stay sought present application made order properly consider matter necessary regard amended application clear intention application action proceed district court new south wale must therefore consider application context contest western australian court new south wale court first matter considered place residence party witness likely called proceeding defendant queensland company witness insofar determined stage reside state plaintiff partnership australia wide reach office sydney melbourne brisbane perth witness likely called plaintiff reside western australia advantage either party would relatively slight would favour western australia next must consider place subject matter proceeding situated obvious subject matter initial proceeding court proceeding new south wale say subject matter present proceeding fact situated subject matter present proceeding performance plaintiff carrying term retainer defendant difficult information presented know whether breach b breach took place damage suffered presumably suffered queensland nothing consideration matter point definitely towards either court contention matter requiring consideration financial circumstance party neither party advance relevant consideration shall disregard next matter requiring consideration whether party breached agreement litigation take place score agreement irrelevant next issue would appropriate law law tort largely similar western australia new south wale save likely difference probably significance due difference thecivil liability actsin respective state comment regard law flow law would appropriate probably consequence law relevant much peripheral issue insofar defendant proposed claim theaustralian consumer lawis concerned uniform state confers advantage either western australia new south wale final point consider whether related similar proceeding commenced although clearly proceeding offing proceeding yet commenced finally must disregard fact action commenced western australia consideration appropriate court factor relied upon heavily point new south wale appropriate court lie fact proceeding give rise claim conducted court state however due contractual term requiring litigation pursued new south wale rather elsewhere litigation reached conclusion subsequent litigation likewise properly commenced new south wale intimately tied gone none consideration apply present case engagement firm solicitor intention work required done fulfill retainer would done lawyer situated western australia would effectively run case western australia occasional visit new south wale required particular trial plaintiff specifically chosen lawyer within western australian branch thought particular skill necessary successfully conduct litigation required perspective see advantage adjudicating present dispute would enjoyed court new south wale original action although genesis present action confer advantage see impinges determination present action matter come queensland defendant wishing remove action new south wale view matter finely balanced fact connection western australia marginally stronger new south wale persuades action remain state application dismissed certify preceding paragraph comprise reason decision district court western australia accourt officer17 december 2021