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V00_02694 [2001] MRTA 1611 (19 April 2001).txt	v00 02694 2001 mrta 1611 19 april 2001 last updated 25 october 2005 2001 mrta 1611catchwords student substantial compliance condition condition 8202review applicant abovetribunal migration review tribunalpresiding member lindsay fordmrt file number v00 02694dima file number paper onlydate decision 19 april 2001at melbournedecision tribunal affirms decision review refuse grant student temporary class tu visa subclass 560 visa applicant statement reason decisionapplication reviewthis application review decision made delegate minister immigration multicultural affair delegate visa applicant applied student temporary class tu visa subclass 560 14 march 2000 d1 f 17 19 delegate decision refuse grant visa made 26 april 2000 t1 f 8 9 visa applicant lodged application review tribunal 24 may 2000 t1 f 1 6 jurisdiction standingthe visa applicant lodged valid application review decision reviewed tribunal legislation policythemigration act 1958 act various regulation made principally themigration regulation 1994 regulation provide different class visa criterion grant reaching decision tribunal bound act various regulation written direction issued minister section 499 act matter may subject policy found publication produced department immigration multicultural affair dima procedure advice manual 3 pam 3 migration series instruction msi tribunal required regard policy apply unless cogent reason general term person may considered visa complies criterion tribunal must affirm decision review one criterion essential grant visa met hand tribunal find one criterion met may remit application visa dima direction specified criterion met matter minister delegate consider remaining criterion tribunal consideration therefore usually limited might described criterion dispute legislation policy relevant review legislation migration act section 360 1 362b 1 and379amigration regulation schedule 2 part 560and schedule 4 condition 8202policy migration series instruction msi legislative framework guideline found procedure advice manual 3 pam 3 case pradhan v minister immigration multicultural affair 1999 fca 1240baidakova v minister immigration multicultural affair 1998 fca 1436the tribunal generally regard regulation stood time visa application subsequent amendment may apply circumstance evidencethis application series adjournment hearing first scheduled 14 september 2000 t1 f 68 adjourned 11 october 2000 t1 f 72 tribunal advised friend visa applicant visa applicant sydney olympics visa applicant attend scheduled date person visa applicant house said visa applicant still sydney expected back fortnight hearing scheduled 23 november 2000 t1 f 75 day hearing tribunal received letter dated day visa applicant claiming returned melbourne wanted time complete architectural portfolio submit tribunal t1 f 78 hearing adjourned 15 december 2000 t1 f 80 date changed 20 december 2000 t1 f 82 member unavailable 15 december 28 december tribunal received letter medical certificate visa applicant saying able attend hay fever t1 f 83 4 87 hearing scheduled 13 march 2001 t1 f 91 visa applicant asked 7 day complete portfolio hearing adjourned 4 april 2001 visa applicant advised extension would granted t1 f 97 9 3 april 2001 visa applicant sent email tribunal requesting time complete portfolio tribunal refused adjournment informed visa applicant e mail letter decision would made absence attend visa applicant e mail address used reliable method contacting previous attempt letter telephone fax belatedly responded claim visa applicant address hearing arranged determination review 4 april 2001 visa applicant given advance notification writing required section 360 1 379a act scheduled day hearing visa applicant attend circumstance tribunal proceeded section 362b 1 act determine review without conducting hearing tribunal regard document dima file document file material submitted behalf visa applicant tribunal following document available review t1 mrt case file folio numbered 1 106d1 dima paper folio numbered 1 26the visa applicant aged 21 first arrived australia 12 february 1998 holder student temporary class tu visa subclass 560 granted 21 january 1998 expired 15 march 2000 t1 f 13 15 applied visa 14 march 2000 d1 f 17 19 refused 20 april 2000 basis refusal failed satisfy delegate complied substantially condition visa period 21 january 1998 15 march 2000 t1 f 15 full period visa criterion dispute application review lodged tribunal 24 may 2000 t1 f 1 5 visa applicant currently enrolled diploma building design drafting rmit confirmed college d1 f 20 however enquiry made rmit tribunal 13 march 2001 revealed enrolled either year 2000 2001 t1 f 92 rmit could say whether satisfied course requirement original enrolment information indicates visa applicant course commenced 16 february 1998 concluded 31 december 2000 d1 f 20 provided copy academic result 1998 1999 1998 passed five eighteen subject undertook failed thirteen 1999 passed one thirteen subject d1 f 16 received high distinction 1 subject distinction 2 pass 3 failed 25 31 subject enrolled period d1 f 16 provided information tribunal outlining reason poor performance t1 f 4 essence chosen diploma building design course realise time going achieve anything architect needed bachelor architecture course became disillusioned lost interest motivation said application investigating transfer bachelor degree course visa applicant submitted various drawing tribunal establish proficiency presumably potential architect bundle material t1 f 59 f 77 83 102 4 also wrote wanted architect age 15 wanted undertake architecture course 5 6 year father would allow 2 year diploma course wanted design creative work understand working drawing construction detail like measurement gutter drain roof framing etc claimed got high distinction design subject concluded hate school hate building construction hate working drawing said started hide uni library started architecture self study life provided evidence architectural book read mainly overdue notice t1 f 27 51 visa applicant drawing sketch varied highly stylised traditional work included pencil charcoal sketch building average quality exceptional contained flaw inaccurate perspective visa applicant particularly proud drawing sketch made proposed building child named grasshopper building intended mimic shape insect untrained eye decided lack space infrastructure required support also run contrary one axiom architecture architecture try mimic nature seems visa applicant reading may covered chose ignore findingsvisa class tu contains three visa sub class subclass 560 student subclass 562 iranian postgraduate student subclass 563 iranian postgraduate student dependant visa visa applicant applied subclass 560 student visa event ineligible others iranian national schedule 2 part 560of regulation specifies visa class applicant australia must hold previous substantive visa eligible apply class tu visa visa applicant satisfies requirement previous substantive visa class tu visa applicant subclass 560 student visa must satisfy criterion set inpart 560of schedule 2 regulation central case issue regulation 560 213 applies application made within australia present case requiring applicant complied substantially condition imposed visa held last held condition visa applicant said observed condition 8202 provides visa holder must satisfy course requirement somewhat softened regulation 560 213 case shore visa invokes condition requires substantial rather absolute compliance applies applicant previous visa rmit could say whether visa applicant met course requirement 1998 1999 academic year result would make highly unlikely also material enrolled course enrolled course context guideline pam 3 state dima officer interview student suspect complying condition consider matter whether circumstance reasonably beyond student control e g absence failure due illness non elective surgery whether student able provide evidence support circumstance e g medical certificate whether student decided leave australia enrolled another education provider another course would meet legislative requirement granted subclass 560 visa discussed inbaidakova v minister immigration multicultural affair 1998 fca 1436 12 november 1998 katz j referred matter taken account holding whether person regarded substantially complied condition quantitative matter question proportionality also qualitative matter may concern factor bona fides applicant person sought comply condition made innocent error thwarted complying condition fault may said substantially complied condition distinct person knowingly disregard condition honour also pointed matter relevance determination question including nature breach significance breach especially reference purpose visa granted whether applicant deliberately flouted condition applicant failed appreciate breach condition anything contributed failure present case visa applicant failure meet course requirement due disillusionment choice course doubt combined immaturity responded bothering subject suit creative talent belief posse ultimately opted course entirely little doubt dreamer named email address little concept demand life drawing inspirational standard might transcend need educational qualification yet shut course would provide technical foundation skill need hope achieving dream given evident visa applicant author problem rather someone caught circumstance beyond control heeded father advice committed diploma course would chance attaining ideal rather predicament created considering course beneath tribunal find failed comply condition 8202 previous visa therefore fails meet requirement regulation 560 213 visa subject review conclusionthe visa applicant meet condition dispute grant visathat subject review decisionthe tribunal affirms decision review refuse grant student temporary class tu visa subclass 560 visa applicant
Owners Strata Plan 51673 v Fair Trading Administration Corporation [2009] NSWSC 816 (14 August 2009).txt	owner stratum plan 51673 v fair trading administration corporation 2009 nswsc 816 14 august 2009 last updated 20 august 2009new south wale supreme courtcitation owner stratum plan 51673 v fair trading administration corporation 2009 nswsc 816jurisdiction equityfile number 55059 2008hearing date 3 august 2009judgment date 14 august 2009parties owner stratum plan 51673 plaintiff fair trading administration corporation defendant judgment tamberlin ajlower court jurisdiction applicablelower court file number applicablelower court judicial officer applicablecounsel f corsaro sc plaintiff l olsen sc defendant solicitor koffels plaintiff legal service office fair trading defendant catchword building construction building servicescorporation act 1989 statutory insurance scheme indemnity loss notification defect referee report time limitation whether notification defect sufficient summary judgment payment made mistake fraud defence change position reliance good faith onus proof awareness sufficiency defencelegislation cited building servicescorporations act 1989building service corporation regulation 1990strata title act 1973category principal judgmentcases cited abigroup v peninsula balmain 2001 nswsc 752 2002 18 bcl 15fair trading administration corporation v owner corporation sp 43551 2002 nswsc 624studdert j mccallum development pty ltd v owner corporation stratum plan 53098 2002 nswsc 1103super pty ltd v sjp formwork aust pty ltd 1992 29 nswlr 549walter construction group ltd v walker corporation ltd 2001 nswsc 283 2001 47 atr 48texts cited decision order 1 referee report m grey adopted 2 defendant ordered pay plaintiff sum 3 017 875 plus gst interest 19 june 2009 3 defendant pay plaintiff cost agreed assessed taxed 4 liberty apply 12 hour notice judgment supreme courtof new south walesequity divisiontechnology construction listtamberlin ajfriday 14 august 200955059 2008 owner stratum plan 51673 v fair trading administration corporationjudgment1his honour plaintiff stratum seek order referee report m janet grey adopted entered judgment court 2 report arises reference court m grey expert referee inquiry report pursuant order made 28 november 2008 defendant ftac opposes motion ground m grey made legal factual error misinterpreting provision building service corporation comprehensive insurance scheme failed properly take account operation time limitation alleged affected conclusion whether claim time barred 3 allegation m grey erred finding render building major structural component expert evidence otherwise support finding evidence demonstrated render provide supporting structure wall decorative feature 4 third error alleged m grey exercised discretion extend time without giving proper reason failed take account evidentiary obligation plaintiff demonstrate claim made time circumstance onus satisfy ftac delay notification due circumstance beyond control 5 issue general term whether error made consequence follow relation adoption report factual background6 proceeding arises defect construction pyrmont mixed 156 lodge stratum unit development 231 harris street pyrmont development company built two apartment block referred northern building southern building northern building seven story high southern eight story building back common place pre stressed reinforced concrete construction fill cavity brick wall roof area development waterproof thick membrane concrete taped hessian pebble ballast system 7 original developer project evantang development pyrmont pty ltd arranged design construction development building work commenced january 1995 completed december 1995 8 building work carried 9 1 thebuilding service corporation act1989 nsw bsc act provided establishment building service corporation comprehensive insurance scheme residential building work set form 4 schedule 1 thebuilding service corporation regulation1990 nsw designed provide indemnity loss rectifying defective work bsc act building service corporation bsc created function providing insurance scheme home owner bsc abolished scheme remains force relation subject development defendant ftac stand place bsc purpose insurance scheme 9 stratum established thestrata title act1973 nsw registration stratum plan subject building 18 december 1995 principal responsibility managing common property benefit owner beneficiary clause 4 1 scheme successor title owner land residential building work done issue work carried builder development defective number agreed structural defect including matter water penetration due defective waterproofing membrane work leaky bathroom delamination external render crack 10 ftac accepts stratum qualified benefit scheme maintains entitled indemnity rectifying agreed defect 11 common ground ftac considers received notice defect purpose scheme way building inspection service report prepared stratum maunsell australia pty ltd maunsell dated 25 october 2001 later report respect rectification defect development prepared stratum sutech pty ltd sutech dated july 2003 12 dispute quantum loss assessment stratum loss ultimately depend factual finding whether specific claim made stratum come within scheme stratum contends agreed defect indemnified scheme ftac liable pay quantum agreed quantum report 13 clause 5 scheme relevantly provides ftac indemnify loss reasonably incurred beneficiary respect residential building work rectifying bad workmanship loss repairing damage caused dwelling defect building 14 clause 7 scheme concerned time limit notice 15 relevant provision clause 7 follows 7 1 subject subclause 2 qualify benefit scheme beneficiary must notify corporation writing matter thatcould give riseto loss referred clause 5 5a within following time loss relation incomplete residential building work within 12 month contract date ii date provided contract commencement work iii date work ceased project whichever latest b loss relating head claim clause 5 1 e incurred rectifyingmajor structural defectsor repairing damage dwelling occurred consequence major structural defect within 6 month beneficiary first becomes aware defect later 7 year commencement insured building work also insured owner builder work ii date issue owner builder permit insured owner builder work c loss relatingtoheads claimin clause 5 1 e referred paragraph b within 6 month beneficiary first becomes aware defect later 3 year commencement insured building work also insured owner builder work ii date issue owner builder permit insured owner builder work 7 2 corporation may extend time specified sub clause 1 satisfied delay notification due circumstance outside control beneficiary emphasis added 16 clause 7 beneficiary becomes entitled insured benefit scheme provides beneficiary provides written notice matter thatcouldgive rise loss scheme reference could importance application 17 clause 10 scheme provides despite clause 7 2 ftac hasno liabilityunder scheme 10 year commencement residential building work relation scheme appliesfor reason attributable work adoption referee report legal principles18 applicable legal principle well settled substantial dispute party relation concise summary relevant principle judgment gleeson cj insuper pty ltd v sjp formwork aust pty ltd 1992 29 nswlr 549at 562 563 honour made following observation rule party dissatisfied referee report entitled right require judge reconsider determine afresh issue whether fact law party may desire contest judge decision reviewed error law perversity manifest unreasonableness general right review appeal way rehearing inconsistent object purpose rule productive delay expense hardship practical effect appointing referee simply add extra level hierarchy decision maker given case important bear mind modern trend encouragement alternative dispute resolution avoid minimize litigation achieve final binding result view consistent right referee conduct reference think fit unconstrained rule evidence judge reviewing report deciding whether adopt vary reject judicial discretion exercise manner consistent purpose rule broad setting referred far subject dissatisfaction referee report question law application legal status establish fact proper exercise discretion would require court consider determine matter afresh undesirable attempt closely confine manner discretion exercised matter take account nature complaint made report type litigation length complexity proceeding referee would frustrate purpose achieving whole partial resolution dispute alternative orthodox litigation allow reference treated kind warm real contest judicial review may granted error principle absence excessive jurisdiction patent misapprehension evidence may reason rejecting would perversity manifest unreasonableness fact finding principle followed number subsequent case includingwalter construction group ltd v walker corporation ltd 2001 nswsc 283 2001 47 atr 48andabigroup v peninsula balmain 2001 nswsc 752 2002 18 bcl 15 19 ftac refers decision ofstuddert j mccallum development pty ltd v owner corporation stratum plan 53098 2002 nswsc 1103for proposition clause 7 place obligation claimant scheme notify matter thatcouldgive rise loss question honour observed language clause construed narrowly beneficial nature legislation 20 ftac refers one purpose scheme ensure fiscal impact scheme minimal effect public purse refers public policy practical reason imposition statutory time limitation ftac say possible recover monies paid scheme builder must able investigate claim prove breach builder turn requires timely knowledge actual complaint ftac say notification must identify broad heading damage sufficient enable investigator locate understand problem ftac case21 ftac submits m grey erred finding defect identified year later case 10 year since time period began run commencement building work covered scheme represented systemic defect construction 22 submitted failed properly take account fact evidence disclosed part premise affected defect others unaffected conclusion said unsupported evidence decision failed disclose reasoning process adopted finding defect systemic also reasoning said flawed constituted error law 23 addition ftac say m grey failed take proper account impact clause 10 scheme remove liability expiry 10 year commencement work reason attributable work ftac say clause operates disallow claim defective work made 10 year commencement building way example ftac refers fact 156 unit premise plaintiff asserted 74 defective hob 89 defective wall cavity one result defective hob wall cavity said give rise water penetration associated damage however 12 hob 14 cavity notified within prescribed time limit said error referee wrongly accepted cause defect systemic failure notwithstanding defect manifested many unit passage 10 year date registration stratum plan reason given m grey manifestly wrong say intention legislation close scheme extinguish liability whatever kind passage 10 year date commencement building work cause otherwise builder insurer would liable indefinite future defect owner could link notified defect referee report24 setting factual background relevant section scheme m grey referred beneficial nature scheme m grey referred decision burchett aj infair trading administration corporation v owner corporation sp 43551 2002 nswsc 624 honour observed 24 relation notification 7 scheme important note six month measured first awareness beneficiary someone else defect although must notified described matter could give rise loss actual defect precise sense cause matter degree imprecision notice seems contemplated provision framed emphasis added 25 m grey noted schedule homebuilding regulationsdefined major structural defect follows inherent damaged induced defect element provides essential supporting structure whole part dwelling example footing beam column suspended slab render element inadequate structural purpose b substantial functional element essential habitability dwelling example panel wall masonry veneer wall slab ground kind element adequate structure purpose emphasis added 26 m grey noted agreement party defect considered major structural defect element must function keeping wind rain letting light air essential suitability fitness habitation defective composition make form manner construction provide characteristic required fulfil intended purpose notification27 m grey considered issue notification particular considered whether notification manifestation particular defect one number unit could notice defect unit described defect systemic defect noted counsel ftac identified issue relation time notification defence whether notification possibility claim certain apartment permit claim respect apartment even latter claim would otherwise time ii whether notification claim allows claim systemic defect whether permit claim made indefinite period 28 m grey noted ftac conceded notification made time merely particularisation notification already made time limitation defence would fail 23 m grey stated defendant conceded latter notification merely particularisation notification already made time limitation defence would fail example relation first item defect e water penetration cavity external wall hob ftac submitted thirdly clause 10 scheme make quite clear claim accepted 10 year commencement word reason ifthe learned referee determines thatthe notification water penetration later notification merely particularisation notification already made point fails otherwise operates complete bar plaintiff claim respect latter notified defect emphasis added 29 24 m grey said specific wording notification item claimed whether current claim amounted particularisation matter entirely new matter considered separately relation defect item claimed 30 matter therefore considered referee basis clause 10 defence would apply notification particularisation notification already made approach taken ftac submission reply hearing 35 31 m grey dealt defect item convenient illustrate principle approach consider way dealt item 1 involving defective wall cavity hob took similar approach relation defect relation timely notification 32 m grey first noted expert evidence wall cavity junction wall column flashing abutted onto adjoining structure watertight manner evidence fault workmanship described problem hob membrane intended waterproof hob painted outside skin waterproofing poor quality result water penetrated hob habitable area found defective construction allowed water penetrate wall hob habitable area wall hob substantial functional element intended keep rain defective construction permitted enter concluded major structural defect 33 next question addressed whether systemic failure whether adequate notice given noted march 2009 defect report established 156 unit 74 defective hob 89 defective external wall cavity referred submission ftac unit 12 unit defective hob 14 unit defective external wall cavity notified within time ftac admitted liability latter defect notification denied liability remaining defect 34 proceeded consider ftac outline submission detail referred extract 25 october 2009 maunsell report 2003 sutech report 35 addressed question whether initial notification gave adequate noticeonlyof matter could give rise loss specific unit identified sutech report whether notification sufficient give notice loss arising additional unit identified later suffering problem observed expert uncontested evidence water penetration problem cavity wall hob resulted two cause considered maunsell report made clear likely defect identified time notice given accepted expert evidence reason effect underlying defect may become apparent unit time maunsell report prepared 2001 found underlying defect present beginning widespread sense systemic 36 m grey proceeded give reason reaching conclusion first one large development constructed one contractor membrane cavity flashing found defective area reasonable assume possibility likelihood systemic failure application material leading likely manifestation problem apparent area second referred relaxed requirement notice outlined burchett aj quotation indicating detailed identification actual cause necessary notification stage observed notice given stratum identified water ingres entrapment cavity together poor waterproofing junction wall floor opinion sufficient give notice matter likely give rise loss far loss arose wall cavity hob defect found extension time37 noted department exercised discretion extend statutory six month notification period running time stratum first became aware defect long period ownership developer apparent ongoing willingness contract rectify defect 38 decided reason give 46 decision department exercise discretion extend time relation major structural defect properly notified reasonable appropriate reasonable appropriate infer time extension would apply additional matter rejected department notice properly given nevertheless exercised discretion extend six month period regard ongoing negotiation stratum building contractor 39 conclusion relation item 1 wall cavity hob follow 51 conclusionin conclusion reason outlined find defective construction cavity wall hob claimed plaintiff area outlined in 2 1of defect report 2009 major structural defect sufficient notice given within seven year limitation period discretion exercise six month notification period date defect became known stratum exercised circumstance scheme plaintiff entitled indemnity cost rectifying defect 40 m grey considered remaining 10 item using similar reasoning respect three item found notice given insufficient notify matter gave rise loss associated need replace repair remaining case found notice given report sufficient 41 finally noted expert agreed rectification cost party adopted agreement render42 relation issue whether delaminating render major structural defect purpose scheme concluded render component exterior wall wall render together must seen single integral feature regard expert evidence 43 ftac submitted delaminating render general defect saying purpose merely decorative defect composition make manner form construction render delaminating would justify finding structural defect simply water entering slab m grey referred expert evidence area building render delaminating falling render could cause danger injury person consequent danger particular pedestrian resident maintenance worker therefore made building dangerous inhabit 44 although agreed render provide supporting structure principal purpose decorative expert evidence render assisted preventing water getting cavity putting load internal waterproofing system render substantial place 50 60 mm thick 50 per cent width outer skin brickwork led water getting cavity render normal 10 12 mm evidence thicker render 10 mm greater need reinforcement support bond render case like paint would aesthetic effect accepted evidence design badly executed allowed ingres water 45 concluded therefore render delaminated underlying defect causing major structural defect reasoningnotification46 clause 7 1 notice must respect matter could give rise loss notifying defect rectifying defect due bad workmanship use expression could important term could taken alone indicates possibility potentiality connotes spectrum cause ranging something remotely possible something likely context regulation term requires something le probable likely connotes reasonable possibility 47 evident case law language clause 7 necessary notification stage precisely specify exact underlying cause give rise manifestation loss arising exercise notify matter could give rise loss arising necessity rectify defect insured work due bad workmanship ftac submitted m grey necessary particularise cause notification stage otherwise ftac would opportunity protect interest 48 practical term however often possible immediately identify specificity underlying cause defect describe manifestation symptom problem determination actual underlying defect often question expert evidence notification indicate relevant circumstance illustration problem relation defective hob wall cavity 156 unit building 12 defective hob 15 defective cavity notified within time however claim made respect 74 hob 89 defective cavity wall ftac accepted liability respect hob cavity wall defect notified within time rejected remainder outside limitation period whether common underlying cause may depend matter number defect common feature time span defect manifested 49 m grey point referee report october 2001 maunsell report included following statement resident recorded response sheet landlordmoisture ingressin ceiling wall due limited access apartment inspection recorded defect survey december 2000 questionnaire respect october 2001 taken consideration preparation remedial recommendation emphasis added 50 july 2003 sutech report elaborating initial notice specific example problem notified maunsell report given relation wall follow respect unit unit s102 water entrapment cavity poor waterproofing junction wall floor allowinglateral water penetration emphasis added 51 elaboration repeated respect range defect unit defect identified unit claim approved principle 52 m grey saw task determine initial description gave adequate notice matter could give rise loss specific unit identified sutech report whether description notification sufficient give notice loss arising unit identified suffering problem later report ftac contended time 53 referred uncontested expert evidence water penetration problem cavity wall hob resulted two cause respect underlying defect may become apparent unit time gave reason paragraph 42 43 report finding adequate notice matter could give rise loss already summarised step took dealing sufficiency notification concerning item took similar line reasoning analysis relation evidence item sufficiency timeliness notification 54 noted considering expert evidence find notification respect item namely item 8 corroding reinforcement item 9 cracking concrete sufficient accordingly claim failed 55 question whether notification defect event manifestation 156 residential unit building nature indicate one underlying systemic cause substantially different classic question fact degree calling expert opinion light substantial body expert evidence case fact m grey expert decision maker performing task obliged fact consider relevant principle bring expertise bear assessing circumstance reaching determination relationship nature defect rectified 56 accept case necessary every manifestation underlying cause notified within prescribed period provided notification matter thatcouldgive rise loss arising need rectify bad workmanship even though manifested later persuaded m grey fallen error fact law would justify refusal accept report matter ground timely notification item 6 render repairs57 relation item 6 concern render repair ftac submits heavy cement render face building delaminated classified major structural defect rather general defect purpose clause 7 time limitation 58 m grey decided render major structural part building integral wall delamination arose major structural defect hearing ftac contends cement render decorative distinct structural feature therefore fault relation render work general defect 59 83 93 report m grey address issue detail refers expert evidence refers definition housing regulation scheme major structural defect inherent damage induced defect substantial functional element essential habitability dwelling noted evidence expert witness falling render face building onto public place could impact habitability building causing danger person entering leaving building resident whose terrace projected beyond render maintenance worker refers expert evidence render assisted preventing water getting cavity thereby putting load internal waterproofing system also accepted expert evidence bad execution render wall design fact excessively thick achieve vertically aligned finish 60 question weight could given expert evidence importance determining whether defect caused structural defect question fact degree referee one respect court readily set aside finding 61 persuaded error shown relation characterisation render claim 62 regard evidence refers expertise satisfied error shown reason conclusion m grey respect extension time63 clause 7 2 time notification may extended delay notification due circumstance beyond control beneficiary m grey exercised discretion extend six month time limit regard evidence ongoing negotiation stratum contractor 64 ftac submits exercise discretion error reason given show extension time beyond control stratum ftac submits m grey take proper account onus stratum make claim extension given reason extension ftac considers sufficient ftac refers attitude contractor say indicated negotiation certain period would fruitless also refers alleged dilatory conduct stratum making claim 65 three reason submission made first m grey expert referee exercising broad discretion reference heard detailed evidence submission circumstance court lightly overturn exercise broad discretion unless clear error principle fact exercise discretion sufficient show different conclusion could reached second essentially argument exercising discretion reached wrong conclusion give proper weight consideration raised ftac question degree determination third gave reason ongoing negotiation contractor counter submission ftac contractor early stage indicated unwillingness negotiate notoriously difficult evaluate course negotiation party stratum contractor said finally concluded whether negotiation would fruitless accordingly regard consider submission establishes ground made accepting report m grey clause 1066 clause 10 scheme refers clause 7 2 permit extension time ftac satisfied delay notification due circumstance outside control beneficiary effect clause 10 noextensionsof time 10 year period clause 10 cast wide term provide nofurtherliability arise scheme expiry 10 year commencement building work reason whatsoever related building work 67 clause view affect claim already notified within 10 year relation systemic defect defect arising underlying cause word significant term liability liability crystallised within 10 year period become existing liability later manifestation arising underlying defect excluded issue additional liability 68 ftac submits interpretation could potentially expose innumerable claim indefinite future however later manifestation unit part common property subject claim outside 10 year statutory period necessary claimant establish manifestation arises manifestation previously notified underlying defect practical term become increasingly difficult time pass period 10 year establish nexus nexus previously notified defect established appropriate evidence claim cannot said inconsistent beneficial intent scheme 69 note matter m grey ftac appears accepted expiration 10 year period provided clause 10 prevent claim made liability attaching case defect particular unit common property manifestation particularisation defect already notified also hearing address reply referring clause 10 ftac submitted unless properly construed defect one already notified cannot claimed march 2005conclusion70 reason make order 1 referee report m grey adopted 2 defendant ordered pay plaintiff sum 3 017 875 plus gst interest 19 june 2009 3 defendant pay plaintiff cost agreed assessed taxed 4 liberty apply 12 hour notice last updated 19 august 2009
Mortada v R [2014] NSWCCA 36 (24 March 2014).txt	mortada v r 2014 nswcca 36 24 march 2014 last updated 25 march 2014court criminal appealnew south walescase title mortada v rmedium neutral citation 2014 nswcca 36hearing date 4 16 december 2013decision date 24 march 2014before leeming ja hall j schmidt jdecision 1 extension time appeal granted 2 leave rule 4 granted 3 appeal dismissed catchword criminal law appeal conviction failure give propensity direction contrary ruling evidence admitted whether deliberate forensic decision seek direction whether guilty verdict inevitable substantial miscarriage justice proviso applied dismiss appeallegislation cited crime act 1900 nsw 193bcriminal appeal act 1912 nsw 6 1 criminal appeal rule r 4drug misuse trafficking act 1985 nsw s 25 29 sch 1cases cited baini v queen 2012 hca 59 246 clr 469belhaven stenton peerage 1875 1 ac 278brs v queen 1997 hca 47 1997 191 clr 275burrell v r 2009 nswcca 193cesan v queen 2008 hca 52 236 clr 358dearman v dearman 1908 hca 84 1908 7 clr 549dib dib v r 1991 52 crim r 64djv v r 2008 nswcca 272 2008 200 crim r 206gillies v director public prosecution nsw 2008 nswcca 339gilham v r 2012 nswcca 131giourtalis v r 2013 nswcca 216jdk v r 2009 nswcca 76 2009 194 crim r 333kuhl v zurich financial service australia ltd 2011 hca 11 243 clr 361lee v r 2013 nswcca 68lundy v queen new zealand 2013 ukpc 28quartermaine v queen 1980 hca 29 1980 143 clr 595r v giovannone 2002 nswcca 323 140 crim 1reg v kilbourne 1973 ac 729shepherd v queen 1990 hca 56 1991 170 clr 573stafford v state 1998 ukpc 35 1999 1 wlr 2026versi v r 2013 nswcca 206weiss v queen 2005 hca 81 224 clr 300wilde v queen 1988 hca 6 1988 164 clr 365category principal judgmentparties ali youssef mortada appellant regina respondent representation counsel counsel p strickland sc appellant p ingram sc crown solicitor solicitor bannister lawyer appellant solicitor public prosecution crown file number 2009 270970decision appeal knox dcj date decision 28 september 2012 court file number 2009 270970judgmentthe court appellant mr mortada appeal conviction offence thedrug misuse trafficking act 1985 nsw disputed appeal trial judge committed appellable error failing give warning use propensity reasoning summing evidence adduced previous six week honour indicated informally argument also formal ruling admitting evidence would neither crown defence reminded three week later crown approach appeal either leave granted else appeal dismissed reason proviso in 6 1 thecriminal appeal act 1912 nsw appeal therefore turn two narrow point first whether crown contends mr mortada counsel end trial made deliberate forensic decision ask direction propensity reasoning relation evidence crown case crown said decision deliberate leave appeal r 4 thecriminal appeal rulesshould refused reason follow satisfied failure result deliberate forensic decision second requires examination evidence trial crown made submission appeal resisting appellant main proposition namely failure seek direction inadvertent appellable error instead crown contended even court could find guilty verdict inevitable appellant case consequence failure give propensity direction lost real chance acquittal result proviso could applied reason follow conclude appellate record principally incontrovertible documentary telephonic fingerprinting evidence made guilty verdict inevitable substantial miscarriage justice applying proviso appeal dismissed procedural historythe appellant mr ali youssef mortada born lebanon married wife manal came wife australia 2000 21 two daughter became australian citizen 2005but subsequently returned lebanon 2008 wife obtained described reversible divorce evidence divorce could reversed court order although regarded effective islamic law evidence entirely clear nothing turn present purpose importantly mr mortada visited australia october 2008 custom officer mr jerome singh detained made record item possession visited australia 2009 arriving malaysia airline flight business class 20 may 2009 arrested morning 17 june 2009 shortly scheduled return lebanon mr mortada charged indictment three offence first supplying commercial quantity heroin 496 75 gram contrary toss 25 2 and29of thedrug misuse trafficking act count 2 3 dealing two amount cash 16 350and 21 930 proceeds crime contrary tos 193b 1 thecrimes act 1900 nsw second count originally extended amount u 2 800 indictment amended consent remove foreign currency amount late trial 28 september 2012 slightly day deliberation jury returned verdict guilty three count following six week trial mr mortada represented mr kintominas counsel experienced barrister practice two decade mr mortada sentenced total period imprisonment 10 year non parole period 6 year 8 month expiring 4 may 2018 maximum penalty supply count imprisonment 20 year fine 3 500 penalty unit standard non parole period 10 year applies offence respect count mr mortada sentenced term imprisonment 9 year 4 month non parole period 6 year sentence imposed second third count wholly concurrent period 3 year non parole period 2 year expiring 4 september 2013 notice appeal conviction filed time 1 august 2013 series notice intention appeal previously filed expired application extension time filed time inadvertence appellant solicitor deposed circumstance crown oppose short extension time required appellant opinion appropriate granted appeal heard four month commenced nevertheless consequence delay commencing mr mortada served entirety non parole period sentence second third count convicted appeal extend either conviction although two ground appeal senior counsel appellant conceded second could stand record view concession properly made unnecessary say anything second ground first ground appealthe first ground appeal term miscarriage justice caused failure trial judge direct jury evidence crown relied upon prove actual supply prohibited drug could used prove deemed supply charge count 1 b evidence could used propensity evidence given crown attitude ground effect relying proviso mr kintominas evidence inadvertent error accepted necessary turn nature party case trial nature case trial overviewon evening 18 june 2009 police company hotel staff executed search warrant room 1417 sheraton park hotel central sydney elizabeth st video recording made time sealed bag containing 496 75 gram heroin found suitcase room schedule 1 thedrug misuse trafficking actprovides traffickable quantity heroin 3 gram commercial quantity 250 gram section 29deems person possession traffickable quantity purpose supply deal evidence necessary summarise capable connecting mr mortada heroin found room also evidence capable connecting heroin mr abbas el dirani close relationship mr mortada undisputed evidenced example extensive telephone record flew australia flight 20 may 2009 arrested time company mr mortada time trial evidence mr el dirani returned lebanon granted bail opposition police warrant issued arrest appellant case mr el dirani impersonated said mr el dirani booked room sheraton appellant name order protect number item discovered room consistent mr el dirani present room therefore person possession drug money found appellant said knowledge room occupied neither heroin money found belonged accordingly central issue trial whether crown proved beyond reasonable doubt heroin possession mr mortada crown case appellant mr el dirani involved joint criminal enterprise supply prohibited drug mr mortada deny friend mr el dirani gave evidence well plumber folkloric keyboard player mr el dirani singer appellant met 2006 thereafter performed wedding birthday party syria dubai ukraine yemen africa well australia mr mortada gave evidence 18 19 september cross examined 19 20 21 24 25 september 2012 defence witness interposed mr mortada positive defence trial submission appeal visited australia order play four musical performance collect money owed various plumbing job receipt tendered client gave evidence paid cash claimed staying friend punchbowl gave evidence m hanan moussa mr rabieh el dirani defence said crown submit contrary el dirani relatively common name purpose reason without intending disrespect shall refer couple hanan rabieh avoid confusion mr abbas el dirani mr mortada said knew nothing room 1417 sheraton park said explanation much evidence linking heroin found hotel room mr el dirani access used credit card driver licence make appear heroin mr mortada necessary return detail defence general thrust use word trial judge spoken absence jury simple blacken mr el dirani wherever possible made clear day one common ground person posse chattel even manual possession hunt j said indib dib v r 1991 52 crim r 64at 66 67 accused must property either manual possession place person acting concert may go without physical bar order obtain manual possession present case crown seek establish accused possession property found within manual possession rather premise access must order establish beyond reasonable doubt accused rather anyone else possession property persuade jury accused legal right exclude person premise property situated acting concert observed may clearer refer acting jointly rather acting concert context lee v r 2013 nswcca 68at 267 beech jones j basten ja hall j agreeing beech jones j said appeal 280 fundamental aspect concept possession context exclusive control chattel applying principle circumstance trial disputed sufficient crown prove beyond reasonable doubt mr mortada occupied room 1417 heroin found however crown assumed burden excluding possibility mr el dirani occupied room exclusion mr mortada although booked name suggestion defence case mr mortada occupied hotel room mr el dirani someone else somehow secretly stored heroin without mr mortada knowledge issue binary either mr mortada occupied room therefore possession heroin else nothing room b discovery heroinon 17 june 2009 member security staff hilton hotel sydney block sheraton entrance george pitt street observed mr mortada mr el dirani sitting foyer extended period time behaving suspiciously including making multiple call different mobile phone called police observing pair approached searched counsel mr mortada suggest search lawful commenced 10 57am morning mr mortada flight 2pm time determined precision reference mobile phone record prominent crown defence case one handset found mr el dirani made 21 call morning 17 june including call 10 50 10 54 10 55 10 57 thereafter call made 4 hour one handset found mr mortada made 13 call morning 17 june including call text message 10 46 10 47 10 47 10 48 mr mortada found three mobile phone mr el dirani two police also discovered 16 350 50 100 dollar bill mr mortada person cash subject jury verdict second count indictment unchallenged appeal mr mortada told police money payment plumbing job large quantity cash also found mr el dirani men arrested separately detained eventually granted bail police applied search warrant two hotel room men believed staying room 1417 sheraton park room 3213 hilton hotel initial application refused following day 18 june 2009 staff hilton hotel discovered substantial amount cash safe room 160 050 well international money transfer slip indicating sum 56 750 transferred australia lebanon police applied search warrant time one issued room 1417 sheraton park search recorded sound video presence night duty manager 496 75 gram heroin discovered search police also discovered 21 930 safe amount subject third count jury verdict unchallenged appeal c evidence linking appellant room 1417on view great deal documentary circumstantial evidence connecting appellant room 1417 sheraton park necessary ultimately address detail evidence given crown reliance proviso need court review whole record trial weissat 47 convenient first instance give summary evidence time identifying defence case response first sheraton park registration slip completed name mr mortada gave mr mortada mobile phone number email address appeared signed although handwriting expert could exclude possibility somebody skilful simulating people writing could forged signature mr mortada denied signature secondly pre authorisation payment room dated 11 june 2009 made visa card discovered mr mortada possession arrested visa card also possession subject random check custom officer mr jerome singh sydney airport 29 october 2008 thirdly visa card issuer provided facility whereby text message would sent one mr mortada mobile phone nokia 8800 sapphire certain transaction processed phone mr mortada possession arrested text message discovered recorded transaction 1 795 sheraton park 11 june 2009 transaction card ending 2140 accepted aud 1 795 00 sheraton park sydney au 11 06 09 03 19 mr mortada gave evidence aware message asked mr el dirani said mr el dirani told used mr mortada credit card fourthly taken custody mr mortada fingerprinted form recording fingerprint contains handwriting stated address sheraton hotel sydney form state day birth signature address must written person whose fingerprint taken mr mortada agreed signature date birth written hand suggested wrote address suggested police police officer denied telling mr mortada state sheraton hotel address said told mr mortada could put address lebanon instead put address staying end trial mr mortada cross examined said police officer given separate piece paper written sheraton hotel copied put police officer fifthly various personal document found room 1417 relating mr mortada ex wife including authorised translation marriage certificate divorce certificate dated 27 october 2008 two day arrival australia 2008 also included commonwealth bank statement sent punchbowl post office box transaction 29 may 2009 account name mr mortada former wife mr mortada said kept personal paper pocket bag used carry musical instrument given mr el dirani concert previous weekend returned despite asked repeatedly sixthly also document relating two car hire agreement mr mortada name referred driver licence number matched one possession see also evidence sale voucher car hire company imprint visa card mr mortada nameand seemingly signed mr mortada mr mortada gave evidence mr el dirani hired rental car name driver licence seventhly safe room 1417 sheraton park contained nokia n95 mobile phone mr mortada counsel trial conceded 15 digit imei international mobile equipment identity number phone discovered mr mortada person october 2008 subjected random search custom officer sydney airport uncontroversial evidence first 14 digit imei number unique handset n95 contained incoming message personal nature linking mr mortada close time arrested mr mortada accepted contained personal photo holding pet dog mr el dirani brother holding stag shot africa march 2009 mr mortada said gave mobile phone mr el dirani march 2009 friend needed phone thereafter seen eighthly lithium carbonate prescription medicine found room 1417 lithium carbonate also found mr mortada possession searched sydney airport 2008 mr mortada accepted prescribed drug letter pharmacist explaining medicinal said ceased taking month ninthly legal aid duty solicitor appeared behalf mr mortada three occasion including 18 22 june 2009 visited gaol gave evidence gone sheraton park order collect mr mortada belonging sometime thereafter authorised writing mr mortada mr mortada denied authorised written authorisation evidence doubt occurred solicitor said practised 30 year asked go hotel room five six time mr mortada denied asked solicitor attend know nothing saying conversation solicitor disputed suitcase delivered solicitor mr mortada friend rabieh hanan claimed staying gave evidence recognise clothes suitcase discarded discovering high quality fake driver licence including one mr mortada name given mr mortada tendered trial defence relied fake driver licence support possibility mr el dirani well able impersonate mr mortada crown called evidence driver licence manufactured mr mortada arrested provided crown mr mortada released bail thirteen month arrest much evidence summarised greatest importance issue raised appeal documentary evidence relating transfer large sum money australia country overwhelmingly lebanon evidence consistent dealing proceeds crime mr mortada charged subject jury direction propensity reasoning western union receipt post notesmany western union money transfer slip receipt found safe room 1417 sheraton park dated 27 february 16 june 2009 majority dated period 21 may 16 june 2009 mr mortada australia reflected transfer money effected punchbowl post office case amount le 10 000 total amount 945 618 case transfer showed name address phone number either passport number driver licence number transferor name transferee evidence almost driver licence passport number correspond official record many mr mortada fingerprint also fingerprint could identified also qualified expert evidence handwriting mr mortada none transfer identified mr el dirani fingerprint although fingerprinting expert compared every fingerprint mr mortada mr el dirani fingerprint record take two example record transfer 4800 made 3 42pm 12 june 2009 imad assad dilbani alif kassem sender identified driver licence correspond government record second recorded transfer 4700 aida aldirani salim aldirani lebanon 11 25am saturday 13 june 2009 m aldirani provided australian passport number record passport number immigration database evidence save one passport either recorded immigration database else passport number match person named whilst driver licence number also non existent two match record one two m hanan moussa mr mortada said staying called defence case transaction transfer 9 440 m manal el dirani mr mortada former wife 2 46pm friday 12 june 2009 transfer took place roselands punchbowl post office m moussa denied cross examination made transaction lent driver licence either mr el dirani mr mortada police officer charge investigation obtained warrant inspect cctv record punchbowl post office reviewed people counter transfer effected various occasion men woman middle eastern appearance shown occasion one counter transaction recorded transfer recorded effected late evening time officer recognise anyone looked like mr mortada also found room 1417 sheraton park 40 pink yellow post note recording name phone number various person handwriting mr mortada searched 2008 nine post note located person formally conceded 40 post note safe included note found mr singh mr mortada 2008 save name amount crossed replaced others concession possible mr singh taken photocopy nine post note photocopy kept tendered trial time trial judge told jury certainly absolutely inference drawn mr mortada virtue fact search conducted immigration people airport arrived october 2008 post note stated name passport driver licence number expiry date date birth telephone number address name example onestated mamoun dazzar gave passport number expiry date date birth address condell park name mohamad daour mr mortada fingerprint post note found safe also link post note western union transfer receipt example western union transfer receipt dated 12 june 2009 transfer 4500 mamoun dazzar 2 47pm afternoon made punchbowl post office mr mortada admitted written nine post note evidence mr el dirani provided information give mr el dirani brother ahmad 2008 paper soiled flight written name post note given ahmad together underpants sock mother said ahmad given western union transfer receipt sometime australia 2009 asked give mr abbas el dirani according mr mortada fingerprint came document e defence objection request directionthe trial judge ruled argument 13th day trial evidence substantial transfer fund lebanon linked mr mortada fingerprint upon western union receipt relevant connecting appellant room sheraton park however honour accepted submission mr mortada counsel inference could drawn client conspiracy el dirani perhaps others see large amount money came australia via disbursement dissemination amount cash transaction report act limit require formal notification would way getting money country expect going suggestion event respect western union transfer found inference almost inescapable inference honour identified client involved drug dealing last trip evidence get jury talking scrap paper evidence get jury overwhelming prejudice sense submission direction honour could give mean sure honour could give carefully crafted direction explain danger et cetera prejudicial kind prejudice cured direction submission whether scrap paper written client 2008 effect making jury gravely strongly suspect would say jump conclusion involved drug running 2008 charged say would illegitimate inference powerful seductive inference one powerfully seducing say direction honour cure objection raised fairly late trial connection evidence mr singh crown opened tendered deal material capable supporting propensity reasoning scrap paper mr kintominas referring note containing identity information linked western union transfer lack precision hearing appeal formulation direction said given consequence may inferred stance taken crown appeal confining submission two point mentioned outset circumstance appropriate course proceed basis favourable appellant missing direction extended post note western union transfer scrap paper could linked mr mortada dealing proceeds crime trial judge indicated view course argument prejudice could cured direction course obliged take honour plainly sensitive prejudicial effect evidence confined crown tender eleven piece paper showing exact identity address detail people also shown post note honour subsequently gave formal rulingon objection included passage restricting tender 11 piece paper minimises prejudice suggestion much wider course dealing properly directed reasoning emotional difficulty evidence limited issue appealit convenient pause observe isnotin issue appeal one hand wasnotsaid defence mr singh evidence wrongly admitted trial judge erred concluding prejudice could met appropriate direction said evidence could support illegitimate propensity reasoning western union transfer receipt post note improperly admitted notwithstanding mr kintominas submitted kind prejudice cured direction hand wasnotsubmitted crown error failing give direction inbrs v queen 1997 hca 47 1997 191 clr 275 failure give direction relevant evidence could used support propensity reasoning led guilty verdict set aside new trial ordered sexual assault case reasoning extends case real risk jury may engage inappropriate propensity reasoning r v giovannone 2002 nswcca 323 140 crim 1at 99 plainly case mason p stated ingiovannone direction must given wherever necessary avoid perceptible risk injustice stance taken crown meant dispute purpose appeal evidence actual supply drug previous occasion including western union money transfer post note subject direction effect evidence could used link mr mortada hotel room could used improper propensity reasoning crown response appeal confined two proposition first absence propensity direction deliberate forensic decision counsel appearing mr mortada complete answer failure give direction second crown submitted guilty verdict inevitable sense verdict open jury evidence deal turn deliberate forensic decision crown submitted likely mr kintominas made forensic decision seek direction propensity reasoning submitted leave r 4 thecriminal appeal rulesshould granted may question whether fact r 4 applies given broader objection taken mr kintominas trial argument directed issue view take sufficient assume without deciding rule applies requires grant leave crown invited court infer deliberate forensic decision taken appellant case trial wealth evidence connecting mr el dirani buying selling drug closing address counsel said one thing strike course look el dirani phone message defence say clear involved selling buying drug message paper front plenty message would infer abbas el dirani dealing drug accordingly said appellant interest propensity direction substance theappellantwas inviting jury use propensity evidence conclude mr el dirani drug dealer evidence crown prosecutor agreement mr kintominas seeking direction matter relevant draw judge attention honour ruled relation mr singh evidence mr kintominas counsel mr mortada trial gave affidavit evidence sworn served shortly appeal heard effect trial lasted longer scheduled clashed pre arranged holiday arranged junior counsel former reader junior counsel trial commenced appearing around week four trial mr kintominas left consent trial judge summing swore affidavit unequivocally stage turn mind judge giving jury direction jury could use use evidence actual supply prohibited drug namely post note western union money transfer evidence type prove count one deemed supply charge make forensic decision seek direction appellant relies appeal seek obtain instruction solicitor appellant relation issue direction appellant relies appeal discussion junior counsel direction mr kintominas cross examined court length took place without objection argument fact court permitted occur taken endorsement practice case present normally basten ja said statement counsel belief doubtful relevance leeat 139 view take necessary express view circumstance evidence nature admissible cfgillies v director public prosecution nsw 2008 nswcca 339at 25 28 mr kintominas maintained consistently cross examination clear recollection aspect trial denied making forensic decision seek direction taken objection tender western union receipt trial judge admission basis due course direction use propensity evidence would given asked q stage summing aware course direction honour given jury point summing began earlier trial direction type originally believed would given learned trial judge proscribing prohibited propensity reasoning beginning summing given jury judge able work something crossed mind preoccupied number matter q know fact direction given beginning summing time summing began obviously material ascertain address issue mind asked concede whether possibility recollection error refused make concession added answer fully one course concede one may forgotten something one remember went say retained clear recollection forensic decision make trial everyday occurrence course trial particularly lengthy trial one error omission occur trial conducted human machine inherently implausible week unsuccessful objection tender mr kintominas forgot remind judge foreshadowed direction trial judge forgot although honour entitled expect either counsel draw point attention evidence state mind crown prosecutor would infer omitted remind trial judge said day 13 particular circumstance case fact leaving pre arranged vacation junior present remainder case far appears record present day 13 judge said direction would given mr kintominas experienced counsel made concession cross examination freely appropriately persuaded recollection december 2013 erroneous contrary evidence made deliberate forensic decision seek direction basis crown contended leave pursuant r 4 thecriminal appeal rulesshould refused rejected factual aspect crown first response appeal crown making submission contrary appellant submission direction given instead relying proviso appropriate leave granted rule extent necessary guilty verdict count 1 inevitable crown submissionsthe crown contends even trial judge given direction proscribing propensity reasoning light abundance available evidence inevitable mr mortada would convicted count 1 regard evidence properly admissible establish possession heroin support crown submission inevitable guilty verdict sufficient engage proviso may found english commonwealth decision seelundy v queen new zealand 2013 ukpc 28 160 161 andstafford v state 1998 ukpc 35 1999 1 wlr 2026at 2029 australian appellate decision may seem proceed basis substantial miscarriage justice appellate court persuaded guilty verdict inevitable applicable test new south wale appellant point much recognised gibbs j inquartermaine v queen 1980 hca 29 1980 143 clr 595at 600 610 brennan dawson toohey jj inwilde v queen 1988 hca 6 1988 164 clr 365at 372 373 inweiss v queen 2005 hca 81 224 clr 300 considering common form criminal appeal provision prior amendment 2008 high court said 45 emphasis added likewise single universally applicable criterion formulated identifies case would proper appellate court dismiss appeal even though persuaded evidence properly admitted trial proved beyond reasonable doubt accused guilt said however thatthere may case would proper allow appeal order new trial even though appellate court persuaded requisite degree appellant guilt case significant denial procedural fairness trial may provide example case kind incesan v queen 2008 hca 52 236 clr 358at 124 hayne crennan kiefel jj said necessary always sufficient step application proviso appellate court persuaded evidence properly admitted trial proved beyond reasonable doubt accused guilt offence jury returned verdict guilty conclusion guilt accused proved standard every case suffice show substantial miscarriage justice example circumstance consideration proved trial sufficient basis applying proviso provided byak v western australia case relevant statute required trial accused judge alone yield reasoned decision reason given appellant trial determination central issue tried case could said substantial miscarriage justice recent high court decision point isbaini v queen 2012 hca 59 246 clr 469 turned amended form proviso victoria therefore automatically translate new south wale act nevertheless point distinction mere inevitability guilty verdict absence substantial miscarriage justice made french cj hayne crennan kiefel bell jj 33 accordance principle bathurst cj agreement hidden button jj said ingiourtalis v r 2013 nswcca 216at 84 emphasis added necessarybut always sufficientpre condition operation proviso appellate court persuaded beyond reasonable doubt evidence properly admitted trial proved guilt accused accordingly bound reject crown submission inevitable guilty verdict sufficient appeal dismissed b defence submissionsmr strickland central submission trial judge failure direct jury couldnotuse propensity reasoning find mr mortada guilty count 1 meant appellant fair trial according law written submission 111 mr strickland stated prohibited line reasoning example satisfied mr mortada sold heroin past sent proceeds heroin sale overseas therefore must guilty possessing 496 gram heroin room 1417 developing submission mr strickland contention juror never informed whether could use evidence actual supply prohibited drug referred oral submission uncharged offence evidenced post note western union money transfer order prove deemed supply count count 1 oral submission mr strickland stated evidence uncharged offence admitted absence appropriate direction could used jury two purpose namely circumstantial evidence relevant proving actual possession 496 75 gram found suitcase room 1417 sheraton park hotel ii evidence basis jury may engage propensity reasoning find appellant guilty count 1 submitted behalf appellant respect possibility jury using evidence ii without appropriate trial direction existed real risk jury would impermissibly use evidence reason guilt honour failure direct jury use could make evidence actual supply left open jury engage impermissible propensity reasoning appellant written submission 108 oral submission mr strickland stated trial judge acknowledge evidence admissible one purpose another mr strickland submitted failure give direction even though asked meant trial according law direction given avoid miscarriage justice failure give direction meant loss real chance acquittal reasoning adopted case ofbrs v queen addressing relevant legal principle mr strickland submitted admitting evidence case multiple count case trial judge required exercise care precision identify precisely issue evidence relevant djv v r 2008 nswcca 272 2008 200 crim r 206at 28 36 37 ii failure identify issue cause problem coming direct jury use evidence jdk v r 2009 nswcca 76 2009 194 crim r 333at 31 37 iii evidence admitted one purpose admissible another purpose cannot used another purpose br v queen iv danger real risk jury may misuse evidence engaging inadmissible propensity reasoning judge give warning even trial counsel fails request warning br v queen giovannone 2002 nswcca 323 2002 140 crim r 1 emphasis given mr strickland submission particular observation made member court inbrs v queen included observation mchugh j following effect fundamental principle criminal law country ordinarily guilt accused person inferredfrom character tendency accused 304 ii evidence revealing criminal reprehensible propensity admitted trial judge must give jury careful direction concerning use make evidence 305 iii evidence admitted reason reliance propensity judge must direct jury use evidence relevant purpose purpose 305 iv case judge may need specific may need direct juror cannot use evidence identified purpose evidence admitted crown wish rely accused propensity element chain proof especially necessary judge give juror clear direction manner may use propensity evidence 305 oral submission mr strickland submitted high point case appeal extremely significant evidence led case mortada case show extensive criminal activity charged particularly refer exhibit 26 exhibit 26 convenient list western union money transfer really submit high point direction say given given first notice go last page see total amount western union money transfer close 1 million 945 000 note subject count 2 19 000 money subject count 3 22 000 count 2 found mortada person count 3 found safe sheraton park unit short money said crown transferred pursuant drug sale 25 time greater quantity count 2 3 secondly honour note range date money transfer 27 february 2009 16 june 2009 extensive mr strickland subsequently stated honour submission make though vast majority uncharged act got nothing count 1 2 3 saying relevant count significant body uncharged act used crown case relevance ofbrs v queen little later mr strickland submitted would wrong likewise jury may reasoned kind person sell deal drug sell proceeds sorry transfer proceeds overseas tune one million dollar therefore kind person might therefore control half kilogram heroin safe page 29 31 transcript issue whether appellant denied real chance acquittal hence fair trial discussed mr strickland member bench constituting court mr strickland contested proposition appropriate approach case one focussed circumstantial evidence tended establish connection accordingly appellant allegedpossessionof heroin subject count 1 one might conclude failure give direction moment respect mr strickland argued honour adopt line would respect adopt line reasoning submission inconsistent authority also inconsistent notion two fold notion crown understand accepts high point defence case said earlier real connection el dirani heroin real connection fanciful suggest owner submission strong evidence connection n submission theproper question real possibility jury misused uncharged act evidence emphasis added whilst respect mr strickland correct identifying question court must ultimately consider determine necessarily one also requires court regard whole evidence directly indirectly relevant issue whether crown proved beyond reasonable doubt 496 75 gram heroin appellant possession question considered ultimately whether real chance jury may convicted accused chain forbidden reasoning mchugh j made plain inbrsat 306 trial judge authority dispense direction law requires give criminal trial failure give direction may resulted conviction accused person trial conducted according law circumstance conviction constitutes miscarriage justice however honour also observed 308 whilst trial judge must give clear direction jury use make evidence follow failure give direction always constitutes miscarriage justice failure may made difference outcome trial appellant submission largely based reason mchugh j inbrs noted penultimate sentence reason furthermore although appellant chance acquittal may small proper direction given impossible conclude must inevitably convicted therefore necessary two reason examine defence case detail first proviso applied necessary persuaded beyond reasonable doubt evidence properly admitted proved mr mortada guilt second closely related first examination evidence necessary order determine whether substantial miscarriage justice assessment fall undertaken light whole evidence trial subject natural limitation inherent appeal cesanat 128 quotingdearman v dearman 1908 hca 84 1908 7 clr 549at 561 natural limitation heightened importance trial present crown case circumstantial mr mortada gave evidence cross examined extensively called series witness including rabieh hanan many case accused give evidence propounds positive case possible appellate court conclude guilty verdict inevitable cfcesanat 130 accordingly follows essential distinguish evidence testimonial evidence mr mortada witness open jury accept might give rise reasonable doubt incontrovertible documentary telephonic electronic evidence respect court good position jury c defence case detailit necessary analyse defence case trial insofar related first count detail said inweissat 41 appellate court must make independent assessment evidence determine whether making due allowance natural limitation exist case appellate court proceeding wholly substantially record accused proved beyond reasonable doubt guilty offence jury returned verdict guilty defence sought establish reasonable doubt heroin mr mortada possession said mr mortada flight booked return lebanon day arrested personal belonging unit punchbowl intended return going airport airline ticket found hotel room item mr el dirani found room including viagra steroid body building magazine high quality forged driver licence evidence said found suitcase obtained legal aid solicitor including one mr mortada name photograph mr mortada said demonstrated mr el dirani capacity impersonate heroin found wrapped towel mr mortada claimed hilton hotel mr el dirani staying put forcefully lengthily trial series error investigating police left room reasonable doubt example towel seized room fingerprinted cctv footage neither hotel viewed erased mr mortada denied knowledge money drug hotel room said stayed house friend hanan rabieh punchbowl friend gave evidence mr mortada stayed june 2009 indeed one maintained unequivocally mr mortada stayed every night including week 10 17 june 2008 always came back slept home used hear coming four kid mr mortada maintained mr el dirani impersonated booking room mr mortada name without knowledge order protect evidence q see saying mr el dirani went sheraton park impersonated without knowledge saying interpreter yes course without knowledge q first time hear mention sheraton hotel course matter june 2009 whenever interpreter got gaol fact name mobile phone number email address credit card used explained mr mortada mr el dirani done excellent job impersonating confronted fact visa card caused message sent sapphire mobile phone 11 june asked q kind set question mind receiving interpreter yes course made wonder ask abbas told abbas received message amont money saw message ask said used card mr mortada explained gave sheraton address fingerprinted good filling form wrote said police told write asked write address punchbowl staying said said good filling form balance item found sheraton room defence case somebody put insurance make accused look guilty real perpetrator uncovered defence case grapple detail item unequivocally connected mr mortada came particular bank account statement marriage divorce certificate western union transfer receipt fingerprint post note identity information including nine post note found mr mortada 2008 fingerprint come found room deal various explanation given mr mortada eleven implausibility mr mortada caseaspects mr mortada positive case occupied knew nothing room sheraton park implausible first mr el dirani extremely competent forger used appellant driver licence high quality forgery credit card imitated signature hotel check document handwriting expert said knew two people skill second mr mortada told police write sheraton fingerprint form something denied scenario hypothesised defence presumably mr el dirani told appellant staying order incriminate appellant third nine post note found mr mortada mr singh october 2008 mr mortada handwriting containing fingerprint sheraton room june 2009 mr mortada soiled original piece paper 2008 written information given note mr el dirani brother accordance mr el dirani request fourth despite nine post note new name written time mr singh saw mr el dirani managed avoid placing fingerprint whilst mr mortada fingerprint preserved pause note find proposition acceptance ofallof necessary order hypothesise scenario consistent mr mortada case knowing nothing hotel room highly implausible however court lack benefit enjoyed jury seeing mr mortada give evidence even though scenario propounded defence may lack persuasion large task court satisfied guilty verdict wasinevitable especially regard limitation record necessary conscious hayne crennan kiefel jj said incesanat 130 accused proffered explanation put transcript explanation may lack persuasion whether evidence whole including accused said explanation sufficient establish guilt beyond reasonable doubt question jury decide regard word recorded transcript proceeding improbability reasonable doubt sought established defence doubtful conclusion inevitability would open court hurdle inevitability unsurprisingly extremely high burden discharge however improbability aremuchgreater indicated fifth seems improbable extreme legal aid duty solicitor would gone sheraton without expressly asked mr mortada solicitor never met mr mortada solicitor interviewed course criminal investigation first contacted crown halfway course trial may presumed nature defence case become apparent solicitor understandably limited recall event june 2009 suggestion could suggestion evidence tainted plain cross examination q indeed attended court last week thevoir dire real idea evidence could give would assistance anybody well still know evidence assistance case still know proven beyond doubt solicitor appeared appellant immediately arrest collected suitcase room 1417 delivered rabieh hanan defence case must solicitor learned hotel police say seeing charge sheet appellant case staying inanyhotel staying friend house punchbowl personal belonging retrieve hotel mr mortada said chief q ever tell solicitor go sheraton interpreter initially difficult conversation english besides say go know nothing q ask go sheraton interpreter fact conversation u upset cry unable talk struggle reconcile fact solicitor went sheraton park retrieved suitcase delivered mr mortada friend destroyed content save forged driver licence deployed defence explanation solicitor receiving instruction mr mortada solicitor said cross examination cannot imagine going hotel pick someone item without authority referring towrittenauthority evidence inherently plausible explanation given closing address defence example duty solicitor trying helpful solicitor hoping pick client readily accept solicitor may helpful try assist client explain came belief instruction led go sheraton park time mr mortada believed nothing indeed personal belonging already house friend rabieh hanan solicitor go hotel reclaim personal belonging brand new client without instruction think possibility misunderstanding minimal especially solicitor implausibly recalled written authority client show hotel staff explains belonging given however necessary conscious limitation appellate record written authority solicitor recalled received tendered moreoverthe crowndid rely strongly solicitor evidence trial final address prosecutor said b ut crown put forward strongly include solicitor one crown star point shortcoming reticence suggests aspect evidence evident written record diminished probative value evidence accordingly consider would proper court regard solicitor testimony clinching evidence association mr mortada sheraton park room sixthly driver licence regarded crown first four particularly strong point crown case common ground licence good forgery deployed quite different way defence said suggested mr el dirani well placed impersonate accused crown said reflected something much sinister one forged gold driver licence fee 153 uncontroverted evidence fee 2009 151 increased 153 1 july 2010 crown said demonstrated forgery manufactured sometime 13 month mr mortada arrest release bail could suitcase june 2009 response mr kintominas said really farfetched consider whichever crook operating crooked machine making fake licence made mistake made instead 151 made 153 seventh improbability lithium carbonate medication said found hotel room medication found mr mortada october 2008 searched mr singh appellant gave evidence end 2008 prescribed six month supply lithium stopped taking one month whether explanation mr el dirani possession medication however medication listed property seizure exhibit form exhibit 5 introduces element doubt eighth improbability turn timing mr mortada personal paper found hotel room including bank statement transaction 29 may 2009 name former wife well translation marriage divorce certificate recalled mr mortada explanation gave paper mr el dirani kept pocket keyboard bag gave mr el dirani weekend left performing function could kept safe usually go function perform keep bag outside mean anyone access gave evidence q ask abbas give back interpreter yes course q get back interpreter happened last two day saturday sunday ask monday tuesday give back occur q chase interpreter chase arrested wednesday mr mortada flight scheduled depart sydney 2pm wednesday 17 june uncontradicted testimonial evidence detained police late morning noted mobile phone record demonstrate police intervened later 10 57am mr mortada case personal document important much asked mr el dirani keep yet within three hour international flight scheduled departure got back within three hour according get cbd punchbowl pick personal belonging also needed visit st george bank deposit large amount cash get airport clear security custom said could time available event flexible business class ticket ninth improbability mr mortada case turn upon mobile phone station received call one mobile phone possession 18 june 2009 nokia 6300 vodafone sim card contract name mr lewis trev mr mortada said mr el dirani bought crown called evidence analyst vodafone carrier tower tended transmit signal handset depending proximity although factor play notably available capacity nearby station although possible likely tower king cross could transmit handset cbd many tower closer handset cbd excluded possibility tower burwood crown tendered vodafone record tower used call text message made handset example three call made 12 30am 1am 13 june 2009 picked vodafone mobile phone tower described elizabeth park market morning arrest two phone call made mr el dirani 10 18 one picked station one east sydney two call mr el dirani 10 37 picked george park market crown said consistent mr mortada making call hotel room sheraton park early hour 13 june immediately meeting mr el dirani 18 june crown said explanation different vodafone station picking mr mortada call morning 18 june 2009 simply walking sheraton hilton making call went mr mortada said call made approaching hilton hotel denied coming sheraton park may acknowledged inference particular vodafone station cbd picked mr mortada handset far unequivocal however vodafone record undermine evidence mr mortada witness hanan especially rabieh swore stayed night punchbowl home vodafone record repeatedly located mr mortada vicinity sheraton early hour morning made three call midnight 1 00am 13 june two call 4 00 4 30 14 june followed one 9 21am later morning 2 26am 8 26am 15 june picked elizabeth park market east sydney mobile phone tower tenth improbability arises fact mr mortada wholly unaware sheraton booking received message saying 1 795 processed card sheraton park accepted asked mr el dirani told mr el dirani used card difficult reconcile mr mortada ignorance sheraton park text message phone recorded message read mr mortada man constantly sent received text message eleventh improbability emerges close analysis western union transfer form post note transfer money record fingerprint contain analysis way involves propensity reasoning point answer two simple question mr mortada occupying room 1417 document relating transfer money closely associated mr mortada come room fingerprint come document room sixty seven graph identified western union transfer form receipt attached located sheraton park hotel room search warrant executed labelled fingerprint expert f29 f95 graph contained one fingerprint example f29 identified right index finger right thumb print mr mortada sometimes one graph found document example graph identified f29 f30 f31 single transfer form transfer 7000 fingerprint found 33 western union transfer form 33 30 contained mr mortada fingerprint none contained mr el dirani three print f58 f85 f87 fingerprint form identified mr mortada fingerprint mr mortada case asked give western union transfer form mr el dirani brother ahmad unable say occurred transfer dated fairly evenly throughout mr mortada stay australia counting number separate transfer day 21 may622 may623 may425 may827 may528 may529 may61 june92 june53 june54 june55 june36 june37 june69 june610 june611 june912 june713 june715 june716 june1it follows either mr mortada gave whole bundle transfer receipt mr el dirani shortly arrest 17 june else mr mortada gave bundle earlier mr el dirani obtained recent document later stage suggests may assistance identify receipt contained mr mortada fingerprint material reproduced appeal book permit definitive conclusion date 30 western union transfer mr mortada fingerprint amongst 119 transfer receipt brought existence may june 2009 identified fingerprinting expert described reference amount number handwritten back transfer police search warrant executed many instance amount sent punchbowl post office different people different occasion appeal book reproduce back transfer number written police recorded even limited selection evidence available trial enables precision following two mode reasoning follows first transfer unique amount money amountdatetimetransferee id transferor location 4989 5923 may14 54mouna kasif lebanese passport 16092013 ziade hamdar lebanon 695027 may15 43hussein delbani licence nsw 18379012 ala salman unknown 215029 may15 01maryan aldirani licence nsw 1469034 ali aldirani lebanon 76001 june12 17naser mounir licence nsw 80367hr adham boukarom unknown mr mortada fingerprint transfer secondly precisely four transfer 7000 western union receipt tested datetimetransferee id transferor location 21 may14 23george nasif lebanese passport 11052010 mouhmed baker elhoussiny lebanon 22 may15 18issam moura licence nsw 1970241 ali raad lebanon 25 may14 50jihan maezir lebanese passport rl803917 samir kobeissy lebanon 5 june16 00imad asmar passport aland 73041 honan yamoul unknown happens four 7 000 transfer receipt tested fingerprint four contained mr mortada fingerprint manner based limited material appellate record identified eight western union transfer receipt dated 21 22 23 25 27 29 may 1 5 june found sheraton park safe mr mortada fingerprint next aspect improbability arises analysis post note many contained mr mortada fingerprint single fingerprint mr el dirani example one post note mr mortada possession 2008 commenced raide asaad gave date birth driver licence number address telephone number concluded dina hamada another commenced karie mandin gave date birth driver licence address telephone number concluded imad chaaban document found safe june 2009 former altered latter imad chaaban crossed replaced mona eldoker former bore mr mortada left thumb print latter bore left ring left middle finger print neither mr el dirani print course fingerprint left every time document handled inherently improbable many fingerprint retained man merely asked hand document mr el dirani none man defence case held document case post note nine month indeed wrote mr mortada believed merely took transfer receipt mr ahmad el dirani handed mr el dirani said conceivable mr el dirani might aware incriminating document mr mortada fingerprint careful leave also useful consider substance western union transfer form receipt opposed fingerprint one form found sheraton park room transfer made previous friday afternoon 12 june 2009 fund seemingly mr mortada former wife using name one people mr mortada staying amount 9440 purportedly sent hanan moussa provided driver licence sent fund manal el dirani almost uniquely transfer made roselands rather punchbowl post office almost uniquely driver licence number matched sender according agency record m hanan moussa one friend mr mortada staying 2009 living bail trial knew manal family friend called defence cross examined transfer denied sending money precisely money sent whether sent m moussa someone impersonating matter matter sender identified one friend staying recipient identified former wife mother child dated 12 june 2009 powerfully connects mr mortada document brought existence friday afternoon arrest following wednesday found hotel room evidence must considered whole truth case crown circumstantial case overwhelming difficulty hypothesising fact consistent innocence truth greater set foregoing matter focus critical issue fact crown proved beyond reasonable doubt heroin possession mr mortada excluded possibility possession mr el dirani crown overwhelming circumstantial case mchugh j observed inshepherd v queen 1990 hca 56 1991 170 clr 573at 593 particular case inference guilt beyond reasonable doubt may able drawn unless fact relied found inference established beyond reasonable doubt likely case incriminating fact relied establish inference number fact relied found inference guilt le likely fact proved beyond reasonable doubt establish guilt beyond reasonable doubt consequently even guilt beyond reasonable doubt cannot inferred unless certain fact proved may still open infer guilt beyond reasonable doubt even though fact proved standard notwithstanding failure give propensity direction mr mortada conviction inevitable given evidence properly admitted prove offence beyond reasonable doubt come time thecombinationof implausibility improbability precludes reasonable doubt guilt cumulative elimination possibility geometric progression invoked lord simon glaisdale inreg v kilbourne 1973 ac 729at 758 mchugh j referred inshepherdat 592 593 point made dawson j toohey gaudron jj agreed referred 580 probative force mass evidence cumulative indeed different lord cairn long ago said inbelhaven stenton peerage 1875 1 ac 278at 279 mr lord dealing circumstantial evidence consider weight given united force circumstance put together may ray light feeble little elucidate dark corner hand may number ray insufficient converging brought bear upon point united producing body illumination clear away darkness endeavouring dispel principle apply circumstantial evidence relied upon criminal trial authority reviewed giles ja howie buddin jj agreed inburrell v r 2009 nswcca 193at 55 65 joint judgment mcclellan cj cl fullerton garling jj ingilham v r 2012 nswcca 131at 466 appeal guilt rational inference drawn matter referred reviewed totality taken saying thatallof implausibility improbability referred necessary order compel inference guilt contrary case even allowing limitation appellate record superabundance evidence sufficient exclude reasonable doubt innocence circumstantial case accurately described overwhelming e n95 found hotel room used mr mortada may 2009there matter distinct foregoing presence nokia n95 phone safe room 1417 electronic communication recorded tendered trial mr mortada mr el dirani mobile phone actual possession people natural question whether handset found safe connected mr mortada mr mortada accepted nokia n95 possession least said given mr el dirani africa march 2009 mr mortada bound accept picture text message contained examined found safe heroin text message personal nature mr mortada girlfriend 2008 early 2009 dispute used mobile phone number ended 4456 n95 recorded message received number including wanna look dream 22 february 2009 love manal 11 october 2008 talk switch phone busy manal talk girlfriend 12 october 2008 manal reference appellant former wife mr mortada response claim gave n95 mr el dirani march 2009 never saw subsequently counsel opened case follows however accused evidence gave phone mr el dirani directing jury attention use phone period client australia defence say issue phone australia mr mortada evidence matched counsel opening said q w hen last see phone interpreter last time saw africa q african trip interpreter march 2009 q say last saw sometime march africa 2009 circumstance last see phone interpreter telephone took africa abbas el dirani another guy also called hussein el dirani arrived telephone said want take telephone want break basis holiday got abbas asked telephone wanted use said telephone know gave wanted return said keep mean know happened however message sent handset suggest mr mortada used arrived sydney explain necessary descend detail evidence text message retained handset received rather sent phone however five outgoing text message memory two sent 20 may 2009 phone whose number ended 5527 first message wainak second w r u man recalled mr mortada mr el dirani arrived sydney 20 may 2009 day seven text message sent mr mortada sapphire phone phone number ended 5527 content first masked trial appeal book following six follows row number print appeared evidence also given order understand cross examination 236 wainak 237 wainak wloh 238 yes ba wainak 239 wainak loh 240 aba w r u 241 go number 4 get th bagge sic mr mortada accepted sapphire phone possession lebanon australia gave evidence message previously accepted readily 5527 number mr el dirani see number xxxxxx 5527 mr abbas el dirani number yes correct gave evidence q ask go couple entry 236 see mobile phone number ending 55527 interpreter yes q message sent abbas el dirani interpreter yes q accept number ending 55527 abbas el dirani number interpreter yes q message word arabic word wainak mean agree translation interpreter yes q next message also sent abbas two minute ask wainak wloh agree interpreter wainak wloh wloh q sorry pronunciation pretty bad arabic well mean interpreter bedouin language use shepherd use speak goat say wloh sheep go away know call wloh wloh come back q okay effectively asking mr abbas time message agree interpreter yes asking q next two message 239 240 asking abbas agree interpreter yes one wainak wloh one abbas q got separated arrived sydney airport interpreter separate arrived sydney entering australia custom custom stopped abbas continued way one highly plausible explanation two message sent n95 phone 20 may 2009 5527 number wainak w r u man clear two message sent mr el dirani sent number ending 5527 mr mortada sending text message using sapphire phone day evidence suggest anyone else could sending text message day nature mr el dirani plausible mr mortada trying locate mr el dirani separated arrival 20 may 2009 sent least eight text message mostly sapphire phone also two n95 phone coincidence timing phone number substantially identical language exclude non fanciful possibility inconsistent mr mortada explanation handed phone mr el dirani africa know happened thereafter however matter mr mortada confronted cross examination trial subject written oral submission appeal heard accordingly party letter dated 19 26 february 2014 directed evidence fact appeared mr mortada sent two message 20 may 2009 n95 handset invited make submission wished extension time granted request mr mortada submission received mr mortada counsel 5 march 2014 within time permitted effect court draw inference essentially two reason first common nature request common usage word used arabic speaking person prove person must sent message submission would force sent message w r u might even force message wainak although evidence whether term commonly used arabic speaker however evidence much powerful message merely effect mr mortada used sapphire handset transmit english acronym w r u arabic term wainak interchangeablywhen trying locate mr el dirani person used n95 likewise usedboththe acronym arabic term merely similarity language message sent day phone number ending 5527 mr mortada readily accepted mr el dirani phone second reason advanced mr mortada put trial given opportunity proffer explanation coincidence crown submitted rational inference could drawn circumstance could use fairly made material need express view whether submission applied fact appeal correct light fact reliance message sent 20 may 2009 would amount rejection aspect mr mortada sworn evidence fairness mr mortada put squarely relied upon see civil context kuhl v zurich financial service australia ltd 2011 hca 11 243 clr 361at 70 74 evidence however support crown circumstantial case conclusion rest evidence referred order explain approached party submission matter raised f conclusion guilty verdict inevitablethe crown case connecting mr mortada room 1417 may accurately described overwhelming essence room 1417 booked mr mortada name signature hotel registration form credit card used pre authorisation phone contained text message referring received repeatedly vicinity making phone call night room 1417 found contain document belonging mr mortada post note fingerprint western union transfer receipt fingerprint connected medicine prescribed mr mortada arrested gave sheraton park address duty solicitor went room 1417 collected suitcase gave friend destroyed save forged driver licence recorded fee inconsistent existence june 2009 mr mortada sought elaborately deny knowledge room sheraton park claimed set mr el dirani associate extended series improbability entailed explanation mean open jury accept mr mortada unaware sheraton park room alternative evidence mr mortada occupied room involved joint criminal enterprise mr el dirani followed possession heroin substantial miscarriage justice time time appellant crown orally writing submitted failure give direction relation propensity reasoning meant mr mortada lost real chance acquittal language may convenient statutory test care must taken departing statutory language seeweissat 40 cesanat 123 andversi v r 2013 nswcca 206at 140 adam j basten ja latham j agreeing moreover contrary crown submission fact incontrovertible evidence make guilty verdict inevitable sufficient although highly relevant remaining question posed statute substantial miscarriage justice actually occur noted inwildeat 373 andweissat 45 rigid formula single universally applicable criterion specifying circumstance appellate court satisfied guilty verdict inevitable evidence notwithstanding error course trial even satisfied substantial miscarriage justice incesanat 81 french cj said may case nevertheless process failure significance whatever apparent weight evidence accused person cannot said substantial miscarriage justice case regard course taken trial clear error serious departure essential requirement law use language approved gibbs j inquartermaineat 601 radical fundamental use language brennan dawson toohey jj inwildeat 373 process failure sense french cj referred incesan 4 involving trial flawed fundamental respect reason judge asleep repeatedly trial three consideration make clear first much evidence linking mr mortada uncharged criminality tendered without objection objection made relatively late course crown case evidence mr singh sought tendered time recorded honour judgment post note safe already jury exhibit 19 western union transfer form receipt information evidence served case opened effect handwriting fingerprint post note room mr mortada point decided propensity direction would given secondly neither experienced counsel saw need end trial propensity direction earlier dealt given form jury direction discussed length thirdly force crown submission consistent essential aspect defence case jury invited conclude mr el dirani deeply involved sale illegal drug example closing address mr kintominas said look mr el dirani phone message defence say clear involved selling buying drug although satisfied mr kintominas deliberately refrained reminding trial judge propensity direction promised day 13 trial fact inviting jury hold crown proved case beyond reasonable doubt inviting propensity reasoning directed mr el dirani based document post note western union transfer receipt appellant said given mr el dirani confirms substantial miscarriage justice failure give propensity direction cfbrsat 307 conclusionfor reason conclude guilty verdict inevitable satisfied failure give direction indicated judge subsequently raised appellant crown give rise substantial miscarriage justice actually occurring accordingly court order 1 extension time appeal granted 2 leave rule 4 granted 3 appeal dismissed two final matter first unnecessary explore consequence inconsistency unchallenged guilty verdict relation third count money found safe hotel room would flowed acceptance appellant argument submission addressed question however would seem least desirable order avoid prospect inconsistent verdict appeal extended conviction third count even though mr mortada already served entire sentence second large thing crown dispute non trivial error occurred trial serious criminal offence lasting six week rely proviso thereby require court review entirety evidence view concluding guilty verdict inevitable miscarriage justice occurred important person convicted trial well efficient operation court avoidance needle retrial limited circumstance proviso operates crown provide detailed substantial assistance explaining guilty verdict inevitable conclusion safely reached notwithstanding natural limitation appellate review court grateful considerable assistance received particular fact trial greater level assistance detail evidence crown circumstantial case rested would welcomed
Wicks v Marsh; ex parte Wicks [1993] QCA 139 (21 April 1993).txt	wick v marsh ex parte wick 1993 qca 139 21 april 1993 last updated 1 october 2015 1993 qca 139in court appealsupreme court queenslandappeal 266 1992brisbane wick v marsh debra ann wick applicant v daniel joseph patrick maximilian marshex parte debra ann wickspincus j davy j shepherdson j judgment delivered 21 04 1993reasons judgment courtorder nisi made absolute cost matter remitted magistrate court proceed according law catchword criminal law unlawful possession applicant charged possession good may reasonably suspected stolen complainant police officer knew good stolen whether knowledge excludes suspicion whether otherwise improper charge unlawful possession word phrase may reasonably suspected whether includes belief knowledgecounsel j costanzo applicantp nase respondentsolicitors director prosecution applicantlegal aid office respondenthearing date 18 march 1993in court appealsupreme court queenslandappeal 266 1992brisbanebefore mr justice pincusmr justice daviesmr justice shepherdson wick v marsh debra ann wick applicant v daniel joseph patrick maximilian marshex parte debra ann wicksreasons judgment courtjudgment delivered 21 04 1993this appeal way order review decision magistrate 8 september 1992 dismissing charge abovenamed daniel joseph patrick maximilian marsh 65 thecrimes confiscation profit act1989 possession one pensov facsimile machine reasonably suspected tainted property section 65 following term 1 person receives posse conceals disposes brings queensland money property may reasonably suspected tainted property commits offence act 2 person charged offence section defence charge person satisfies court reasonable ground suspecting property referred charge derived realized directly indirectly form unlawful activity term tainted property relevantly defined mean relation serious offence property derived realized directly indirectly person result commission offence serious offence defined relevantly mean indictable offence magistrate dismissed charge concluded complainant police officer knew property subject charge stolen property implication tainted property charged respondent charge effect knowledge excluded application 65 fact relevant matter follows police officer found facsimile machine respondent possession matter probably suspected stolen later received information facsimile machine brand carrying serial number stolen relevant police officer complainant constable wick detective senior constable richards said answer question cross examination receiving information brand serial number machine knew stolen matter meant knew received information believed stolen mr rance said facsimile machine brand serial number stolen premise company associated question construction phrase may reasonably suspected tainted property 65 1 include case reasonable suspicion property tainted property particular include case property probably even beyond reasonable doubt tainted property section 64 act state serious offence stated 65 bearing question provides relevantly 2 person engages money laundering guilty crime 3 person shall taken engage money laundering b person posse property tainted property person know ought reasonably know property derived realized directly indirectly form unlawful activity magistrate decision correct show authority support result would evidence magistrate proof beyond reasonable doubt property tainted property respondent would guilty 65 also would guilty serious charge 64 unless could also proved knew ought reasonably known property derived directly indirectly unlawful activity course would guilty receiving thecriminal codeunless could proved knew property stolen criminal code 433 would curious construction 65 stronger reasonable ground suspecting property tainted property le likely person charged possession would guilty offence uninstructed authority would conclude phrase may reasonably suspected tainted property 65 1 stated minimum requirement read stating also maximum ambit section required matter plain english moreover indicated would lead illogical result stronger ground suspecting property tainted le likely would person possession guilty offence necessary however consider whether authority requiring contrary conclusion useful starting point isr v grace 1930 nswstrp 15 1930 30 r n w 158 provision considered case similar form 65 halse rogers j delivering judgment court criminal appeal said 163 opinion parliament intend nice distinction suspicion belief drawn way limit offence case suspicion think word intended indicate minimum maximum regard proof man called upon answer unless least reasonable suspicion man entitled avoid answering go free charge stronger feeling mind suspicion case accused hearing admitted obtained good subject charge stolen property moreover knew case therefore directly point passage decision case accord view earlier expressed hand case upon analogous provision distinction made suspicion one hand said would support conviction provision knowledge first case referred belief said would home v thorpe 1925 sastrp 37 1925 r 286 henderson v surfield 1927 sastrp 28 1927 r 192 lenthall v c newman 1932 sastrp 21 1932 r 126 hewitt v sullivan 1947 sastrp 39 1947 r 384 fisher v mcgee 1947 viclawrp 46 1947 v l r 324 brien v reitze 1972 w r 152 inlenthallknowledge would exclude suspicion defined context ability testify ingredient essential charge specific offence without recourse information belief definition adopted later case referred basis distinction thus drawn appears mere belief classified form suspicion extent greater includes lesser knowledge state mind quite different character statutory provision considered case appears construed requiring someone suspicion property stolen comparevagrants gaming offence act1931 25 possession anything whatsoever suspected stolen may something said view case abuse english language say one suspect property stolen one example saw stolen one possession unnecessary u consider whether view correct nothing 65 requires construction would add anything section considered ino brienwhich required construction section materially indistinguishable 65 authority considered full court supreme court south australia inraynal v samuel 1974 9 r 264 272 273 court expressed sympathy trial judge dissatisfaction case distinction concept knowledge one hand suspicion including belief said ratio decidendi oflenthalldid extend proposition knowledge excludes operation relevant provision rather court inlenthalldecided belief exclude section full court inraynalexpressly refrained ruling correctness otherwise dictum inlenthallthat knowledge ousts provision course gradation belief knowledge extending slight inclination opinion complete assurance practical sense tribunal determines matter never complete assurance never strong belief based told would reject applicable construction 65 dictum whilst accepting reasonable belief even strong one would satisfy test reasonably suspected knowledge would must nevertheless consider possibility enacting 65 form 1989 legislature intended word section bear meaning attributed similar provision group case referred beginning withhomesand finishing witho brien true generally legislature enacts provision similar provision judicially interpreted another jurisdiction legislature assumed aware judicial interpretation intended followed local board health perth v maley 1904 hca 28 1904 1 c l r 702at 715 national phonograph co australia ltd v menck 1908 7 c l r 481at 529 however many occasion court cautioned enthusiastic application principle example inr v reynhouldt 1962 hca 23 1962 107 c l r 381at 388 dixon c j said view modern legislation repetition provision dealt court mean judicial interpretation legislatively approved think quite artificial repeat said mechanic law making longer provide foundation probability doctrine supposed possessed see alsogalloway v galloway 1956 c 299at 320 bacon v salamane 1965 hca 22 1965 112 c l r 85at 90 91 farrell v alexander 1976 ukhl 5 1977 c 59at 74 inflaherty v girgis 1987 hca 17 1987 162 c l r 574at 594 mason c j wilson dawson jj stated reason given dixon c j inreynhouldt suggested rule nowadays little use guide permitted prevail interpretation otherwise appearing correct observation particularly apposite present case interstate interpretation except case ofgraceando brien different phrase consist obiter dictum reveal wholly consistent approach comparegracewithlenthall hewittandfisher may according full court inraynal yet settled context believe enactment interpretation presumption provides sufficient basis adopting interpretation 65 consider illogical incorrect final argument raised respondent abuse process use summary procedure provided 65 deal ordinary case receiving case prosecution sufficient evidence support charge indictable offence receiving 433criminal code respondent referred u several authority addressed question whether indictable offence clearly made abuse process court use provision 65 merely deprive defendant right trial jury benefit ordinary presumption innocence homesat 291 lenthallat 130 132 hewittat 393 394 395 396 fisherat 330 331 r v kellert 1961 80 w n n w 307 mccorry v olive ex p olive 1963 qd r 130at 133 134 difficulty understanding work injustice charge accused person lesser offence attracting lesser penalty proven summary way simply serious charge could also made accused would tried judge jury quote mayo j inhewittat 393 394 understand institution lesser charge provided evidence nature justify conviction deemed unjust proof demanded nature kind tribunal case launched 93 equivalent 65 whether evidence establishes graver charge deemed legally fair one case rendered otherwise tactic motive proceeding section irrelevant evidence discloses circumstance justifying conviction point left open full court appeal case 395 396 however result find unnecessary express final opinion correctness otherwise argument argument coextensive respondent contention suspected 65 excludes known make offence receiving 433 already said prosecution must prove property question stolen property also defendant knew mere fact property said known stolen sense established beyond reasonable doubt tribunal sufficient satisfy 433 therefore would sufficient exclude operation 65 would also evidence defendant knowledge evidence presented case abuse process could involved proceeding 65 therefore conclude magistrate erred law dismissing charge 65 order nisi accordingly made absolute cost matter remitted magistrate court proceed according law
Ryan v Hartnett [1961] TASStRp 18; [1961] Tas SR 130 (29 August 1961).txt	130 tasmanian state report ry v hartnett lca 37 1960 1961 supreme court burbury c j august 2 29 1961 1961 justice appeal supre court scope notice appeal ground order evidence weight evidence suffi ciency justice procedure act 1919 10 geo v 55 s 146 149 152 notice appeal 152 justice procedure act 1919 unlike notice revi iw 148 sufficiently set fol tih ground appeal indicates appellant challenge whole decision merit order justice evidence weight evidence sufficient ground appeal point decision appeal quarter session england applied fletcher v castrisios 1959 ta r 3 distinguished quaere whether appeal lie specific error fact law whether must lbe subject specific ground appeal appeal 152 justice procedure act 1919 appellant brought appeal 8 152 justice procedure act 1919 dismissal justice procedure act 1919 146 3 together notice review applicant shall file serve affidavi showing 1 prima facie case error mistake part justice matter question fact alone law alone iboth fact law n justice jurisdiction make order issue warrant ill order warrant made issued 149 2 hearing ofa motion review court shall upon consideration evidence material adduced brought justice evidence think fit review order warrant far rel te ground set forth notice motion thereupon may following thing namely 1 dismiss motion n confirm vary amend rescind set aside quash order warrant reviewed iii remit case matter justice dealt either without direction law iv order case matter tried police magistrate v pro hibit justice conce rned person pro ceeding proceeding respect order warrant vi amend cause amended term defect error proceeding justice vii make suoh order cause proceeding taken court think necessary secure final deter mination case matte r upon merit including hear ta r ryan v hartnett burbury c j 131 police magistrate complaint assault made respondent ground stated notice appeal 1 order decision learned police magistrate evidence weight evidence 2 learned police magistrate dismissing complaint erred point law point fact convicted respondent f neasey appellant h j solomon respondent cur adv vult august 29 burbury c j counsel respondent took preliminary objection notice appeal comply 152 2 requires service person concerned upholding order notice appeal setting forth ground appeal heard argu ment upon preliminary objection adjourned hearing appeal enable consider point counsel respondent submitted comply section notice appeal must allege specific ing de novo determination original proceeding supreme court viii exercise addition powe r conferred section power court might exercise upon certiorari mandamus prohibition habeas corpus 4 cause matter heard de novo para graph vii sulhsection 2 section supreme court power justice original hearing cause matter order warrant court like effect enforceaible like manner made issued iby justice 152 10 appeal section supreme court n shall hear appeal way hearing rn may time allow ground appeal set forth notice ppeal amended term cost otherwise court may think fit v may exercise r elation appeal power might ibeen exercised justice vi may con firm reverse mitigate vary decision justice make order matter think fit 11 order supreme court made upon appeal section like effect enforceable like manner made iby justice 132 tasmanian state report 1961 error law fact upon appellant relies relied upon decision crawford j fletcher v castrisios 1 several south australian queensland case referred honour reason judgment case crawford j held ground notice review 146 justice procedure act 1919 expressed learned police magistrate wrong fact law holding respondent case answer insufficient honour held ground appeal expressed compliance 146 2 requires notice review set forth ground review sought course judgment honour referred followed decision queensland south australian supreme court holding insufficient state ground magistrate wrong fact law conviction evidence weight evidence counsel respondent submitted decision crawford j equally applicable notice appeal 152 section provides substantially term 146 notice appeal shall set forth ground appeal consideration mean conclusive validity contention tested comparing nature appeal 152 146 nature appeal given 146 clearly appears 146 3 149 2 3 plain appellant cannot succeed appeal 146 unless establishes specific error law fact part justice follows appellant must notice review state specific error law fact upon relies true court jurisdiction 149 2 vii hear determine original proceeding de novo jurisdiction may exercised way appropriate relief court first satisfied error fact law made justice appeal 146 therefore fall within third category described gavan duffy c j starke j joint judgment dignan case 2 process subjecting fact well law review whether order tribunal appeal brought right material 1 1959 ta h 3 2 1931 46 c l r 73 p 85 ta r ryan v hartnett burbury c j 133 section 152 term require specific error law fact assigned justice appeal allowed say little nature appeal honour set beginning 152 10 par 11 ill v vi sub 11 ordinarily appeal one judicial tribunal another judicial tribunal although expressed appeal way rehearing hearing original proceeding de novo rehearing case sense ofa hearing date appeal upon material lower tribunal together fresh evidence subject well established limitation may adduced kind appeal lie single judge court full court lxxiv r 1 provides appeal shall way rehearing nature appeal course provided english judicature act single judge court appeal significance phrase way rehearing court determines appeal accordance law state thing existing date appeal date original hearing may therefore take account matter occurred since date order appealed gibson j morrisby v plummer 3 held phrase way rehearing 152 10 11 interpreted requirement court shall hear appeal way rehearing provision restricts scope appeal rehearing may either hearing upon written transcript evidence taken lower tribunal may hearing com pletely de novo answer question type appeal must found otherwise phrase unres ted appeal given adminis trative authority court whether expressed appeal way rehearing court must hear whole matter judicially de novo independently altogether proceeding administrative authority matter heard first time judicially ex parte vi australian sporting club ltd dash 4 minister state navy v rae 5 commissioner taxation 3 1956 ta r 15 4 1947 47 r n w 283 5 1945 70 c l r 339 134 tasmanian state report 1961 v finn 6 see decision cooper construction pty ltd v brooker holding pty ltd 7 section 152 substantially present form first introduced justice procedure act 1919 justice procedure act 1934 8 act substituted entirely new part vii providing appeal justice section 146 151 grouped sub heading ex pressed division order review section 152 separate sub heading expressed division ia appeal right justice procedure act 1954 9 s 146 153 repealed new section substituted original heading division remain section 6 2 act interpretation act 1931 10 provides heading part division subdivision act divided shall deemed part act appeal given 152 therefore expressed legislature appeal right inception 1934 treated member court includ ing clark j giving appeal justice judge rof supreme court nature substantive procedural aspect appeal quarter session england practice procedure closely assi milated quarter session appeal including practice requiring respondent begin call evidence recognition right respondent adduce fresh evidence flanagan v knowles 11 held legislature enacted 152 must taken intended confer appeal way hearing de novo original proceeding accordance well established known practice governing appeal quarter session grant appeal way rehearing upon material submitted justice nature appeal quarter session cently referred fullagar j commissioner tax ation v finn 12 said appeal quarter session england general session victoria way rehearing unless anneal based defect form substance order appealed party began court begin proving case de novo call evidence order 6 1960 103 c l r 165 7 1961 ta r 100 8 25 geo v 66 9 66 1954 10 22 geo v 59 11 1957 ta r 30l 12 1960 103 c l r 165 p 168 ta r ryan v hartnett burbury c j 135 must auashed ha regarded matter practice procedure within control point within discretion appellate court reason practice adopted quarter session general session general application appeal com missioner board review court practice challenged rating case r v habitant new bury 13 lord kenyon inclined think first court king bench ought make pronouncement control practice court quarter session finally supported ashurst j buller j approved practice required law justice convenience reg v justice surrey 14 case appeal conviction offence practice approved two main reason given justifying require appellant begin would generally require prove negative evidence court appellate court someone adduces section 152 therefore give unrestricted right appeal merit probab1y exclude appeal upon specific ground error fact law unnecessary determine question purpose present appeal wish taken ex pressing final view argument may open appeal based specific error fact law appeal simpliciter upon merit whole case appellant proceed 146 indeed nractice tasmania doubt thought appeal brought unde j 152 upon ground court must go merit whole case afresh require respondent first support conviction evidence dealing specific ground appeal view probably correct see r v justice surrey 15 appellant desire exercise right appeal way original hearing isupreme court challenging whole decision upon merit must set forth ground appeal legislative provision governing appeal quarter session appear uniformly required notice appeal state general ground appeal summary jurisdiction act 1879 16 31 1 ii provided 13 1791 4 r 475 14 1892 2 q b 719 15 1892 2 q b 719 16 42 43 vict c 49 136 tasmanian state report 1961 magistrate court rule 1952 r 59 1 17 summary jurisdiction act 1879 first time troduced general right appeal quarter session conviction sentence imprisonment imposed without option fine upon person plead guilty archbold practice court quarter session 6th edn 1908 p 228 similar statutory provision notice anneal found earlier statute giving right appeaf quarter session specific class case sufficiency ground appeal must determined scope appeal given conclusion accepted scope appeal 152 co extensive anpeal quarter session would altogether narrow view attempt draw distinction requirement state general ground appeal requirement set forth ground appeal form notice appeal given archbold op cit appeal 102 p 544 case appeal conviction follows 102 form notice appeal order con viction summary jurisdiction act z berkshire wit said county give everyone notice c intend next general quarter session peace holden said county berk appeal certain conviction said c j p esquire one majesty justice peace said county therein thereby alleged etc stating offence general ground appeal guilty said offence etc stating ground appeal party may premise every hereby desired take notice dated day 19 c z note form easily adapted appeal order etc appeal con viction order special act learned author p 246 say ground appeal set 17 1 1952 2190 ta r j ryan v hartnett burbury c j 137 necessary stated particularity would required pleading therefore man convicted vagrant act indecently exposing person ap pealed conviction notice stated ground appeal guilty said offence court king bench held sufficient specifically denying fact necessary constitute offence resting case upon denial objecting upon ground defect form notice also must show upon face party giving person appeal given statute appeal given particular officer appellant notice must show fill office statute give appeal party aggrieved notice must show expressly impliedly appellant party aggrieved aopear much order thing appealed set notice case appeal conviction like sufficient must expressly stated p 262 learned author say case statute 42 43 vict c 49 31 2 appellant required state ground appeal notice allowed go give evidence ground appeal stated notice result english decision appellant quarter session relies upon specific error law must state notice appeal relies illingworth v bulmer east highway board 18 held notice appeal complaining order made without jurisdiction contrary law insufficient ground reg v inhabitant watford 19 lord denman said important fully understood party go issue strictly point named ground appeal le quarter session r v boultbee 20 learned judge held upon appeal quarter session game act 21 requiring appellant give notice cause matter appeal competent justice quarter session notice appeal stating 18 1883 52 l j q b 680 19 1846 9 q b 626 20 1836 4 ad e 498 21 1 2 gul 4 c 32 138 tasmanian state report 1961 objection going merit case quash con viction want form lord denman 22 said three objection stated going directly merit objection matter upon session adjudicate try merit clear appellant appeal merit whole case entitled new trial blackburn j said court queen bench arguendo reg v hall 23 doubt appeal justice quarter session nature new trial fresh evidence admissible hearing appeal reg v glynne 24 great common law judge said appeal quarter session rehearing fresh evidence may called like writ error p 2 described second trial court quarter session p 26 lush j described de ision cou rt judicial conclusion upon weight value testimony presented court upon point issue party reg v pilgrim 25 lush j said generally speaking appeal quarter session justice limited evidence petty session hear whole matter de novo issue justice put position justice court case particular statute giving appeal limit inquiry evidence quarter session precluded going fresh evidence reg v justice surrey 26 cave j divisional court said appeal high court evidence given court always court appeal brought appellant therefore called upon begin shew evidence 22 1836 4 ad e 498 25 1870 l r 6 q b 89 p 505 p 95 23 1866 l r 1 q b 632 26 1892 2 q b 719 pp p 637 722 723 24 1871 l r 7 q b 16 pp 20 21 ta r ryan v hartnett burbury c j 139 justify verdict given court gone wrong point law appeal quarter session evidence court quarter session right depend upon mere word judg ment thing appealed respondent must begin must prove matter complained court must decide upon evidence brought appeal nothing except evidence shew offence committed judgment court complained verdict court appeal brought may think tech nically offence committed evidence given cannot tell whether sentence ought given respondent give evidence shew fact case enable court give judgment asked give respondent shew adjudication court quarter session ought case ground appeal sentence excessive divisional court said enquiry matter court quarter session first heard evidence respondent must first support con viction upon merit nature appeal opinion notice appeal stating order evidence weight evidence sufficient state good ground appeal notifies respondent appellant challenge whole decision upon merit ground appeal decision wrong upon merit issue fact arising ingredient offence put issue ground must retried judge hearing appeal r v justice newcastle upon tyne 27 court queen bench held notice appeal quarter session conviction indecent exposure merely stated ground appellant guilty offence sufficient lord tenterden c j said three ingredient offence party convicted first must obscene exposure person secondly must place public resort thirdly must done intent insult female without proof 27 1831 1 b ad 933 140 tasmanian state report 1961 point conviction could supported allegation therefore notice appell ant guilty said offence mean thing disputed party im properly convicted merit matter form 28 unnecessary go purpose determining preliminary objection case appeal appeal appellant 152 seek attack order want form upon ground specific error law may necessary determine whether accordance english decision point taken appeal 152 subject specific ground appeal perhaps add decision privy council aladesuru v queen 29 ground conviction weight evidence sufficient ground upon appeal conviction criminal case application 152 appeal case tasmanian criminal code permissible statutory ground verdict unreasonable cannot supported evidence privy council held meant appeal ground verdict evidence weight evidence objection disallowed attorney appellant murdoch clarke neasey cosgrove attorney respondent finlay watchorn baker solomon p e n nota 152 compare s 1 9 appeal regulation act 19 vict 10 regulated appeal general session tasmania 1855 1919 section 146 152 replaced s 107 113 justice act 1959 1 january 1962 head ings division f c 28 1831 1 b ad 933 29 1956 c 49 pp 935 936
Gordley, James --- "The architecture of the common and civil law of torts: An historical survey" [2015] ELECD 905; in Bussani, Mauro; Sebok, J. Anthony (eds), "Comparative Tort Law" (Edward Elgar Publishing, 2015) 173.txt	gordley james architecture common civil law tort historical survey 2015 elecd 905 bussani mauro sebok j anthony ed comparative tort law edward elgar publishing 2015 173book title comparative tort laweditor bussani mauro sebok j anthonypublisher edward elgar publishingisbn hard cover 9781849801416section chapter 9section title architecture common civil law tort historical surveyauthor gordley jamesnumber page 28abstract description two key question law tort delict conduct defendant trigger liability grievance plaintiff may recover civil law common law today first question answered saying liable general defendant must fault either intentionally negligence strict liability liability without fault fit within structure difficult find place late 19th century french court created strict liability new forced interpretation article 1384 civil code provides person liable harm caused object custody garde previously court said article applied defendant fault german provided strict liability series statute outside code apply variety activity including operation railroad aircraft storage transport fuel electricity german court refused apply statute analogy activity common law united state plaintiff strictly liable conducting abnormally dangerous activity english court rejected principle second question concern grievance defendant recover answered saying defendant recover harm right interest answer phrased different way
Laudato v WorkCover (Fairplay Child Care) [1993] SAWCRP 11 (25 January 1993).txt	laudato v workcover fairplay child care 1993 sawcrp 11 25 january 1993 last updated 26 december 2020 1993 sawcrp 11review officer palmercatchwords arising course employment stress claim child care worker credibility worker conflicting medical opinion brief attempted return work unsuccessful indication lack incapacity work decision reject claim set aside laudato corporation fairplay child care centre 1993 6 wro determination 11 93see workcover v laudato 1993 sawcat 65 cawthornedp determination 11 93workcoverreviewlaudato corporation fairplay child care centre 06571376 01 01 determination review officer made 25th january 1993 hearing 25th march 13th may 20th august 21st 22nd october 27th november 1992 review officer palmerthis determination application lodged 2nd december 1991 guiseppina anna laudato worker contract service fairplay child care centre employer application seek review pursuant worker rehabilitation compensation act 1986 act decision made 8th november 1991 reject applicant claim compensation matter called hearing applicant appeared gave sworn evidence represented m ruth carter paul kirk robert co workcover represented m margaret kelly stratford co worker husband mr laudato gave sworn evidence dr le page behalf applicant drs turpin schembri gave sworn evidence behalf respondent mr h ratsch m j barlow worker female child care educator diploma child care education since obtaining diploma worked full time educating position 1988 obtained employment full time trained child care worker worker sworn evidence prior time suffered psychiatric psychological disturbance fact performed relieving duty number location looking child teaching reception year 1 level student four school casual relieving basis 1988 1990 approximately march 1991 obtained position full time trained child care worker employer sworn evidence soon commencement employer found increasingly difficult control child ensure appropriate assistance assistant prepare theme child example preparation play dough music dancing pasting painting etc worker sworn evidence another full time trained child care worker critical worker use positive reinforcement young child worker considered colleague interfering group director centre supportive stance worker sworn evidence assistant rude least one occasion could assist number occasion would cleaning generally looking child group whose age ranged six month two year mr laudato stated left look 30 child worker lunch tea break subsequently clarified would always two care worker looking group 15 time whilst worker would take lunch tea break worker evidence relation incident leading 17 may 1991 broke cried ceased employment consequence perceived stressor considered colleague director centre critical performance alleged director attempted ensure worker reporting injury child may received day parent play significance injury mainly cut abrasion instructed careful wording description injury placed injury book worker sworn evidence felt intimidated full time child care worker director felt embarrassed think coping well stated last straw 17th may 1991 holding cry baby supervising group approximately 15 child watching television another child placed metal spinning top ledge fell head cry baby nursing worker could cope thought may responsible child severely injured went outside remaining group child started cry whilst assistant calmed cry baby worker perceived criticism assistant regard fact let incident happen upon director finding perceived criticism assistant indicated worker fault could done anything worry worker sworn evidence nothing comfort fact left work went see general practitioner dr panozzo certified totally incapacitated one week week worker suffered sleep deprivation nightmare regard director staff centre certified unfit week worker considered wanted attempt return work upon return worked full day monday approximately three hour tuesday tuesday took lunch break simply return work worker sworn evidence occasion overheard director cook discussing position specifically director commenting one week work sufficient get trivial incident worker considered ridiculed director felt intimidated considered staff member may similar view fact may told absent seen dr panozzo referred dr le page psychiatrist treated since time condition admitted glenside hospital july 1991 two day consequence suicidal thought worker sworn evidence like unable stay financial constraint claim compensation accepted return allowed home trial leave worker sworn evidence stressor home support assistance extended family regard domestic chore child minding requirement full time working mother said family experiencing financial difficulty fact reasonably well worker sworn evidence reason attempted full time child care work put skill obtained good use financial consideration dr turpin evidence event worker place employment normal everyday event worker blown trivial incident proportion considered worker illness problem result internal stressor rather external factor however tried externalise effort face problem within family relationship dr turpin considered worker degree consciously deliberately exaggerating condition however consider worker suffering psychiatric disorder component psychotic schizotypal disorder would account regressive state degree depressive component dr turpin considered worker distorted incident described order blame work problem would face difficulty life considered acceptance work contributing factor would perpetuate support mechanism craved considered worker looking something latch blame rather specific incident precipitative condition dr schembri evidence worker fragile psyche begin worker psychotic tendency whilst breaking would difficulty functioning performing work would become difficult continue alleged worker work contributing onset illness dr schembri considered worker hysterical neurosis coping working full time domestic chore family relationship easy run away conflict blaming work condition dr schembri considered worker latching perceived work stressor condition properly described endogenous condition whilst could absolutely rule schizo affective disorder view symptom description condition sufficient appropriately diagnose schizo affective disorder element depression conceded worker may fearful feeling criticised feel worker de compensated consequence feeling dr schembri considered accepted worker may putting lot stress perform level expectation beyond accepted level preparation daily task increasing weekly occasion staying 1 00am morning properly prepare group however considered worker coping consequence condition sick mind latching work rather work making sick mind sicker dr schembri conceded state would quite sensitive perceived criticism comment however put position cope refused recognise inability cope condition could happened anytime anywhere given circumstance dr le page sworn evidence first saw satisfied condition anxiety depressive condition presented flat affect quite obviously withdrawn suffering mental confusion fearful sweating mood change image respect co worker particular director child care centre dr le page opinion culmination multiple stressor life led particular breakdown considered worker pre disposition towards condition actual timing occurred consequence perceived stressor subjected work without stressor may broken may occurred later time life subsequent beginning schizotypal disorder related stressor worker perceived work fashion significant injury work contributed aggravation disease worker previous disposition reaching decision take account evidence submission given hearing document file demeanour witness respect issue dispute satisfied following 1 worker person fragile psyche pre dispositon type disease 2 condition best described depressive illness predominantly neurotic disorder symptom psychotic symptom 3 condition arose consequence worker perception actual event incident employment worker found quite stressful source turmoil superimposed upon background stressor private life 4 circumstance satisfied preference dr le page diagnosis prognosis worker condition particular satisfied worker incapacitated pre injury employment would best served look work future position involving responsibility teaching child 5 satisfied worker attempted provide evidence truthful fashion difference evident evidence history provided doctor evidence lay witness satisfactory explained level medication time factor involved difficulty recollecting experience 6 satisfied consequence event surrounding claim compensation comment dr le page worker family worker perceives workcover corporation also one persecutor perception also serving perpetuate worker condition 7 satisfied mr ratsch evidence director child care centre consistent evidence witness statement provided worker colleague parent child attended child care centre satisfied present domineering person pressure perform standard created worker mind satisfied worker consequence condition distorted view regard event particularly regard alteration say requested injury report book mr ratsch clearly occur 8 satisfied dr le page able come diagnosis prognosis unbiased view despite concern conduct claim workcover corporation 9 satisfied basis evidence provided balance probability worker return work full time financial reason utilise skill obtained via diploma education satisfied worker return work june 1991 one day three hour attempt return work trial basis unsuccessful furthermore satisfied worker perception comment mr ratsch cook time resulted deterioration condition particularly way viewed relationship colleague employer accordingly application review must succeed reviewable decision workcover must set aside determination pursuant section 96 2 act set aside decision workcover made 8th november 1991 reject claim compensation substitute decision accept claim compensation dated 27th may 1991 determine weekly payment compensation commence 18th may 1991 appropriate rate continue accordance act determine interest calculated accordance section 47 act shall paid respect instalment weekly payment paid due determine applicant reimbursed workcover cost representation proceeding pursuant section 92a act limited regulation 5 worker rehabilitation compensation review appeal regulation 1987 prevailing time time appeal determination must lodged worker compensation appeal tribunal within one month receipt determination enquiry appeal may directed registrar tribunal 8th floor riverside centre north terrace adelaide phone 207 0999 form appeal available address j palmerreview officer
R v Patrick Pengelly [2020] NSWDC 112 (21 April 2020).txt	r v patrick pengelly 2020 nswdc 112 21 april 2020 last updated 21 april 2020district courtnew south walescase name r v patrick pengellymedium neutral citation 2020 nswdc 112hearing date 31 march 2020date order 21 april 2020decision date 21 april 2020jurisdiction criminalbefore lerve dcjdecision sentenced imprisonment see 78 81 catchword crime sentencing specially aggravated kidnapping whether gratuitous cruelty made bugmy factor need rehabilitationlegislation cited crime act 1900criminal procedure act 1986cases cited attorney general application pursuant tos 37of thecrimes sentencing procedure act 1999no 1 2002 2002 56 nswlrr v speechly 2012 nswcca 130melvaine v r 2019 nswcca 274mccullough v r 2009 194 crim r 439 2009 nswcca 94bugmy v queen 2013 hca 37r v youseff 2012 nswdc 252r v bamblett green 2019 nswdc 29r v brown leuthwaite 2020 nswdc 1nowak v r 2008 nswcca 89r v elyard 2006 nswcca 43category sentenceparties director public prosecution crown patrick pengellyrepresentation solicitor m morgan crown m winn offender file number 2018 345422publication restriction noremarks sentencethe offender appeared wagga wagga local court 30 october 2019 pleaded guilty following charge 8 november 2018 tolland state new south wale without consent detain dale tapper intention committing serious indictable offence namely larceny said patrick pengelly occasioned actual bodily harm detained said patrick pengelly company joshua leota contrary tos 86 3 thecrimes act 1900 plea guilty adhered sentence hearing wagga wagga district court 31 march 2020 accordingly offender entitled full 25 discount utilitarian value plea guilty maximum penalty prescribed offence contrary tos 86 3 thecrimes actis twenty five year imprisonment parliament specified standard non parole period respect offence offender also pleaded guilty charge drive disqualified attached certificate pursuant tos 166of thecriminal procedure act 1986 separate sentence need imposed matter noting exercising jurisdiction local court matter offender also asks passing sentence respect specially aggravated kidnapping charge take account form 1 document charge take drive conveyance contrary tos 154aof thecrimesact
Re Graham Wales and Commonwealth of Australia [1982] AATA 225 (28 October 1982).txt	graham wale commonwealth australia 1982 aata 225 28 october 1982 administrative appeal tribunalre graham walesand commonwealth australiano n81 98compensationcourtadministrative appeal tribunalgeneral administrative divisionthe honourable sir william prentice senior member catchwordscompensation injury back unsuccessful attempt return work anxiety state functional overlay development alcoholism korsakoff psychosis total incapacity work compensation commonwealth government employee act 1971hearingcanberra28 10 1982order set aside determination delegate commissioner employee compensation matter 2 april 1981 b remit matter commissioner direction applicant 9 april 1981 since continues totally incapacitated work result personal injury sustained 22 june 1978 entitled compensation accordingly c order respondent pay applicant cost application scale appropriate claim worker compensation commission new south wale ordered decision1 applicant employed storeman department defence 13 year 1978 apparently suffered injury neck lower back mating trailer tow motor work place handled missile warhead component explosive r n store pursuant series determination 30 august 1978 5 march 1980 received compensation incapacity attributable injury determination 2 april 1981 delegate commissioner employee compensation delegate determined applicant longer incapacitated work induced injury payment compensation ceased 9 april 1981 application made tribunal review decision agreed applicant continues totally incapacitated work within meaning act issue contested solely whether incapacity since 9 april 1981 contributed consists condition aggravated injury 1978 factor stress work since injury seems applicant twice tried return work november 1978 worked couple day may 1979 hour finding much 2 following witness gave evidence tribunal applicant mr wale dr dalton dr l blow dr bell psychiatrist dr puflett consultant physician material document included medical report dr hedberg 9 may 1979 1 november 1979 dr j segelov 29 march 1979 dr b j collins 7 august 1978 5 september 1978 19 december 1978 dr pittorino general practitioner 19 january 1979 dr n wing 5 july 1979 commonwealth medical officer june 1979 dr bell 27 august 1980 hearing following report tendered dr blow 11 march 1982 dr w g taylor 17 september 1981 dr perera 10 december 1980 18 august 1981 rozelle hospital dr k lennane 14 april 1982 dr g robbie 30 september 1981 dr puflett 11 september 1981 dr j furber 15 september 1981 dr n berry 22 august 1981 also tendered transcript enquiry mental health act mental health applicant conducted june 1982 rozelle psychiatric hospital numerous determination delegate review applicant record sick leave last year employment department defence 3 respondent contends state health applicant shown massive medical enquiry expressed opinion cannot regarded balance probability induced contributed injury work condition work operating upon existing disability submits incapacitation applicant clearly suffers due quite factor alcoholism operating upon hypertension anxiety state resulted development korsakoff syndrome psychosis doubt applicant contracted psychosis commonly manifest amnestic confabulatory syndrome characterized confusion retrograde anteograde amnesia confabulation apathy blakiston gould medical dictionary 4 applicant witness appear anything truthful indeed attempt made suggest mendacity part recollection many aspect personal history non existent plainly due effect alcoholism consequent development korsakoff psychosis wife presented frank person attack launched veracity either though queried aspect running 5 acre block luddenham understand respondent case sought establish element exaggeration entered description applicant drinking habit using dr puflett deduction biochemical test basis suggesting really severe drinking applicant begun left home september 1981 gained impression line enquiry opened appeared respondent legal adviser change ground taken development continuance applicant claim whereby le reliance placed upon orthopaedic injury exacerbation anxiety state upon psychiatric deterioration alcoholism urged secondarily work induced accept mr wale account married life progress applicant alcoholism basically truthful inherently probable 5 applicant treated examined large number doctor since 1978 prior sick leave record 1974 onwards show lost fair number day work flu gastric trouble earache unspecified illness significantly feel 1976 anxiety hypertension headache suffered arm injury work 1977 though recovered hypertension remains prominent certificated cause work loss several examining doctor view anxious person subject extent anxiety state prior 1978 injury surprising one hazardous task handling storing dangerous object applicant required cause strain commented history gave dr pittorino general practitioner 6 applicant said evidence complaint job liked good enjoyed say recollect anxiety regard work compensation lost depressed nothing bored would describe heavy drinker 6 8 schooner day since 18 seems say accident 1978 took drinking made 2 attempt resume work could stick little memory alcoholic degradation fell left home luddenham september 1981 vaguely remembers gladesville mental hospital seems glebe hospital apparently resuscitated state possibly close death experiencing delerium tremens later rozelle mental hospital waking back home contends neck back still hurt seem full quid feel could give anyone full job find little difficulty accepting account cross examination stated think drinking heavier 1978 accident leaving home 1981 subject odds wife state though accident steady apparently moderate drinker bottle 2 night drink hotel odd bender 2 3 time year drinking heavier accident went state afterwards consuming much 6 bottle day home failure cope return work dozen 18 day described 1978 accident happy lived work calm person would get anxious certain situation could get thing done properly work marriage ups down largely drink noted increase nerve 1975 1976 regarding great pressure work personality difficulty accept mr wale account generally consider version applicant drinking likely closer mark particularly regard amnesia regard certain episode life emphasis regard allegation disability might thought changed strike strange indicative lack bona fides rather think explicable term firstly natural tendency people seeking alleviation person physical mental disability gloss problem alcohol secondly belated recognition worsening alcoholism possibly attributable continued existence mental physical disability 7 orthopaedic doctor early stage doubted existence serious organic disability mr wale neck back felt symptom functional dr taylor late september 1981 expressed different view accepting sign genuine unable diagnose precisely treating doctor perera 1980 1981 still opinion whiplash strained back continuing effect early 1979 dr segelov discounting nerve root pressure disc protrusion thought orthopaedic treatment would helpful dr hedberg diagnosed may 1979 muscular strain neck sacrum noted effect yet ceased october year accepted symptom still persisted increased severity variety consider limiting orthopaedic disability july year commonwealth medical officer found applicant unfit previous duty recommended light duty clerical nature without involvement lifting greater 10 kg continual walking standing climbing stair dr wing appears accepted august 1979 genuine exacerbation symptom caused return work recommended retirement applicant dr puflett doubted september 1981 physical disability found considerable functional element neck lumbar spine disability also found liver impairment slight degree likely cause excessive drinking dr furber accept month orthopaedic spine disability regarding applicant complaint emotional nature dr berry august 1981 doubting whether relevant history come light finding definite evidence non organic basis complaint considered time combination non organic component plus high blood pressure contribute inability work aggravation soft tissue strain may sustained 1978 concluded thus one would accept patient disability result accident basis pathological injury non organic element 8 examining psychiatrist dr bell 1980 felt applicant history detail keeping organic disorder suggest functional disorder reliant patient story suspected given full account queried alcoholic excess 1982 dr blow saw clear dr blow mr wale account detail applicant history given inaccurate stated drank little since accident whereas noted previous way coping life example drinking alcohol withdrawal denial brought prominence dr blow accepted mr wale following accident work lost source self esteem expressed opinion pathological reaction stress loss role come serious proportion hospitalized serious state ill health conclude serious state ill health logically connected time deterioration set progress accident work dr robbie seeing 29 september 1981 left home could well already drinking heavily seems suspected feature discerned applicant chronic anxiety state lifelong one might expect exacerbated somewhat work uncertain employment future cannot said physically fit high blood pressure physical mental condition would make unsuited job set 9 consider evidence establishes probability applicant present disability neck back though specific organic diagnosis made may largely functional nature flow injury work 1978 find greater part disability totally incapacitates work psychiatric order contributed injury work subsequent loss ability work operating create loss self esteem aggravation existing chronic anxiety state allied hypertension immediate consequence injury contributed drive applicant towards significant increase intake alcohol proved secondary factor enlargement psychiatric disorder issuing korsakoff syndrome believe established applicant continuing total incapacity work exception 2 short period day hour since 1978 contributed injury work entitled receive compensation past period continuing propose therefore set aside determination review remit matter commissioner
Adoption of F and IR (anonymised) [2022] NSWSC 262 (2 March 2022).txt	adoption f ir anonymised 2022 nswsc 262 2 march 2022 last updated 14 march 2022supreme courtnew south walescase name adoption f ir anonymised medium neutral citation 2022 nswsc 262hearing date 17 february 2022date order 18 february 2022decision date 2 march 2022jurisdiction equity adoption listbefore sackar jdecision adoption order madecatchwords family law child adoption whether adoption clearly preferable best interest child whether court order child aboriginal child pursuant 4 2 adoption act whether consent birth parent ought dispensed change namelegislation cited adoption act 2000 nsw case cited hackett pseudonym v secretary department community justice 2020 nswca 83pochi v minister immigration ethnic affair 1979 aata 64 1979 36 flr 482sudath v health care complaint commission 2012 nswca 171 2012 84 nswlr 474texts cited n acategory principal judgmentparties secretary department community justice plaintiff k ae defendant representation counsel m c spain plaintiff mr g moore defendant solicitor crown solicitor nsw plaintiff aboriginal legal service defendant file number 2021 119153publication restriction nothing would identify party matter judgment1 application made adoption order respect two child f ir order sought opposed birth mother however court disposed make order accordance summons counsel birth mother submits child case court make order accordance withs 4 2 theadoption act2000
1006839 [2010] RRTA 990 (9 November 2010).txt	1006839 2010 rrta 990 9 november 2010 last updated 15 november 20101006839 2010 rrta 990 9 november 2010 decision recordrrt case number 1006839diac reference clf2010 21543country reference indonesiatribunal member r mathlindate 9 november 2010place 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 indonesia arrived australia date deleted unders 431 2 themigration act 1958as information would identify applicant october 2006 applied department immigration citizenship department protection class xa visa february 2010 delegate decided refuse grant visa july 2010 notified applicant decision review right letter dated july 2010 applicant applied tribunal august 2010 review delegate decision tribunal find delegate decision rrt reviewable decision unders 411 1 c act tribunal find applicant made valid application review unders 412of act relevant lawunders 65 1 visa may granted decision maker satisfied prescribed criterion visa satisfied general relevant criterion grant protection visa force visa application lodged although statutory qualification enacted since may also relevant section 36 2 act provides criterion protection visa applicant visa non citizen australia minister satisfied australia protection obligation 1951 convention relating status refugee amended 1967 protocol relating status refugee together refugee convention convention criterion grant protection class xa visa set inpart 866of schedule 2 themigration regulation 1994 definition refugee australia party refugee convention generally speaking protection obligation people refugee defined article 1 convention article 1a 2 relevantly defines refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return high court considered definition number case notablychan yee kin v miea 1989 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
1511410 (Migration) [2016] AATA 3225 (9 February 2016).txt	1511410 migration 2016 aata 3225 9 february 2016 last updated 17 february 20161511410 migration 2016 aata 3225 9 february 2016 decision recorddivision migration refugee divisionapplicant mr byeong ju yuncase number 1511410dibp reference clf 2015 50220member mara moustafinedate 9 february 2016place decision sydneydecision tribunal affirms decision grant applicant student temporary class tu visa statement made 09 february 2016 6 00pmstatement decision reasonsapplication reviewthis application review decision made delegate minister immigration 19 august 2015 refuse grant applicant student temporary class tu visa unders 65of themigration act 1958 act applicant applied visa 13 august 2015 undertake study australia time visa application lodged student temporary class tu visa contained number subclass limited exception relevant case subclass granted applicant applies student depends upon type course applicant enrolled offer enrolment principal course subclass type course specified minister r 1 40a see cl 570 232 571 232 572 231 573 231 574 231 575 231 schedule 2 themigration regulation 1994 relevant subclass case subclass 572 criterion grant subclass 572 visa set inpart 572of schedule 2 regulation relevantly case include cl 572 211 broadly speaking visa application made australia requires applicant holder substantive visa made visa application within 28 day last substantive visa ceasing delegate refused visa basis applicant satisfy requirement cl 572 211 applicant last substantive visa tu 572 ceased 4 june 2014 applied visa review 13 august 2015 28 day last substantive visa ceased applicant applied tribunal review decision department 20 august 2015 attached department decision record applicant represented relation review registered migration agent 25 august 2015 ahead hearing applicant agent provided copy submission department regarding case correspondence department four confirmation enrolment coes course applicant studying since april 2013 adviser submission outlined circumstance claimed led applicant failure apply visa within required time period included applicant realised last student visa expired received visa grant notification department mistakenly assumed visa valid long overseas student health cover oshc period 15 october 2015 theapplicant appeared tribunal 9 february 2016 give evidence present argument tribunal hearing conducted assistance interpreter korean english language tribunal described requirement cl 572 211 applicant previous student visa ceased 4 june 2014 apply student visa 13 august 2015 noted application found made within 28 day last substantive visa ceasing tribunal discretion consider reason applicant launch visa application within relevant time frame applicant repeated claim outlined paragraph 7 said never received letter department visa expired acknowledged never called department check continued attend course initial study plan two year tribunal reiterated application made 28 day expiry previous visa discretion matter following reason tribunal concluded decision review affirmed consideration claim evidencethe issue present case whether applicant satisfies cl 572 211 criterion requires visa application made australia applicant hold specified substantive visa time alternatively visa holder last substantive visa held specified type relevantly includes student visa cl 572 211 3 b andthe visa application made within 28 day day last substantive visa ceased effect last substantive visa cancelled tribunal made decision set aside substitute cancellation decision minister decision revoke cancellation later day last substantive visa ceased effect day applicant taken notified tribunal decision cl 572 211 3 c andthe applicant satisfies schedule 3 criterion 3005 cl 572 211 3 case visa application made australia evidence tribunal applicant hold substantive visa type specified criterion applicant must meet requirement subclause 3 set last substantive visa specified type last substantive visa held applicant astudent visawhichmeetsthe requirement cl 572 211 3 b visa application made within 28 day last substantive visa ceasing evidence tribunal current visa application made 13 august 2015 applicant last substantive visa ceased effect 4 june 2014 tribunal find applicant applied visa 28 day expiry previous student visa tribunal considered information raised applicant however discretion matter basis tribunal find application made within 28 day last substantive visa ceased effect accordingly applicant meet cl 572 211 3 c basis tribunal find applicant satisfy cl 572 211 3 therefore meet requirement cl 572 211 schedule 2 regulation applicant australia hold substantive visa time visa application subclass within class tu visa class requirement cl 572 211 3 reason given tribunal also find applicant meet requirement subclass decisionthe tribunal affirms decision grant applicant student temporary class tu visa mara moustafinemember
Lewis v Frog Solutions Holdings Pty Ltd [2016] FWC 2107 (5 April 2016).txt	lewis v frog solution holding pty ltd 2016 fwc 2107 5 april 2016 2016 fwc 2107fair work commissiondecisionfair work act 2009s 394 unfair dismissalben lewisvfrog solution holding pty ltd u2014 4985 deputy president gooleymelbourne 5 april 2016application relief unfair dismissal 1 5 june 2014 issued decision1staying application made mr lewis creditor frog solution holding pty ltd passed resolution voluntarily wind company 2 17 march 2016 commission performed search asic company database revealed frog solution holding pty ltd acn 163 645 289 deregistered 13 december 2015 3 correspondence sent mr lewis representative 18 march 2016 advising unless filed notice discontinuance issue decision dismissing application 4 mr lewis respond correspondence file notice discontinuance 5 section 587of thefair work act 2009provides power commission dismiss application specific circumstance regard fact matter satisfied mr lewis application reasonable prospect success2and therefore dismissed deputy presidentvar _gaq _gaq _gaq push _setaccount ua 9592794 1 _gaq push _trackpageview function var ga document createelement script ga type text javascript ga async true ga src http document location protocol http ssl http www google analytics com ga j var document getelementsbytagname script 0 parentnode insertbefore ga 1 2014 fwc 3754 2 587 1 c act printed authority commonwealth government printer price code pr578691
Eleanor v The Body Corporate for Montego Court [2010] QCAT 24 (9 February 2010).txt	eleanor v body corporate montego court 2010 qcat 24 9 february 2010 last updated 15 february 2010citation eleanor v body corporate montego court 2010 qcat 24parties judith eleanorvthe body corporate montego court ct 13733application number kl049 09matter type civil disputeshearing date 9 february 2010heard brisbanedecision c endicott senior memberdelivered 9 february 2010delivered brisbaneorders made adjustment equal contribution lot entitlementscatchwords body corporate community management adjustment contribution lot entitlementappearances representation hearing took place paper absence party reason decisionintroductionthe montego court unit surfer paradise comprise 4 residential unit three unit similar size one unit significantly larger area others owner largest unit filed application commercial consumer tribunal seeking adjustment contribution lot entitlement unequal contribution based primarily area lot equal contribution body corporate expenditure issue legislationfrom 1 december 2009 queensland civil administrative tribunal tribunal replaced commercial consumer tribunal commencement thequeensland civil administrative tribunal act 2009 act undersection 256of act pending proceeding proceeding commenced one tribunal replaced 2009 act heard replaced tribunal prior 1 december 2009 taken proceeding queensland civil administrative tribunal according section 271 act tribunal must deal matter subject pending proceeding thequeensland civil administrative tribunal act 2009or enabling act enabling act case thebody corporate community management act 1997 provides insection 48 1 owner lot community title scheme may apply chapter 6 order specialist adjudicator adjustment lot entitlement schedule b provided qcat act order qcat exercising tribunal original jurisdiction adjustment lot entitlement schedule 6 contribution schedule respective lot entitlement equal except extent equitable circumstance equal thebody corporate community management act 1997provides insection 49matters tribunal must regard considering adjustment lot entitlement 2 section set matter specialist adjudicator qcat may may regard deciding contribution schedule equitable circumstance respective lot entitlement equal b interest schedule equitable circumstance individual lot entitlement reflect respective market value lot 3 however matter specialist adjudicator qcat may regard deciding matter mentioned subsection 2 limited matter stated section 4 specialist adjudicator qcat may regard community title scheme structured b nature feature characteristic lot included scheme c purpose lot used 5 specialist adjudicator qcat may regard knowledge understanding applicant lack knowledge misunderstanding part applicant relevant time lot entitlement subject lot lot included community title scheme b purpose lot entitlement used 6 section relevant timemeans time applicant entered contract buy subject lot subject lotmeans lot owned applicant submissionsin statement claim m eleanor sought adjustment contribution schedule interest schedule subsequently m eleanor clarified writing seeking adjustment contribution schedule interest schedule m eleanor submitted shared facility unit complex clothes line m eleanor identified shared expense lawn mowing security lighting m eleanor contended installed security lighting shared security lighting asset benefit m eleanor submitted statement claim stair unit within lot responsibility verandah enclosure contended derived visual benefit garden owner responsible window cleaning pest control contended public liability insurance covered owner workload body corporate manager owner m eleanor contended unit complex single water meter complex paying water rate according lot contribution schedule submission made writing 21 october 2009 m eleanor submitted general maintenance cost unit responsibility lot owner maintenance building including painting work benefit lot owner m eleanor obtained quote installation water meter body corporate contended need body corporate water usage would case fire m eleanor conceded submission cost building insurance borne equally lot owner contended cost sensor lighting maintenance common property stair garden borne equally lot owner m eleanor contended cost cleaning exterior surface window never assumed body corporate body corporate montego court responded application indicating opposition equal lot contribution lot owner submission made effect original community management arrangement based contribution calculated respective area lot relation whole area complex contended m eleanor unit greater area compared unit gave rise higher general maintenance cost including higher cost exterior painting submitted discrepancy area placed greater demand body corporate maintenance service submitted larger area m eleanor unit result ability unit accommodate people unit consume water leading average water usage unit submitted greater unit area m eleanor unit result m eleanor contributing body corporate insurance levy submitted exterior sensor lighting common property benefit lot owner electricity cost incurred sensor lighting negligible contended stair m eleanor unit part common property view garden obscured work done lot owner enclose unit verandah submitted cleaning exterior surface window responsibility body corporate m eleanor unit window would require use scaffolding clean body corporate supported lot contribution remaining unequal set original community management arrangement conclusionit dispute m eleanor unit significantly larger area three unit montego court disputed current contribution schedule based respective size unit dispute whether equitable require lot owner contribute equally body corporate cost relation complex provision ofsection 48 6 thebody corporate community management act 1997when application adjustment lot contribution made tribunal required adjust respective lot entitlement lot equally contribute cost body corporate unless equitable entitlement equal supreme court queensland infischer v body corporate centrepoint ct 7779 1 given consideration statutory requirement equality lot entitlement case chesterman j noted preferable view contribution schedule provide equal contribution lot owner except insofar lot shown give rise particular cost body corporate lot case confirmed question whether schedule adjusted answered regard demand made service amenity provided body corporate respective lot contribution cost incurred body corporate starting point equality departure position allowable equitable recognise inequality determination adjusts entitlement away equal contribution position made reference factor financial impact consequence body corporate according chesterman j tribunal considering adjustment lot entitlement away equality may regard matter specified insection 49 4 thebody corporate community management act 1997only extent matter may affect cost operating community title scheme 2 applying interpretation legislation articulated infischer scase tribunal must look demand made service amenity provided body corporate montego court respective lot contribution respective lot cost incurred body corporate evidence matter extensive party referred following service provided body corporate cost incurred body corporate building insurance public liability insurance building common property maintenance painting security sensor garden exterior window cleaning clothes line lawn mowing body corporate manager provision insurance building common property area body corporate excluded adjustment consideration virtue regulation made thebody corporate community management act 1997 3 opinion tribunal argument demand service listed paragraph 24 provided body corporate differentiated size individual unit complex substantiated evidence cost incurred body corporate maintain exterior building structure including painting may well dependent surface area maintain could logically dependent factor associated m eleanor unit existence defect requiring special attention detail requiring close time consuming work place quite separate m eleanor unit absence evidence cost maintenance painting exterior structure immediately supporting m eleanor unit one quarter cost whole work tribunal satisfied m eleanor unit demand service cost building maintenance unit complex none service public liability insurance security sensor garden clothes line provided benefit individual unit owner common benefit unit owner tribunal satisfied starting point present case must vary current contribution lot entitlement reach position equality tribunal consider whether departure position justified case neither m eleanor respondent provided expert evidence could analysed cost contribution respective unit owner analysis provided evidence proportion water usage respective unit absence evidence could reveal material inequity contribution respective unit cost incurred body corporate tribunal satisfied departure position equal contribution unit owner cannot justified tribunal determines lot entitlement schedule relating contribution schedule montego court must adjusted respective lot entitlement equal 1 2004 qca214 2 paragraph 33 3 section 75and112 4 body corporate community management small scheme module regulation 2008
Guler, Caner [2002] MRTA 5507 (23 September 2002).txt	guler caner 2002 mrta 5507 23 september 2002 last updated 27 february 2003 2002 mrta 5507catchwords review visa refusal subclass 050 bridging general breach condition exercise discretionreview applicant caner gulervisa applicant abovetribunal migration review tribunalpresiding member james mahoneymrt file number v02 06466dept file number unknowndate decision 23 september 2002at melbournedecision tribunal affirms decision review cancel bridging e class visa held review applicant statement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural indigenous affair delegate 12 september 2002 cancel bridging e class visa subclass 050 held caner guler visa applicant also review applicant male national turkey born 13 september 1983 delegate decision cancel visa made themigration act 1958 act jurisdiction standing2 visa applicant lodged application review tribunal 13 september 2002 decision reviewable tribunal application review properly made person standing apply review legislation policy3 section 338 3 act set power tribunal review cancellation decision allowing review decision cancel visa non citizen migration zone time cancellation immigration clearance section 338 4 b provides review decision cancel bridging visa person detention cancellation 4 reviewing cancellation decision tribunal generally restricts considering ground cancellation raised delegate tribunal also examines procedure followed delegate cancelling visa ensure requirement set act met 5 section 116of act provides visa may cancelled minister satisfied ground specified insection 116 1 andregulation 2 43are met considering cancelling visa section 119requires minister give notice appear ground proposed cancellation notice must comply requirement ofsection 126 given notice section 124requires minister make decision receiving response visa holder time commenting pass minister decides cancel visa decision must notified way prescribed bysection 127 6 reaching decision review tribunal bound act various regulation written direction issued minister undersection 499of act matter may subject policy found publication procedure advice manual 3 pam3 migration series instruction msis produced department immigration multicultural indigenous affair department policy guideline observed inconsistent legislation cogent reason application 7 tribunal power affirm vary set aside decision cancel visa tribunal set aside decision cancel visa effect visa never cancelled even ground cancellation established visa would otherwise expired outcome visa longer current particular consequence cancellation longer apply 8 legislation policy material immediately relevant review legislation section 116of act regulation 2 43of regulationsitem 13 5 schedule 1 regulationspart 050of schedule 2 regulationsconditions 8101 8505 8506 schedule 8 regulationspolicy migration series instruction msi 340 visa cancellation undersections 109 116 128and140 migration series instruction msi 336 bridging e visa subclass 050 legislative framework guideline section 6 relevant case law braun v minister immigration local government ethnic affair 1991 fca 611 1991 33 fcr 152broussard v minister immigration ethnic affair 1989 21 fcr 472ghassan dib v minister immigration multicultural affair 1998 fca 415 22 april 1998 minister immigration local government ethnic affair v montero 1991 fca 368 1991 31 fcr 50kim v witton 1995 fca 1508 1995 59 fcr 258ross v minister immigration multicultural affair 2000 fca 1716 14 november 2000 9 tribunal generally regard regulation stood time visa cancellation however subsequent amendment may apply circumstance evidence10 tribunal following document t1 mrt case file v02 06466 folio numbered 1 43 d1 departmental case file clf2001 44210 folio numbered numbered 11 visa applicant aged 19 year old single male national turkey initially arrived australia 27 november 2000 holder student temporary class tu visa subclass 560 granted 17 november 2000 expired 2 june 2001 5 december 2000 visa applicant applied granted subclass 560 visa valid 2 june 2001 included different condition t1 f 73 74 12 record department electronic database visa applicant held valid visa date became unlawful non citizen 3 june 2001 t1 f 74 13 departmental compliance officer acting information received 30 august 2001 located visa applicant address windsor visa applicant identified detained unders 189of act 14 visa applicant interviewed 30 august 2001 confirmed arrived australia 27 november 2000 subclass 560 visa stated sufficient fund continue study could return turkey stated future australia rather turkey expressed desire remain australia visa applicant claimed close relative relationship australia stated worked city pizza melbourne maximum 20 hour per week period excess 7 month visa applicant money 10 citibank account approximately 2 000 worth furniture time visa applicant stated want depart voluntarily stated intended apply refugee status d1 f 13 21 15 7 september 2001 visa applicant lodged application protection class xa visa subclass 866 includes application bridging e visa d1 f 30 32 department refused protection visa 1 november 2001 visa applicant subsequently 5 november 2001 lodged application review refugee review tribunal rrt rrt affirmed decision 11 january 2002 16 department officer requested payment security 10 000 7 september 2001 ensure visa applicant complied condition attached bridging e visa granted delegate advised condition would apply bridging e visa granted 17 delegate decided refuse grant bridging e visa visa applicant 11 september 2001 delegate stated decision record satisfied visa applicant shown capacity support without working granted bridging e visa additionally visa applicant failed lodge required security deposit 10 000 delegate stated visa applicant would able support community therefore would abide mandatory condition 8101 prohibited work visa granted d1 f 33 38 39 18 12 september 2001 visa applicant lodged tribunal application review decision refuse bridging e visa t1 f 18 24 visa applicant stated time review security deposit 10 000 excessive unwarranted stated bridging visa could secured mean lodgement 10 000 ensure abide condition subsequently stated would unable pay security deposit especially required support period bridging visa informed tribunal could return turkey fear persecution visa applicant apologised overstaying visa informing department change address continued state former employer offered support provide 750 per month eligible red cross assistance 6 month visa applicant claimed father property turkey cash resource however mentioned father owed considerable amount money pursued court action 19 tribunal considered evidence remitted matter department reconsideration direction certain condition attached visa security deposit reduced 5 000 visa applicant granted extension time pay security deposit 16 october 2001 failed lodge security deposit decision refuse visa therefore affirmed 20 visa applicant lodged application bridging e visa 16 october 2001 application invalid lodged within 30 day previous application 21 bridging e visa application lodged 19 october 2001 delegate set security deposit 5 000 ensure visa applicant would abide visa condition 23 october 2001 bridging e visa application refused delegate basis visa applicant would abide condition imposed visa granted 22 application lodged tribunal hearing conducted 29 october 2001 tribunal remitted matter department direction visa applicant given visa condition provided security deposit 5 000 lodged visa applicant required pay security deposit 27 november 2001 failing decision review affirmed visa applicant pay deposit decision refuse affirmed 23 29 november 2001 visa applicant lodged another application bridging e visa authorised officer department 30 november 2001 requested security deposit 5 000 paid ensure compliance condition visa granted 24 3 december 2001 delegate decided refuse bridging e visa visa applicant delegate stated decision made ground visa applicant would abide condition 8101 8401 8506 stated visa applicant mean support money visa applicant expressed willingness work without permission likely work released 25 3 december 2001 visa applicant lodged application review tribunal stated could afford pay security deposit 5 000 26 12 december 2001 tribunal affirmed decision refuse grant bridging e visa tribunal found visa applicant failed meet clause 050 223 tribunal satisfied visa applicant would abide condition imposed bridging e visa granted tribunal affirmed decision refuse grant visa affirmed decision require security 5 000 subclass 050 visa granted 27 visa applicant lodged application bridging e visa 11 january 2002 d2 f letter support asylum seeker resource centre hotham mission brigidine sister christine thornblom provided letter indicate writer would provide accommodation financial social support visa applicant released bridging e visa d2 f b asylum seeker resource centre lodged security 5 000 behalf visa applicant 11 january 2002 following condition imposed visa 8101 holder must engage work australia 8207 holder must engage study training australia 8401 holder must report time time b place specified minister purpose 8505 holder must continue live address specified holder grant visa 8506 holder must notify immigration least 2 working day advance change holder address 8507 holder must within period specified minister purpose pay b make arrangement satisfactory minister pay cost within meaning division 10 ofpart 2of act holder detention department decided grant bridging e visa 11 january 2002 28 visa applicant lodged appeal respect rrt decision federal court 1 february 2002 application still current visa applicant granted bridging e visa 10 april 2002 term condition granted 11 january 2002 29 visa applicant observed working café operated former employer breach work condition 8101 attached visa detained unders 192of act department issued visa applicant notice intent cancel 12 september 2002 visa subsequently cancelled undersection 116 1 b 30 visa applicant lodged application review tribunal 13 september 2002 t1 f 3 visa applicant asked thought department decision incorrect made following response breached condition bve working helping ex employer café ex employer also sponsor helped day rent food necessity helping café short 31 17 september 2002 tribunal provided visa applicant information unders 359aand requested comment t1 f 48 visa applicant sent additionals 359aletter 18 september also requested comment material t1 f 54 32 19 september 2002 tribunal received letter facsimile purporting signed visa applicant purporting transmitted former employer yildiz letter part stated one else friend go family friend gratefull sic everything done shop get busy get put apron without anyone telling help might helping half hour maybe hour sit back place would hire anybody work appeal pay family sic business like sic home mine 33 hearing conducted 19 september 2002 visa applicant gave evidence visa applicant confirmed chronology event set said appeal federal magistrate court hearing fixed 16 october 2002 confirmed statement letter went café see friend thing busy would put apron clear table maybe hour said café open late night busy lunchtime helped stated ate meal pay 34 yildizhan yildiz daughter owner café also gave evidence stated visa applicant like fixture shop happy confirmed help clearing table receive payment findingsnotification procedures35 act set procedure cancelling visa section 119 requires visa holder notified appear ground cancellation particular ground section also requires visa holder invited show ground exist reason visa cancelled section 120 121 act particularise relevant information given invitation given section 124 prevents cancellation visa holder opportunity respond time response expired section 127 specifies visa holder notified cancellation 36 primary decision maker case followed procedure set subdivision e act cancelling visa section 116 ground cancellation37 section 116 act provides minister may cancel visa satisfied holder complied condition visa subsection 116 1 b case condition visa condition 8101 state holder must engage work australia 38 regulation 1 03 defines work activity australia normally attracts remuneration considering whether visa applicant activity constitutes work tribunal regard tokim v witton 1995 fca 1508 1995 59 fcr 258 sackville j considered number authority relation definition work said page 268 enough constitute work person engages activity must activity australia normally attracts remuneration test whether individual performing activity receives remuneration whether performs activity commercial purpose reason test applied objective one namely whether activity performed individual normally attracts remuneration australia 39 tribunal also regard toghassan dibwhere federal court considered meaning term work defined regulation court referred case ofminister immigration local government ethnic affair v montero 1991 fca 368 1991 31 fcr 50 braun v minister immigration local government ethnic affair 1991 fca 611 1991 33 fcr 152andkim v wittonand stated opinion definition regulation 1 03 capable variety interpretation depending upon factor taken consideration therefore cannot applied without additional qualification word commercial social domestic altruistic motivation may context fact case assist determining whether particular activity undertaken voluntarily one ordinarily attracts remuneration case establish question whether activity work requires going beyond nature activity question particular context assistance provided provide guide type circumstance may influence determination 40 visa applicant stated department work merely helping former employer café return providing free rent meal cigarette stated wrong thing going work could worked anywhere t1 f 15 visa applicant confirmed hearing put apron cleared table tribunal find action clearing table activity usually attracts remuneration therefore find visa applicant working defined regulation 41 msi 340 provides following guidance assessing whether ground cancellation made paragraph 116 1 b act considering whether exercise discretion cancel applicant visa tribunal must regard following matter purpose visa holder travel stay australia extent non compliance condition subject visa granted example visitor located working illegally may committed serious breach condition student visa holder found working two hour allowed twenty hour per week still attending lecture meeting course requirement degree hardship may caused visa holder family member circumstance ground cancellation arose person behaviour relation department previous occasion example truthfulness statement made officer department application department overall record compliance visa condition provision undertaking 42 section 116 3 provides circumstance minister must cancel visa set regulation 2 43 follows 2 subsection 116 3 act circumstance minister must cancel visa circumstance comprising ground set paragraph 1 b b case student temporary class tu visa minister satisfied visa holder complied condition 8104 8105 condition applies visa ii condition 8202 43 mandatory provision apply case therefore power cancel visa obligation explanation phrase minister may cancel visa occurs section 116 section 501 act given spender j inross v minister immigration multicultural affair 2000 fca 1716 14 november 2000 said term 501 2 permissive confers power cancel visa exercise minister discretion interpretation given section minister evidenced explanation proffered officer said decided section obliges cancel visa unless satisfied view important difference power obligation want make plain concerned proceeding question onus question case flow possible difference minister depending whether material positively satisfies visa cancelled view section directs whether 44 considering whether cancel applicant visa tribunal regard purpose visa holder travel stay australia visa applicant came australia holder student visa allowed expire remained australia worked apprehended statement made interview open speculate intention always remain australia extent non compliance condition non compliance work condition extensive example attitude visa applicant towards australian migration law propensity breach law suite purpose degree hardship may caused visa holder family member hardship visa applicant suffer required remain custody pending resolution judicial appeal visa applicant family australia circumstance ground cancellation arose visa applicant apprehended working breach visa condition conclusion45 tribunal positively satisfied correct preferable decision subclass 050 visa cancelled decision46 tribunal affirms decision review cancel bridging e class visa held review applicant
Qiu, Wei [2003] MRTA 2071 (2 April 2003).txt	qiu wei 2003 mrta 2071 2 april 2003 last updated 21 may 2003 2003 mrta 2071catchwords student visa cancellation section 116 subclass 572 condition 8202 failure meet course requirement mandatory cancellationreview applicant wei qiuvisa applicant abovetribunal migration review tribunalpresiding member richard derewlanymrt file number n02 08587dept file number clf2002 059619date decision 2 april 2003at sydneydecision tribunal set aside decision review cancel review applicant student vocational education training sector class tu subclass 572 visa substitute decision visa cancelled statement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural indigenous affair delegate cancel subclass 572 vocational education training sector visa held mr wei qiu applicant applicant national people republic china born 22 april 1983 delegate decision cancel visa made 3 december 2002 themigration act 1958 act jurisdiction standing2 applicant lodged valid application review migration review tribunal 5 december 2002 decision reviewable tribunal application review validly made person standing apply review legislation policy3 section 338 3 act set tribunal general power review cancellation decision allowing review decision cancel visa non citizen migration zone time cancellation immigration clearance 4 reviewing cancellation decision tribunal generally restricts considering ground cancellation raised department also examines procedure followed department cancelling visa ensure requirement set act met 5 reaching decision review tribunal bound act various regulation written direction issued minister undersection 499of act matter may subject policy found publication theprocedures advice manual 3 pam3 themigration series instruction msis produced department immigration multicultural indigenous affair department policy guideline observed inconsistent legislation cogent reason application 6 tribunal power affirm vary set aside decision cancel visa tribunal set aside decision cancel visa effect visa treated never cancelled visa would otherwise expired outcome visa longer current particular consequence cancellation longer apply eg restriction applying another visa 7 legislation policy material immediately relevant review legislation section 116of themigration act act regulation 2 43of themigration regulation 1994 regulation part 572of schedule 2 regulationsclause 8202 schedule 8 regulationspolicy migration series instruction msi 368 visa cancellation undersections 109 116 128 and140 issued 3 october 2002procedure advice manual 3 generic guideline g student visascases minister immigration multicultural affair v hou 2002 fca 574minister immigration multicultural affair v nguyen 2002 fca 460pradhan v minister immigration multicultural affair 1999 fca 12408 tribunal generally regard regulation stood time visa cancellation however subsequent amendment may apply circumstance notification procedures9 act set procedure cancelling visa notice ground cancellation considered must given visa holder invited show either ground exist reason visa cancelled section 119 holder must given opportunity respond visa may cancelled holder given notice cancellation includes information relevant cancellation 10 primary decision maker case followed procedure set subdivision e act cancelling visa section 116 general power cancel ground cancellation11 primary decision maker case arriving decision cancel visa relied ground provided section 116 1 b relevant part section 116 force time cancellation decision set paragraph 2 43 2 b regulation set prescribed circumstance minister must cancel visa pursuant subsection 116 3 act minister may cancel visa subsection 116 1 act paragraph 2 43 2 b regulation includes non compliance condition 8202 prescribed circumstance minister must cancel student visa section 116116 1 subject subsection 2 3 minister may cancel visa satisfied b holder complied condition visa 3 minister may cancel visa subsection 1 minister must exist prescribed circumstance visa must cancelled regulation 2 43 2 subsection 116 3 act circumstance minister must cancel visa circumstance comprising ground set paragraph 1 b b case student temporary class tu visa minister satisfied visa holder complied condition 8104 8105 condition applies visa ii condition 8202 compliance condition 820212 delegate made decision cancel review applicant visa pursuant paragraph 116 1 b subsection 116 3 act paragraph 2 43 2 b regulation basis finding review applicant complied condition 8202 visa delegate found review applicant complied condition 8202 review applicant attended least 80 scheduled contact hour semetsre 2 2002 sydney institute business technology 13 version condition 8202 applied 21 february 2002 date review applicant visa granted found item 8202 schedule 8 regulation read follows 82028202 1 holder holder subclass 560 student visa ausaid student holder subclass 576 ausaid defence sector visa must meet requirement subclauses 2 3 2 holder meet requirement subclause holder enrolled registered course b case holder subclass 560 571 school sector visa exchange student holder enrolled full time course study training 3 holder meet requirement subclause case holder whose education provider keep attendance record minister satisfied holder attends least 80 contact hour scheduled course run le semester course ii course run least semester term semester course b case holder achieves academic result certified education provider least satisfactory course run le semester course ii course run least semester term semester whichever shorter course 4 case holder subclass 560 visa ausaid student holder subclass 576 ausaid defence sector visa holder enrolled full time course study training 14 following decision federal court inhouandnguyenthe tribunal discretion set aside visa cancellation substantiated breach condition 8202 non compliance condition established tribunal bound operation s116 3 affirm visa cancellation evidence15 tribunal regard following material mrt case file n02 08587 departmental file clf2002 059619 16 applicant first arrived australia subclass 560 student visa 8 april 1999 visa ceased 9 september 1999 applicant issued subclass 560 student visa 9 july 1999 ceased 21 february 2002 current visa subclass 572 vocational education training sector visa subject review granted 21 february 2002 due expire 4 april 2003 attached visa condition 8202 meet course requirement 17 29 october 2002 review applicant issued notice sydney institute business technology sibt pursuant tosection 20of theeducation service overseas student act 2000 informing breach condition visa relating academic performance failed attend office department within 28 day visa would automatically cancelled notice stated failed maintain 80 attendance class 76 79 period 1 july 2002 12 october 2002 18 19 november review applicant made available departmental officer stated purpose explaining breach alleged notice within 28 day time limit set s137j act review applicant provided certificate attendance sibt indicates leave taken including leave covered medical certificate leave approved sibt certificate attendance indicate review applicant attendance semester 1 2002 4 march 2002 7 june 2002 97 62 attendance semester 2 2002 1 july 2002 4 october 2002 76 79 19 19 november 2002 delegate issued review applicant written notice intention cancel visa stating ground cancellation breach 8202 condition failure maintain least 80 maintain satisfactory academic progress term course sibt advise attendance 76 79 period 1 7 02 12 10 02 review applicant given opportunity respond adverse information provided thenotice intention consider cancelling visain interview scheduled 3 december 2002 20 20 november 2002 department contacted sibt requesting information regarding review applicant breach condition 8202 21 sibt responded department request 25 november 2002 sibt indicated form provided department review applicant making satisfactory academic progress sibt provided certificate attendance supplied review applicant approached department 19 november 22 review applicant attended department office respond thenotice intention consider cancela visa 3 december 2002 23 review applicant provided delegate submission stated thought attendance calculated course ended sick hoping make low attendance period ill building attendance end course stated would attach medical certificate explain absence 24 3 december 2002 delegate made decision cancel review applicant subclass 572 vocational education training sector visa delegate found review applicant breached condition 8202 cancellation therefore mandatory pursuant tosubsection 116 1 b 116 3 andregulation 2 43 2 b themigration act delegate stated decision record review applicant 13 unapproved absence semester 2 2002 review applicant stated said absence due ill health seen doctor also stated school warned attendance close falling required 80 also stated school record keeping attendance level unreliable 25 applicant applied tribunal review decision cancel visa 5 december 2002 26 time application tribunal review applicant stated good education record since first started study australia submitted statement past education provider stated review applicant good student belief attendance semester 2 2002 3 month period student history 2 year result cancellation student visa 27 5 february 2003 tribunal invited visa applicant comment writing information tribunal considered would reason part reason affirming decision review tribunal received submission review applicant representative documentation 26 february 2003 24 march 2003 tribunal taken account making decision particular tribunal regard medical certificate dated 9 august 21 august 2002 certifying review applicant unfit attend school illness 9 12 august 2002 inclusive 21 august 2002 28 tribunal held hearing 2 april 2003 review applicant gave evidence review applicant stated semester 2 2002 still suffering stress result broken girlfriend previous semester mind disordered never problem attendance past think always submit medical certificate realised beginning 2003 moving another flat medical certificate period august 2002 finding reasons29 issue review follows breach condition 8202 b non compliance withsection 116 1 b tribunal discretion must affirm decision cancel visa 30 evidence sibt semester 2 2002 review applicant 4 session per week 14 week making total 56 session sibt certified review applicant 13 unapproved absence total 56 gave attendance rate 76 79 31 tribunal satisfied additional medical evidence unfit attend school 9 12 21 august 2002 3 day recorded unapproved absence sibt tribunal find review applicant given reasonable explanation submit certificate sibt tribunal also satisfied medical certificate issued contemporaneously date august 2002 visited doctor 32 taking account additional evidence tribunal find review applicant total 10 absence 56 session covered medical certificate approved leave tribunal therefore find give review applicant attendance rate 82 14 semester 2 2002 33 tribunal accordingly satisfied review applicant breach condition 8202 student visa semester 2 2002 review applicant therefore breachsection 116 1 b act ground mandatory cancellation visa made decision34 tribunal set aside decision review cancel review applicant student vocational education training sector class tu subclass 572 visa substitute decision visa cancelled
Autodesk Inc & Ors v Ginos Engineers Pty Ltd & Anor [2007] FMCA 1848 (5 November 2007).txt	autodesk inc or v ginos engineer pty ltd anor 2007 fmca 1848 5 november 2007 last updated 14 november 2007federal magistrate court australiaautodesk inc or v ginos engineerspty ltd anor 2007 fmca 1848copyright alleged infringement copyright licensed software contravention ofs 36of thecopyright act 1968 cth practice procedure application transfer proceeding sydney registry adelaide registry federal magistrate court application refused copyright act 1968 cth federal court australia act 1976 cth 48federal court rule cth 10 r 1 30 r 6federal magistrate act 1999 cth 52federal magistrate court rule 2001 cth r 8 01federal magistrate regulation 2000 cth australian competition consumer commission v paul ltd 2002 fca 71national mutual holding pty ltd order v sentry corporation another 1988 19 fcr 155ogawa v university melbourne 2005 fca 1139first applicant autodesk incorporatedsecond applicant autodesk asia pty ltdthird applicant autodesk australia pty ltdfirst respondent ginos engineer pty ltdsecond respondent zisis ginosfile number syg 2536 2007judgment lloyd jones fmhearing date 29 october 2007delivered sydneydelivered 5 november 2007representationcounsel applicant mr jm hennessysolicitors applicant gilbert tobincounsel respondent mr rw evanssolicitors respondent peter scragg associatesorders 1 application transfer proceeding sydney registry adelaide registry dismissed 2 respondent ginos engineer pty ltd zizis ginos pay applicant autodesk incorporated autodesk asia pte ltd autodesk australia pty ltd cost application federal magistratescourt australia atsydneysyg 2536 2007autodesk incorporatedfirst applicantandautodesk asia pte ltdsecond applicantandautodesk australia pty ltdthird applicantandginos engineer pty ltdfirst respondentandzisis ginossecond respondentreasons judgmentthe proceedings1 first applicant autodesk incorporated corporation incorporated united state america engaged business making licensing software second applicant autodesk asia corporation incorporated singapore engaged business licensing software australia autodesk incorporated australian subsidiary autodesk australia pty ltd third applicant name three applicant collectively autodesk group autodesk group control australia suit computer software autodesk software piece material time original literally work within meaning thecopyright act 1968 cth first respondent ginos engineer pty ltd australian company based adelaide engaged business providing civil engineer consultancy service including advice design supervision second respondent mr ginos sole director secretary shareholder manager ginos engineer ginos engineer held software license autodesk software however alleged date unknown autodesk group ginos engineer reproduced material formcopies autodesk software without license infringing copy 2 autodesk group full cooperation ginos engineer conducting audit 5 june 2007 relation autodesk software present ginos computer system office victoria square adelaide audit identified 33 copy autodesk software five copy current previous license autodesk group claim audit showed 28 copy software licensed ginos engineer admitted number unlicensed copy premise installed computer application proceeding heard adelaide3 application respondent transfer proceeding sydney adelaide adjourned first court date 6 september 2007 date made order respect future conduct proceeding included filing affidavit evidence approach adopted basis pleading closed evidence filed would better position know ambit dispute consideration respondent proceeding commenced separate court action adelaide applicant continued would direct effect proceeding adelaide proceeding subsequently settled longer remain consideration proceeding 4 respondent complied order 6 september 2007 applicant applied raphael fm 12 october 2007 order respondent comply order 6 september 2007 honour granted short extension time respondent comply note time hearing number order raphael fm complied note attempt rectify breach immediately prior scheduled hearing however discovery issue appears deficiency list category discovery filed applicant transfer proceeding proper test apply5 section 52ofthefederal magistrate act 1999 cth state 52 1 federal magistrate court may sit place australia 2 federal magistrate court federal magistrate may stage proceeding federal magistrate court order proceeding b part proceeding conducted continued place specified order subject condition federal magistrate court federal magistrate imposes rule 8 01of thefederal magistrate court rule 2001 cth state 8 01 change venue 1 party file application response proceeding may apply proceeding heard another registry court 2 considering application court must regard convenience party b limiting expense cost proceeding c whether matter listed final hearing relevant matter 6 operation thefederal magistrate actand thefederal magistrate regulation 2000 cth considered federal court inogawa v university melbourne 2005 fca 1139at 103 per ryan j 103 court federal magistrate court national court facility conduct proceeding video link major city commonwealth well court may sit place australia discretion conduct hearing way may exercised accommodate convenience exigency witness time time see eg s 52 div 5 ofpt 6of thefederal magistrate act 1999 7 proper test apply transfer court registry examined greater detail full court federal court innational mutual holding pty ltd order v sentry corporation another 1988 19 fcr 155 full court considered operation ofs 48of federal court australia act 1976 cth order 10 rule 1 2 f order 30 rule 6 thefederal court rule cth section 48of thefederal court australia actstates change venuethe court judge may stage proceeding court direct proceeding part proceeding conducted continued place specified order subject condition court judge imposes order 10 r 1 federal court rule state direction hearing general 2 without prejudice generality subrule 1 1a court may f direct proceeding transferred place registry proper place proceeding transferred registrar proper place proceeding transferred shall transmit document charge relating proceeding registrar proper place proceeding transferred order 30 r 6 federal court rule state place trial 1 subject subrule 2 place trial proceeding proper place 2 court may direct trial part trial proceeding held place proper place 8 honour bowen cj woodward lockhart jj state innational mutual holding pty ltdat 162 power conferred 48 recognises national character court factor court entitled take account considering whether one city appropriate another interlocutory hearing trial numerous court must weigh factor case balance convenience generally relevant consideration necessarily determinative case party commences proceeding filing application particular registry court onus proof strict sense discharged party seeking conduct continue proceeding elsewhere noted court may exercise power 30 r 6 either application party motion court must however satisfied considering relevant matter sound reason direct proceeding conducted continued elsewhere starting point proceeding commenced particular place changed one hand party commenced proceeding chose place capriciously court would justified giving weight choice place balance convenience important weight must vary case case ultimately test case conducted continued suitably bearing mind interest party end justice determination issue efficient administration court cannot opinion defined closely precisely 9 justice loughlin said inaustralian competition consumer commission v paul ltd 2002 fca 71at 17 19 17 cycle wheelman pty ltd or v beltech corporation ltd 1988 80 alr 279 gummow j heard motion direct transfer proceeding new south wale registry western australian registry honour noted consequence order conduct proceeding western australian registry perth would proper place within par b definition term 1 r 4 result 30 r 6 trial proceeding would perth unless fixed elsewhere test applied honour observed view simply question court locating balance convenience court must satisfied applicant change status quo identity proper place transfer ordered contrary submission made morning much guidance derived case jurisdiction particularly jurisdiction lacking national character court providing trial jury civil claim 19 present proceeding appropriately instituted northern territory registry hence court must satisfied sound reason direct proceeding conducted continued elsewhere balance convenience generally relevant consideration necessarily determinative national mutual v sentry corporation 162 furthermore test manifest preponderance convenience appropriate test court apply considering motion 48 federal court act court rule national mutual v sentry corporation 167 although onus moving party court must satisfied considering relevant matter sound reason direct proceeding conducted continued elsewhere national mutual v sentry corporation 162 consideration10 application court seek proceeding transferred sydney registry originally filed adelaide registry matter first brought 6 september 2007 foreshadowed would transfer application accommodated order made date consented draft order handed date understanding formal pleading would completed anticipated date interlocutory hearing seeking transfer suggested party agree submission would provide opportunity accurately ass scope magnitude proceeding enable make decision application case filed 13 september 2007 formally seeking order 11 substantial part submission supporting evidence court respect transfer application focused ginos engineer failure comply order 6 september 2007 subsequent order fm raphael corresponding submission solicitor explain non compliance mr evans respondent also anticipated application vary set order possible vacation hearing date mr evans submits transfer would naturally result vacating sydney hearing date allocation new hearing date adelaide would also result extension time prepare respondent case mr evans submits became apparent respondent would able comply order 6 september 2007 received list discovery document applicant relevant order required 3 party exchange category document discovery monday 17 september 2007 and4 party give discovery accordance agreed category monday 24 september 2004 12 mr evans argues one week insufficient agree category provide full discovery thefederal magistrate actand thefederal magistrate court rule mr evans acknowledged hindsight order totally inappropriate relation case applicant intended bring respondent mr evans relied upon affidavit peter scragg affirmed 10 october 2007 set alleged problem experienced respondent complying order foreshadowed interlocutory application court objecting discovery order 13 mr hennessy applicant referred affidavit siabon seet sworn 9 october 2007 contained correspondence party submission material accordance order set 11 note magnitude discovery larger anticipated party order made 6 september 2007 however also note element delay part respondent reply correspondence applicant respect discoveryand significantly attempt hearing seek variation extension time comply order application respect discovery order action foreshadowed order complied 17 september 2007 14 discovery appears major issue conduct proceeding although may explain delay explain action taken solicitor ginos engineer bring court attention note mr hennessey referred correspondence annexed affidavit sioban seet concerning discovery mr evans enquired whether court available consider application respect discovery draw party attention order 10 made 6 september 2007 state party liberty apply two day notice formal application issue discovery application seeking vary court order intend consider issue discovery application confine consideration transfer issue 15 mr evans initially raised issue volume documentation provided ginos engineer relates convenience office located close proximity adelaide registry mr evans subsequently conceded filing document relevant factor make reference point 16 mr evans referred paragraph 7 affidavit peter scragg affirmed 10 october 2007 considered adelaide registry appropriate registry dealing party occurred adelaide witness may give evidence relation dealing resident adelaide uncertainty extent financial record business record first respondent would produced relation matter deficiency production document may become apparent course trial could quickly remedied matter heard adelaide first respondent place business opposite side victoria square adelaide registry federal court situated place business applicant agent employer individual may give evidence behalf applicant within minute registry mr evans submits nature evidence called trial fundamental transfer application submits category document breadth depth discovery indicate case substantially determined document produced autodesk incorporated 17 mr evans also relied affidavit william vagenas affirmed 5 september 2007 solicitor employed peter scragg associate solicitor ginos engineer mr evans referred paragraph 20 25 affidavit 20 instructed ginos engineer pty ltd sole office victoria square adelaide south australia operate solely south australia record south australia computer use software situated adelaide 21 instructed ginos engineer pty ltd employ 15 20 employee nearly business adelaide 22 instructed second respondent sydney action life adelaide extensive business interest adelaide would find difficult travel interstate 23 contract purchase software made adelaide use software adelaide business first respondent purchased software carry business adelaide 24 respondent wish use legal firm peter scragg associate legal representative firm sole office adelaide 25 majority possible witness resident adelaide would result undue expense required travel sydney required give evidence 18 mr evans also indicated one witness sworn affidavit may called michael kelly salesman autodesk software mr kelly respondent solicitor based adelaide mr evans submits case claim damage based audit sydney would appropriate venue however case relates account profit substantially broader nature consequently affect choice venue 19 mr hennessey submits reply gino engineer ordered file affidavit 25 october 2007 note affidavit sent applicant solicitor facsimile appear filed court however applicant assume affidavit respondent intend rely mr hennessey submits respondent solicitor indicated affidavit would follow appear amongst affidavit sent applicant solicitor affidavit bookkeeper like would confirm substantial number witness would required travel sydney mr hennessey submits applicant served respondent affidavit accordance timetable indication witness required cross examination circumstance agree mr hennessey travel applicant witness taken consideration present 20 indicated paragraph 10 application deferred permit filing evidence enable ass relevant merit respect transfer evidence issue narrowed consideration travel witness hearing venue satisfied stage possible identify amount travel required consequently currently prepared transfer proceeding basis material accept submission mr hennessey applicant filed initiating process jurisdiction balance convenience must sufficiently pronounced warrant positive action change status quo matter convenience relied upon party almost equally weighted little separating therefore prima facie presumption prevail dismiss application transfer proceeding cost certify preceding twenty 20 paragraph true copy reason judgment lloyd jones fmassociate date 5 november 2007
Fitzgerald v Return to Work Corporation of South Australia [2023] SAET 41 (2 June 2023).txt	fitzgerald v return work corporation south australia 2023 saet 41 2 june 2023 last updated 2 june 2023fitzgerald v return work corporation south australia 2023 saet 41south australian employment tribunalfitzgerald michaelvreturn work corporation south australiajurisdiction south australian employment court return work act 2014 hearing determinationcase et 22 00087hearing date 6 7 march 2023judgment honour deputy president judge kellydelivered 2 june 2023catchwords applicant assessed 3 whole person impairment wpi noise induced hearing loss applicant say assessor error confining calculation wpi loss frequency 2000 4000hz included loss 500 4000hz would lead wpi threshold 5 wpi lump sum entitlement unders 58of thereturn work act 2014 held applicant demonstrated error part assessor difference opinion exercise clinical judgment error determination compensating authority confirmed entitlement lump sum pursuant tos 58as threshold reached paschalis v return work corporation south australia another 2021 sascfc 44abraham v return work sa 2016 saet 76dallimore v return work sa 2017 saet 72representation counsel applicant m makrisrespondent mr hanussolicitors applicant industrial deafness australia legalrespondent minter ellisonmr fitzgerald suffered noise induced hearing loss nihl tinnitus due exposure noise whilst working electrician complains permanent impairment assessment resultant report dr j tomich dated 3 december 2021 whether accord withs 22of thereturn work act 2014 rtw act impairment assessment guideline iag dr tomich assessed 6 6 binaural hearing loss adjustment presbycusis equating 3 whole person impairment wpi threshold 5 meaning mr fitzgerald eligible non economic loss lump sum payment pursuant 58 rtw act dr tomich confined calculation wpi hearing loss frequency 2000 4000hz essence mr fitzgerald case dr tomich error included loss frequency 500hz 4000hz intensive extensive exposure noise backgroundmr fitzgerald born 12 august 1945 retired working electrician 2014 due age prior retiring 1992 1994 1997 2014 mr fitzgerald self employed electrician generally working four six hour per day five day per week two year prior 2014 still tried work two three hour per day five day per week self employed electrician sub contracted builder electrical work new home said using power drill every day least one hour construction site new home noise trade working around exposed noise compressor tool used tradesman including power saw band saw cement mixer hammer also larger machinery front end loader digger said wear hearing protection mr fitzgerald suffered work injury september 1993 burn injury received worker compensation benefit 1994 1996 last noisy employer butterfield sa pty ltd mr fitzgerald employed approximately six month 1991 generally worked 40 hour week working five day per week van drive domestic industrial electrical job time engaged work butterfield workshop described noisy workshop mr fitzgerald said exposed noise compressor power drill tool including grinder hammer said noise loud able conversation anyone workshop mr fitzgerald described factory electrical work extremely noisy might work including installing powerpoints updating switchboard factory exposed noise machinery operating around constant might spend two three hour factory depending job prior work butterfield mr fitzgerald undertaken work electrician various employer involving exposure noise said worn hearing protection mr fitzgerald sought compensation nature medical expense form hearing aid claim dated 15 september 2020 time retirement work claim accepted nihl tinnitus deemed sustained 1 july 2014 mr fitzgerald said could recall hearing test request employer said first noticed hearing deteriorating 20 year ago particularly case left ear also noticed tinnitus right ear 2000 mr fitzgerald referred ear nose throat surgeon dr verco problem balance dizziness vomiting although mr fitzgerald recall diagnosis dr tomich oral evidence considered likely meniere disease mr fitzgerald underwent surgery caused lose hearing right ear unfortunate expected outcome surgery debilitating meniere disease unfortunately mr fitzgerald dizziness nausea continued 2002 consulted another ent surgeon dr rees another surgical procedure performed right ear resulted considerable improvement dizziness destroyed hearing right ear medical evidencethree audiogram measuring mr fitzgerald hearing loss trial book 1 audiologist vicky lim produced short report audiogram following testing 22 january 2020 report dated 7 august 2020 m lim assessed total binaural hearing loss 27 2 correction presbycusis m lim utilised loss frequency 500 4000hz following making claim mr fitzgerald assessed ent specialist dr sharon kelly dr kelly asked consider question causation compensability requested audiography conducted national hearing care amplifon audiologist petra unterweger 26 november 2020 2 finally part wpi assessment conducted dr john tomich audiometry conducted 29 november 2021 appended report 3 original intention mr fitzgerald call dr kelly give evidence however shortly trial tribunal advised dr kelly would longer called report therefore notionally removed trial book dispute arose party whether audiometry report graph petra unterweger remain trial book evidence tribunal respondent sought audiometry m unterweger included evidence dr tomich seen audiometry part assessment along report dr kelly part relied upon former part explanation included hearing loss frequency 500 1500hz assessment mr fitzgerald nihl mr fitzgerald objected audiometry included evidence m makris counsel mr fitzgerald said audiometry report integral part dr kelly report report longer relied form part evidence tribunal audiometry also excluded view audiometry stand alone piece admissible evidence relevant matter dispute whilst presumably used dr kelly order inform expert opinion also used medical expert form opinion way dissimilar report x ray radiological image produced doctor health professional form part information used reach expert opinion next m makris argued mr fitzgerald would prejudiced able test veracity audiogram conducted m unterweger included question condition audiogram undertaken equipment used equipment last calibrated qualification audiologist referred difference audiogram qualification audiologist known described report m makris agreed report dr kelly including audiogram m unterweger sent dr fagan instructor requesting opinion would appear stage question veracity audiogram raised medical expert providing opinion party audiogram report describe equipment used calibration known expertise audiologists mr hanus counsel respondent pursued tender audiometry report graph primarily reference s 52 53 especially 56 theevidence act 1929relating evidence wholly part produced process machine device described apparently genuine document graph particular recording reading audiometry equipment used undertake testing pointed tos 56of theevidence actcontaining presumption evidence produced process machine device presumed accurate absence evidence contrary alternative mr hanus submitted business record within meaning ofs 53of theevidence actand could admissible evidence without proof tribunal wide power deal evidence whether evidence presented writing decide matter hear oral evidence 4 may also give direction speedy fair conduct proceeding 5 part 14 thesouth australian employment tribunal rule 2022also address question expert evidence rtw act jurisdiction usually mean report expert medical practitioner containing extensive opinion nonetheless rule provide limitation expert may limit number expert particular field better effect quick cost effective resolution real issue proceeding 6 persuaded m makris submission brief report audiogram graph admitted evidence unless audiographer called made available cross examination question validity result qualification audiologist calibration machinery raised expert party m makris submission view simply speculation part circumstance mr fitzgerald made use audiometry requesting report dr fagan presumably consented sent assessor dr tomich m makris opportunity cross examine dr tomich basis opinion relevance difference unterweger audiogram graph ultimately issue proportionality must taken account achieve object cost effective resolution ruled brief report m unterweger audiometry graph 7 properly admitted evidence part trial book dr tomichdr tomich permanent impairment assessment report noted total hearing loss right ear history provided mr fitzgerald pointed towards diagnosis meniere disease surgery right ear resulting total hearing loss abatement vertigo least dr rees surgery dr tomich made assessment using loss 2000 4000hz considered noise induced causation poorer hearing right ear threshold ascribed level left concluded binaural noise induced hearing loss 15 6 adjusted presbycusis 6 6 3 wpi using table 9 2 iag 8 asked comment opinion dr paul fagan loss frequency 500 4000hz considered dr tomich responded due regard given mr fitzgerald occupation electrician intermittent nature potentially hazardous noise exposure characteristic work dr tomich considered compelling evidence likely noise exposure sufficient warrant including lower frequency despite lack hearing protection said audiometric pattern inconsistent noise damage level hearing asked consider level wpi would result inclusion lower frequency using audiology 29 november 2021 dr tomich calculated 15 4 binaural hearing loss translated 8 wpi 9 dr tomich considered hearing loss lower frequency left ear likely product stage 1 meniere disease noted progress meniere disease particularly unpredictable 10 pointed inconsistent pattern audiogram showed plateau indicating inner ear problem moreover frequency uniform uneven peak three audiogram showed subtle distinct variation clinical context would imply variable inner ear cochlear function 11 inconsistent plateau consistent noise induced hearing loss thought meniere disease likely bilateral problem likely related meniere disease pathology 12 case even absence current clinical diagnosis meniere disease remission stage 1 clinical diagnosis evident 13 although three audiogram suggest active meniere disease left ear time taken rule part hearing loss due meniere disease left ear 14 dr tomich satisfied noised induced hearing loss would apply loss 2000 4000hz otherwise dr tomich persuaded change view cross examination face dr fagan view contrary maintained audiogram clear something going inner ear consistent noise induced hearing loss 15 similarly view insufficiency evidence supporting noise induced hearing loss lower frequency change despite evidence mr fitzgerald noise exposure work dr tomich contrasted mr fitzgerald experience noise dose typical person working boilermaker fact mr fitzgerald evidence difficulty conversation fellow worker workplace elevate necessary noise intensity level required 85 decibel influence view problem could present background noise 65 75 decibel 16 dr tomich evidence well noise intensity duration louder noise important calculating noise dose direct information measure noise level mr fitzgerald workplace resorting dr tomich clinical experience field noise survey estimate standard iso 1999 figure dr tomich considered involvement noise induced loss 500 2000hz unlikely 17 dr faganevidence also received dr paul fagan ear nose throat specialist based sydney dr fagan reported 7 june 2022 disagreed dr tomich assessment noise induced hearing loss thought sufficient evidence mr fitzgerald case include loss frequency outside usual 2000 4000hz range followed many year significant noise exposure consistently descending audiometric configuration three audiogram typical severe noise induced hearing loss addition identified cause hearing loss left ear noise exposure age related loss accounted presbycusis correction dr fagan assessed binaural hearing loss 17 9 equates 9 wpi noted dr fagan examine mr fitzgerald 18 oral evidence dr fagan disagreed proposition meniere disease impacted upon mr fitzgerald left ear apposed right agree dr tomich based view audiogram said opposite one would expect meniere disease come conclusion considered long history unprotected noise exposure consistently descending audiometric configuration three audiogram cross examination however dr fagan agreed audiogram plateau albeit different frequency dr fagan thought plateau appeared different place different audiogram inconsistent extent plateau small factor arriving conclusion loss lower frequency linked noise induced loss 19 posed question whether difference dr tomich matter clinical judgment cross examination examination dr fagan response assessed relevant factor became matter clinical judgment maintained opinion dr tomich error 20 submissionsms makris submitted dr tomich error taking account history detail mr fitzgerald significant noise exposure extended period time led dr tomich include loss lower frequency m makris referred example set chapter 9 iag many included loss lower frequency situation exposure noise long period time fact mr fitzgerald exposed noise capable causing noise induced hearing loss evident original determination 21 december 2020 accepting claim mr fitzgerald complained respondent provided objective evidence say noise exposure le dose likely cause noise induced loss respondent say onus mr fitzgerald establish error part assessor evidence concerning level noise exposure dose exposure severe considered dr fagan description 50 year exposure dangerous level noise mr fitzgerald made evidence exposure noise dangerous level 85 decibel dr fagan contended audiometry showed consistently descending audiometric configuration whilst agreeing plateau inconsistent noise induced hearing loss said justification disregarding plateau respondent complained evidence unconvincing respondent also pointed dr tomich evidence alternative reason loss lower frequency respondent described process undertaken dr tomich accordance weighing process dr fagan spoke dr tomich fact taken account intensity duration noise absence noise protection absence factor may caused loss family history shape audiogram simply dr tomich rated factor differently exercise clinical judgment dr fagan come different conclusion demonstrate error part dr tomich example iag respondent noted example lower frequency taken account situation explanation identified account loss apart noise induced hearing loss dr tomich identified meniere disease influencing noise induced hearing loss left ear considerationthe law question whether wpi assessment determinative well settled position succinctly described majority inpaschalis v return work corporation south australia another 21 court said tribunal may consider expert view determining approved assessor erred free disregard assessment made approved assessor unless error shown principle keeping one assessment concept one assessment ass degree permanent impairment arising injury 22 stated inabraham 23 worker employer apply tribunal test assessment notion competing medical evidence connection assessment permanent impairment eschewed protocol established iag alternative medical assessment tribunal rely upon take form assessment independent medical advisor 121 rtw act party alleging error establish error case mr fitzgerald question resolved measure mr fitzgerald hearing impairment caused exposure noise dr tomich accepted loss 2000 4000hz noise induced note para 9 5 iag requires assessor give detailed explanation using range outside frequency tends indicate whilst use lower frequency occur certain circumstance le usual confinement loss 2000 4000hz example contained chapter 9 iag include example lower frequency taken account taken account dr tomich report oral evidence gave explanation taken account loss lower frequency clear report 29 june 2022 oral evidence took account history noise exposure work provided mr fitzgerald also fact large part mr fitzgerald worn hearing protection mr fitzgerald evidence history noise exposure necessity subjective evidence measurement noise level mr fitzgerald exposed basis dr tomich entitled rely clinical experience understanding potential hazardous noise exposure working electrician domestic commercial described objective data iso 1999 guideline dr tomich thereforenotpersuaded noise exposure greater laeq eight hour 85 90db moreover dr tomich considering mr fitzgerald medical history meniere disease right ear well plateau observation audiometric pattern three audiogram led conclude alternative explanation account loss lower frequency dr tomich agreed appropriate circumstance loss lower frequency could taken account case seems dr tomich committed error considered relevant factor whether include loss lower frequency simply came different conclusion exercise clinical judgment dr fagan dr tomich say noise induced hearing loss rather loss lower frequency taken account loudness intensity need significant case mr fitzgerald 24 dr tomich contrasted mr fitzgerald occupation boilermaker relation type noise duration noise location worker relative noise 25 view error demonstrated determination compensating authority 9 december 2021 confirmed ordersthat determination respondent dated 9 december 2021 applicant eligible non economic loss lump sum payment pursuant 58 rtw act respect noise induced hearing loss tinnitus confirmed subject application contrary variation order within seven day applicant entitled recover cost incidental application accordance 106 1 rtw act quantum cost adjudicated default agreement 1 exhibit a1 2 exhibit a1 pp 40 41 better copy audiometry included evidence exhibit r1 contains arrow marking completed dr tomich handwritten calculation dr tomich set exhibit r1 excluded evidence 3 exhibit a1 p 49 4 south australian tribunal act 2014s 36 2 b c 5 south australian tribunal act 2014s 37 1 6 rule 4 1 7 exhibit a1 pp 40 41 8 exhibit a1 p 47 9 tr pp 41 42 10 tr p 45 18 11 tr pp 42 44 12 tr p 45 20 13 tr pp 45 46 14 tr pp 47 5 47 12 15 tr p 53 15 16 tr pp 58 59 17 tr pp 59 61 18 exhibit a1 pp 56 57 19 tr pp 32 34 20 tr pp 36 38 21 2021 sascfc 44at 159 22 see alsoabraham v return work sa 2016 saet 76 dallimore v return work sa 2017 saet 72 23 supra 24 tr p 59 25 tr pp 61 62
Wassell and Mecaenus (Child support) [2021] AATA 1760 (3 May 2021).txt	wassell mecaenus child support 2021 aata 1760 3 may 2021 last updated 16 june 2021wassell mecaenus child support 2021 aata 1760 3 may 2021 division social service child support divisionreview number 2021 mc020703applicant mr wassellother party child support registrarms mecaenustribunal member baulchdecision date 3 may 2021decision decision review affirmed catchwordschild support particular administrative assessment estimate income whether estimate refused discretion refuse estimate income year date income higher declared decision review affirmednames used published decision pseudonym reference appearing square bracket indicate information omitted decision replaced generic information identify involved individual required bysubsections 16 2ab 16 2ac thechild support registration collection act 1988 reason decisionbackgroundthechild support assessment act1989
Inghams Enterprises Pty Ltd re Inghams Enterprises - Processing and Distribution - South Australia Enterprise Agreement 2010 [2010] FWAA 6030 (3 August 2010).txt	inghams enterprise pty ltd inghams enterprise processing distribution south australia enterprise agreement 2010 2010 fwaa 6030 3 august 2010 fair work australiadecisionfair work act 2009s 185 approval enterprise agreementinghams enterprise pty ltd ag2010 1241 inghams enterprise processing distribution south australia enterprise agreement 2010poultry processingcommissioner steeladelaide 3 august 2010application approval inghams enterprise processing distribution south australia enterprise agreement 2010 1 application made approval enterprise agreement known inghams enterprise processing distribution south australia enterprise agreement 2010 agreement application made pursuant tos 185of thefair work act 2009 act agreement single enterprise agreement 2 satisfied requirement ofss 186 187and188as relevant application approval met 3 national union worker bargaining representative agreement given notice unders 183of act want agreement cover required bys 201 2 note agreement cover organisation 4 pursuant tos 190of act applicant provided additional documentation classification matrix within agreement relationship provision prevailing modern award poultry processing award 2010 accordance withs 201 3 act documentation shall appended part agreement relevance purpose 5 agreement approved accordance withs 54 1 operate 10 august 2010 nominal expiry date agreement 30 september 2012 commissionerprinted authority commonwealth government printerprice code g ae879806 pr500301
Applicant: Zafar Iqbal IRT Reference: N94_01577 #number 4511 [1994] IRTA 4511 (17 November 1994).txt	applicant zafar iqbal irt reference n94 01577 number 4511 1994 irta 4511 17 november 1994 zafar iqbaldecision john bordon presiding member arthur glass member delivered sydney 17 november 1994 bridging visa class e tribunal satisfied application substantive visa lodged applicant wife two step child brother australia would abide condition release security lodged sum 3 000migration regulation cl 050 213immigration review tribunalstatement decision reason decisionirt reference n94 01577 4511 docapplicant zafar iqbaltribunal john bordonpresiding memberarthur glassmemberdate 17 november 1994place sydneydecision tribunal set aside decision review refusing grant applicant bridging visa class e substitute decision grant applicant bridging visa class e subject condition set introductionthis review decision refusing grant bridging visa class e applicant zafar iqbal primary application made 27 october 1994 decision refusing application made 28 october 1994 delegate minister immigration ethnic affair application review given tribunal 31 october 1994 applicant immigration detention result decision refusing grant bridging visa tribunal therefore required make decision within 7 working day receipt application review backgroundthe applicant citizen pakistan arrived australia 31 march 1992 last entry permit held applicant ceased effect 15 september 1992 consequently unlawful non citizen applicant refused bridging visa class e review officer satisfied applicant would abide condition thought appropriate impose granting visa particular officer convinced mr iqbal would 1 work awaiting outcome application spouse visa 2 would advise department change address 3 would voluntarily leave australia spouse visa application proved unsuccessful legislationan applicant entitled grant visa themigration act 1958 act migration regulation regulation make valid application visa specified class satisfies criterion prescribed act regulation visa class applicant bridging visa must eligible non citizen meaning applicant must immigration cleared must come within certain class person set regulation see section 72 73 regulation 2 20 order application bridging visa class e valid must made way required item 1305 schedule 1 regulation see section 45 46 regulation 2 07 criterion grant bridging visa class e subclass 050 set part 050 schedule 2 regulation see section 31 3 regulation 2 03 applicant eligible grant visa subclass 051 see clause 051 211 copy relevant legislative provision set attachment applicant bridging visa class e subclass 050 must satisfy primary criterion set part 050 schedule 2 evidencein course review tribunal received written submission oral evidence applicant applicant wife shainaz iqbal applicant assistance adviser gregory mcdiarmid oral evidence summarised brief follows applicant arrived australia 31 march 1992 tourist visa expired 15 september 1992 applicant remained since australia illegally applied refused refugee status 1992 appeal concerning application rejected 21 june 1992 married shainaz buksh 2 july 1994 applied class 100 spouse visa fiji mail 31 august 1994 chief concern tribunal whether applicant would abide condition mind attach granting bridging visa particular work regular reporting department voluntary departure australia lost substantive application evidence oral file pointed two major area concern first mr iqbal conceded deceived department two occasion original application made false declaration married made use fake divorce document served interest represent single man e claim refugee status spouse application secondly applicant moved 50 acropolis road rooty hill ingham drive casula time unfavourable dors decision made mr iqbal asked length two matter claimed initial deception representation married came mistake form visitor visa prepared somebody else realised mistake glanced copy form lodged use fake divorce document obtained advice acquaintance university man mr iqbal move rooty hill casula june 1992 presented tribunal applicant mere coincidence addition mr iqbal claimed kept touch department indirectly told immigration adviser change address applicant evidence point seemed le credible however matter serious beardirectlyon granting visa stood applicant favour position quite different wife two step child aged 11 9 life 3 wyalong close wakeley nsw wife lived many year business woman mean owning two taxi plate rental property clearly position support family mr iqbal forbidden work give tribunal confidence work condition observed tribunal also satisfied applicant stay wyalong close wakeley spouse application heard likely stay reason think take marital obligation seriously present quite onerous wife well clearly mr iqbal interest stay put moved notify department breach condition bridging visa would seriously jeopardise pending application spouse visa mr iqbal questioned length would happen minister refused spouse application ultimately tribunal worrying aspect application considering lengthy response applicant wife point view likely would required depart australia voluntarily specific findingsthe applicant unlawful non citizen entered australia lawfully 1 september 1994 left australia therefore taken immigration cleared seeregulation 35of themigration reform transitional provision regulation applicant made valid application bridging visa class e 27 october 1994 satisfied basis evidence u applicant made valid application substantive visa application finally determined clause 050 213 requires satisfied applicant abide condition may imposed visa one granted list condition may imposed set attachment b set condition consider appropriate impose case coming conclusion regard whether applicant abide condition regard consideration set relevant departmental migration series instruction set conclusion evidence u regard consideration whether applicant identified satisfaction decision maker whether applicant co operated department dealing since lodging spouse visa co operated whether applicant previously removed deported whether applicant previously refused bridging visa whether applicant committed breach act regulation possibly charged convicted breach whether applicant breached condition previous bridging visa whether applicant previously absconded immigration detention custody likely abscond applicant conduct period immigration detention co operative strength applicant tie australian community wife two step child brother australia whether applicant visa cancelled substantive visa application refused australia application refugee status refused whether grant bridging visa applicant best interest community considered determined appropriate circumstance present case require security respect applicant compliance condition propose impose sum 3 000 bank guarantee respect sum provided relevant criterion satisfied propose set aside decision review refusing grant applicant bridging visa class e grant visa subject following conditions8101 holder must engage work australia 8201 australia holder must engage course leading completion primary secondary education program ii leading degree diploma trade certificate formal award b course language training program completion may unconditionally credited towards accepted prerequisite course study higher educational institution within outside australia c study training 3 month duration 8401 holder must report weekly office department parramatta business hour commencing first monday granting visa thereafter weekly day nominated department consultation department 8506 holder must notify immigration least 2 working day advance change holder address visa come effect immediately permit applicant remain australia minister decision respect substantive visa application grant visa grant visa ii minister decision respect application refuse grant visa 28 day holder notified refusal iii substantive visa application refused holder applies merit review refusal 28 day notification decision review authority b holder right apply another review authority merit review decision review authority applies 28 day notification decision review authority iv holder withdraws application substantive visa application review authority 28 day withdrawal v grant bridging visa holder respect substantive visa application decisionthe tribunal set aside decision review refusing grant applicant bridging visa class e substitute decision grant applicant bridging visa class e subject condition set john bordon arthur glasspresiding member memberattachment arelevant legislative provisionssubclass 050 bridging visa general 050 1 interpretation note compelling need work criminal detention defined regulation 1 03 eligible non citizen see regulation 2 20 interpretation provision specific part 050 2 primary criterion note applicant must satisfy primary criterion 050 21 criterion satisfied time application050 211 1 applicant unlawful non citizen b holder bridging e visa 2 applicant eligible non citizen kind set subregulation 2 20 7 8 9 10 11 050 212 1 applicant meet requirement subclause 2 3 4 5 6 7 8 2 applicant meet requirement subclause minister satisfied applicant making subject acceptable arrangement depart australia 3 applicant meet requirement subclause applicant made valid application substantive visa application finally determined b minister satisfied applicant apply within period allowed minister purpose substantive visa 4 applicant meet requirement subclause applied judicial review decision b applied merit review decision cancel visa ii refuse visa section 501 act deal refusal visa person good character etc c minister satisfied applicant make application kind referred paragraph b schedule 2 continuedpart 050 continued 5 applicant meet requirement subclause held visa cancelled subsection 140 1 3 act deal cancellation cancellation visa held another person b either person whose visa cancelled applied review decision cancel visa ii minister satisfied person make application kind 6 applicant meet requirement subclause subject request minister section 345 351 391 417 454 act deal minister power substitute favourable decision decision review authority decided 7 applicant meet requirement subclause criminal detention b sentenced imprisonment periodic detention actually served period imprisonment c criminal justice stay certificate criminal justice stay warrant non citizen force 8 applicant meet requirement subclause holder bridging visa class e subject condition 8101 minister satisfied applicant compelling need work 050 213 1 subject subclause 2 minister satisfied bridging visa granted applicant applicant abide condition imposed 2 subclause 1 apply applicant immigration detention b applied substantive visa application finally determined 050 214 security lodged applicant asked officer authorised section 269 act deal security compliance act 050 22 criterion met time decision050 221 applicant continues satisfy criterion set clause 050 211 050 214 schedule 2 continuedpart 050 continued050 222 1 unless subclause 2 applies applicant applicant interviewed officer authorised secretary purpose clause 2 subclause applies applicant immigration detention b made valid application substantive visa c hold held bridging visa class e since last held substantive visa seeking granted bridging visa class e subject condition apply bridging visa class e applicant currently hold last held note certain circumstance bridging visa class e may also taken granted without application non citizen immigration detention see act 73 addition minister may grant bridging visa class e non citizen criminal detention unwilling unable make valid application see r 2 25 050 3 secondary criterion nil note applicant must satisfy primary criterion 050 4 circumstance applicable grant050 411 applicant must australia immigration clearance note applicant must eligible non citizen time grant see act 73 050 5 visa effect050 511 case visa granted non citizen applied substantive visa bridging visa coming effect grant b permitting holder remain australia minister decision respect substantive visa application grant visa grant visa ii minister decision respect application refuse grant visa 28 day holder notified refusal iii substantive visa application refused holder applies merit review refusal 28 day notification decision schedule 2 continuedpart 050 continued review authority b holder right apply another review authority merit review decision review authority applies 28 day notification decision review authority iv holder withdraws application substantive visa application review authority 28 day withdrawal v grant bridging visa holder respect substantive visa application 050 512 case visa granted non citizen applied judicial review decision bridging visa coming effect grant b permitting holder remain australia another bridging visa granted holder respect judicial review application grant bridging visa ii 28 day judicial review proceeding including proceeding appeal completed iii holder withdraws application judicial review 28 day withdrawal 050 513 case visa granted non citizen applied merit review decision cancel visa visa coming effect grant permitting holder remain australia 28 day notification review decision b another bridging visa granted holder respect merit review application grant bridging visa c decision cancel substantive visa reversed reversal decision 050 514 case visa granted non citizen subsection 140 1 3 act deal cancellation result cancellation visa held another non citizen applies person whose visa cancelled applied review cancellation decision visa coming effect grant permitting holder remain australia 28 day notification review decision b another bridging visa granted holder respect merit review application grant bridging visa c decision cancel substantive visa reversed reversal decision schedule 2 continuedpart 050 continued050 515 1 case visa granted taken granted non citizen criminal detention visa coming effect grant ceasing non citizen unconditional release criminal detention b non citizen release bail c non citizen prison non citizen completing sentence imprisonment ii subject subclause 2 non citizen release parole iv non citizen escaping prison ca subject subclause 2 case non citizen subject order periodic detention completion period periodic detention imposed order signing deportation order non citizen e grant another visa holder f non citizen subject order periodic detention non citizen breaching condition order 2 subparagraph 1 c ii paragraph 1 ca apply case non citizen actually served part term imprisonment 050 516 case visa taken granted operation section 75 act deal application bridging visa minister decide within short period visa coming effect grant permitting applicant remain australia 5 working day date grant b within 5 working day grant holder show officer ticket departure australia 14 day date grant 050 517 case visa coming effect grant ceasing date specified minister purpose 050 6 conditions050 611 case visa granted non citizen applied substantive visa time form applied bridging visa b immigration detention c time made application referred paragraph held bridging visa class e condition 8101 8104 8201 8401 8402 8505 8506 apply bridging visa orschedule 2 continuedpart 050 continued unlawful non citizen held bridging visa class e since last held substantive visa condition 8402 condition 8101 8104 8201 8505 8506 applied bridging visa 050 612 case visa taken granted operation section 75 act condition 8101 8201 8402 8506 8509 050 613 case visa granted applicant meet requirement subclause 050 212 8 1 condition 8104 8201 8401 8403 8505 8506 8507 8508 8510 8511 8512 may imposed 050 614 case 1 condition 8101 8104 8201 8401 8403 8505 8506 8507 8508 8510 8511 8512 may imposed 050 7 way giving evidence050 711 evidence need given unless visa holder asks 050 712 evidence given given visa label attached passport attachment bconditions may imposed8101 holder must engage work australia 8104 holder must engage work 20 hour week holder australia 8201 australia holder must engage course leading completion primary secondary education program ii leading degree diploma trade certificate formal award b course language training program completion may unconditionally credited towards accepted prerequisite course study higher educational institution within outside australia c study training 3 month duration 8401 holder must report time time b place specified minister purpose 8403 holder must visit office immigration specified minister purpose within time specified minister purpose evidence visa placed holder passport 8505 holder must continue live address specified holder grant visa 8506 holder must notify immigration least 2 working day advance change holder address 8507 holder must within period specified minister purpose pay b make arrangement satisfactory minister pay cost within meaning division 10 ofpart 2of act holder detention 8508 holder must make valid application visa class granted australia within time specified minister purpose 8510 within time specified minister purpose holder must either show officer passport force b make arrangement satisfactory minister obtain passport 8511 within time specified minister purpose holder must show officer ticket travel country australia minister satisfied allow holder enter arrival 8512 holder must leave australia date specified minister purpose
DT v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION (No 2) [2022] SASCA 55 (14 June 2022).txt	dt v chief executive department child protection 2 2022 sasca 55 14 june 2022 last updated 16 june 2022supreme court south australia court appeal 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 dt v chief executive department child protection 2 2022 sasca 55judgment honourable president livesey ex tempore 14 june 2022courts judge judge disqualification interest bias generallythe applicant filed application order judge court appeal disqualify hearing determining appeal application leave appeal associated injunction concerning decision president hughes regarding decision made department child protection child vaccinated applicant contended fair minded lay observer might reasonably apprehend judge might bring impartial mind case reason including judge previously dismissed application brought applicant currently subject appeal listed injunction application two appeal judge personal interest proceeding vaccination status applicant daughter held livesey p dismissing application disqualify sitting 1 matter raised applicant give rise apprehension bias reason pre judgment otherwise supreme court act 1935 sa s 9b 19c uniform civil rule 2020 sa r 212 4 referred contract mining service pty ltd v adelaide brighton cement ltd 2020 sasc 69 dt v chief executive department child protection 2022 sasc 24 dt v chief executive department child protection 2022 sasca 28 ebner v official trustee bankruptcy 2000 hca 63 2000 205 clr 337 jrl ex parte cjl 1986 hca 39 1986 161 clr 342 352 considered dt v chief executive department child protection 2 2022 sasca 55court appeal civil applicationlivesey p introduction1 application dated 14 june 2022 made applicant seeking order recuse hearing determining appeal application leave appeal associated injunction concerning decision president hughes regarding decision made department child protection child vaccinated 2 neither necessary appropriate go detail honour decision challenge made applicant application disqualification3 applicant affidavit dated 14 june 2022 appears identify five matter said support application disqualification ground ostensible bias 4 first matter concern decision made dismissing application filed applicant february 2022 theparens patriaejurisdiction seeking order child vaccinated 8 march 2022 declined make order theparens patriaejurisdiction supreme court prevent applicant daughter vaccinated covid 19 statutory review process available applicant south australian civil administrative tribunal applicant failed identify reasonable basis prosecuting making application court 5 applicant say appealed decision 6 second matter applicant made repeated request ruling concerning march decision decision supplied received various letter applicant requesting ruling made 8 march 2022 3 25pm 3 51pm 22 march 2022 3 31pm released understand letter also sent chief justice 7 applicant concern incorrect inaccurate associate deputy registrar explained applicant ruling settled published judgment provided applicant available courtsa portal published online judgment aredt v chief executive department child protection 2022 sasc 24anddt v chief executive department child protection 2022 sasca 28 insofar ruled admissibility video reason separately given 8 third matter applicant complains previously indicated action civ 21 14130 listed direction hearing instead without prior notice applicant matter called court appeal 22 march 2022 2 15 pm determination appeal 9 view occurred incorrect 18 february 2022 applicant matter called told applicant going list application permission appeal department application effectively dismiss hearing afternoon 22 march 2 15 correspondence exchanged chamber applicant hearing proceeded 22 march 2022 10 fourth matter case allocated single judge registry even though application injunction connected appeal must heard court appeal ascertained made arrangement matter heard court appeal applicant say listed matter another judge personal interest applicant proceeding vaccination status applicant daughter assure applicant interest 11 february matter allocated dealt merit appeal decision addressed merit 12 listing appeal injunction afternoon president court appeal responsible subject chief justice direction administration court appeal see 9bof thesupreme court act1935
Blokker (Migration) [2018] AATA 5557 (10 October 2018).txt	blokker migration 2018 aata 5557 10 october 2018 last updated 9 may 2019blokker migration 2018 aata 5557 10 october 2018 decision recorddivision migration refugee divisionapplicant dr vincent blokkercase number 1726493dibp reference bcc2017 1812493member amanda mendes da costadate 10october 2018place decision melbournedecision tribunal remit application distinguished talent residence class bx visa reconsideration direction applicant meet following criterion cl 858 212 schedule 2 regulation statement made 10 october 2018 12 58pmcatchwordsmigration distinguished talent residence class bx visa subclass 858 internationally recognised record exceptional outstanding achievement academia research maritime security definition exceptional early career researcher significant achievement asset australian community decision review remittedlegislationmigration act 1958 65migration regulation 1994 schedule 2 cl 805 212 858 212casesgaffar v minister immigration multicultural affair 2000 fca 293hatcher v cohn 2004 fca 1548 2004 139 fcr 425statement decision reasonsapplication reviewthis application review decision made delegate minister immigration 11 october 2017 refuse grant visa applicant distinguished talent residence class bx subclass 858 visa unders 65of themigration act 1958 act visa applicant applied visa 19 may 2017 delegate refused grant visa basis applicant meet cl 858 212 2 schedule 2 themigration regulation 1994 regulation theapplicant appeared tribunal 28 august 2018 give evidence present argument following reason tribunal concluded matter remitted reconsideration consideration claim evidencethe issue present case whether applicant meet criterion cl 858 212 1 requires applicant meet provision subclause 2 4 subclause 2 set following requirement applicant internationally recognised record exceptional outstanding achievement one following area profession ii sport iii art iv academia research b still prominent area c would asset australian community would difficulty obtaining employment becoming established independently australia area e produce completed approval form 1000 andnote approved form 1000 requires applicant record achievement area mentioned paragraph attested australian citizen b australian permanent resident c eligible new zealand citizen australian organisation national reputation relation area f applicant turned 18 least 55 year old time application would exceptional benefit australian community applicant made claim relation cl 858 212 4 tribunal note determining whether applicant meet cl 858 212 2 stated subclauses must met paragraph 858 212 2 requires applicant internationally recognised record exceptional outstanding achievement profession sport art academia research applicant claim internationally recognised record exceptional outstanding achievement field academia research particularly relation subject maritime security result tribunal find applicant claim come within cl 858 212 2 tribunal note concept internationally recognised record exceptional outstanding achievement cl 858 212 2 defined regulation context tribunal regard relevant dictionary meaning case law applicable cl 858 212 2 according macquarie dictionary online word exceptional defined mean 1 forming exception unusual instance unusual extraordinary 2 extraordinarily good performance product 3 extraordinarily skilled talented clever also defines word outstanding mean 1 prominent conspicuous striking 2 continues existence remains unsettled unpaid etc 3 standing projecting detached 4 resists opposes tribunal note court held determining whether applicant exceptional record achievement criterion requires demonstrated excellence relevant occupation ordinary notably ingaffar v minister immigration multicultural affair 2000 fca 293 gaffar scase 20 french j observed concept exceptional record achievement require applicant national living treasure tribunal also observes however ingaffar scase court dealing wording cl 805 212 6 required applicant case demonstrate exceptional record achievement relation nominated occupation profession activity wording cl 858 212 2 requires applicant tribunal internationally recognised record exceptional outstanding achievement thereforegaffar scase limited application current context tribunal acknowledges however applicant need national living treasure circumstance meet requirement vary across different profession activity french j observed require far greater level knowledge skill applicant rise ordinary merely competent tribunal also regard consideration meaning exceptional inhatcher v cohn 2004 fca 1548 2004 139 fcr 425 considers apposite tribunal note comment kiefel j 49 50 exceptional circumstance general term circumstance unusual ordinary term also one may wide operation factor affecting person set apart person comparable situation may amount exceptional circumstance word exceptional circumstance may apply variety circumstance definition limit application adopted unless limitation appears relevant statutory provision context application tribunal considers statutory context operate limit qualify otherwise wide operation word insofar cl 858 212 2 requires applicant establish record achievement exceptional also outstanding addition internationally recognised tribunal note presently specific court authority meaning interpretation phrase internationally recognised record exceptional outstanding achievement tribunal note departmental guideline procedure advice manual 3 pam 3 state inter alia following applicant eminent top echelon field demonstrate extraordinary remarkable ability superior others field claim excellent level performance job particularly benefit performance may realised locally would regarded exceptional outstanding achievement single achievement applicant particularly appears significant achievement would regarded record exceptional outstanding achievement anticipated applicant would record sustained achievement unlikely diminish future achievement may attract national acclaim would considered internationally recognised unless achievement field practised country including australia would attract similar acclaim country applicant would expected achievement remarkable relation field relation participant field applicant top field tribunal may regard pam3 considering whether applicant achievement amount exceptional outstanding achievement one prescribed area mindful treat departmental policy determinative must bring consideration back term legislation noted order meet relevant criterion applicant must internationally recognised record exceptional outstanding achievement field time application documentation provided tribunalthe tribunal note provided following documentation written submission prepared applicant dated 18 august 2018 payment order maastricht university dated 16 september 2015 governance letter grading form maastricht university dated 4 september 2015 email applicant dr mitchell belfer dated 2 september 2015 applicant note prepared aid memoire hearing reference letter dr karin von strokirch dated 24 august 2018 reference letter dr tony lynch dated 25 august 2018 reference letter professor helen ware dated 28 august 2018 tribunal also considered following documentation regarding applicant achievement provided department reference letter applicant professor annabelle duncan dated 25 february 2015 examiner comment mr jim bose regarding applicant phd thesis applicant statement dated 19 may 2017 form 1000 nomination form signed dr karin von strokirch dated 18 may 2017 reference mr berty nayna international maritime organization dated 19 june 2015 statement dr tony lynch dated 31 june 2017 academic transcript applicant university new england newspaper article published inthe armidale express dated 22 april 2018 summary applicant evidencethe applicant born netherlands completed secondary school study 1999 visited australia exchange student undertaking secondary school study coffs harbour nsw 2009 applicant returned australia completed bachelor art degree major politics international study 2011 master degree specialising international study 2012 university new england une subsequently completed graduate certificate human resource management 2013 completing phd study maritime security une april 2017 topic thesis role non state actor maritime security whilst undertaking study une applicant occupied position senior resident fellow academic co ordinator two university hall residence role applicant responsible raising academic profile hall residence mentoring student co ordinating activity academic mentor applicant spent five year role recognition service une awarded applicant new england award two occasion graduated master degree second phd conferred tribunal note new england award presented student university involved social community activity contribute local community university 2014 applicant employed casual academic une giving tutorial lecture field international relation political science reading marking examination paper contributing university online education platform tutor facilitator discussion forum student 2015 whilst undertaking doctoral study applicant spent approximately one month visiting researcher international maritime organization imo london tribunal note imo specialised agency united nation authority safety security environmental performance international shipping main role create maintain regulatory framework shipping industry covering ship design construction equipment manning operation disposal applicant position imo funded scholarship awarded fund research participation conference one two scholarship awarded applicant recognition high academic achievement research capability 2015 applicant invited join euro gulf information centre associate honorary position applicant continues hold tribunal note centre non government organisation aim build social political cultural economic bridge community europe arabian gulf state position imo applicant approached early 2015 supervise master degree student maastricht university netherlands co examiner thesis topic student thesis also addressed issue maritime security given applicant expertise area chosen supervisor co examiner despite fact yet complete doctoral study applicant also author article titled somali counter piracy operation blueprint southeast asia published thecentral european journal international security studiesin 2013 authored second article published thesocial alternativesjournal 2016 tribunal note applicant currently co authoring chapter book examining senator pauline hanson approach irregular migration effect australian public policy noted delegate decision applicant presented paper university forum topic european union irregular maritime migration outsourcing maritime security non state actor activity somali pirate since completing doctoral study applicant attempted obtain employment government non government organisation field maritime security difficult given applicant permanent resident australia continuing research write topic meanwhile employed private educational organisation form 1000 materialdr karin von strokirch senior lecturer international relation co ordinator bachelor international study school humanity une statement attached form 1000 attests follows present little research indeed researcher within australia global context focus security issue analysis role non state actor alone make dr blokker expertise exceptional international importance commencing phd dr blokker undertook two research project part postgraduate work one research project somali piracy subsequently published prestigious international journal reflects well originality quality dr blokker research well writing skill resulting publication invited fellow euro gulf information centre rome based research initiative aim build social political strategic cultural economic bridge people europe arabian gulf doctoral candidature dr blokker undertook research attachment un international maritime organisation london met agency staff executive maritime representative organisation diplomat attachment calibre highly competitive demonstrates international recognition dr blokker research achievement finding resulting attachment subsequently presented australian political study association conference attracts national international expert final stage phd candidature dr blokker submitted journal article commended anonymous peer reviewer published minor correction remarkable feat well established academic let alone doctoral student similarly dr blokker final thesis well received two examiner long standing expertise international relation maritime security supporting evidenceprofessor duncan vice chancellor ceo une reference dated 25 february 2015 opines applicant doctoral research security asia pacific region immense immediate importance comment applicant phd thesis mr bose describes fine thesis well written clearly structured opines follows primary aim present examine role contribution non state actor shaping perception action pertaining maritime security exemplary expertise provides comprehensive treatment topic make original substantial contribution field professor helen ware foundation professor peace study une letter dated 28 august 2018 state many academic field achievement distinguished record part significantly dependent upon length time academic working field case however field expertise relatively new area non state actor maritime security quality far important quantity date exceptionally vital aspect expertise recently graduated phd candidate dr blokker phd first class quality maintained minute expertise area somali piracy one else australia could match tribunal note former australian high commissioner ambassador professor ware cognisant department foreign affair trade need current expert advice regarding maritime security issue around world individual network keep date event high sea method public covert country using deal challenge professor ware opines dr blokker necessary access european maritime security network make expertise great value australia dr tony lynch senior lecturer philosophy religion politics international relation school humanity une letter dated 25 august 2018 opines dr blokker early career researcher time early career researcher already making impressive mark chosen field interest maritime security vincent obtained phd 2007 two article published peer reviewed journal already stage career better time career around 50 essay world class peer reviewed essay two book third next month dozen book chapter among publication vincent ability already seen invited fellow euro gulf information centre signal honour early stage career view experience already exceptional record achievement addition form 1000 nomination applicant dr karin von strokirch also provided reference letter dated 24 august 2018 document dr von strokirch opines vincent indeed early career researcher produced excellent original research significance national interest phd candidature much published refereed journal case emphasis squarely quality rather quantity due early stage career vincent set contribute cutting edge research another three decade unlike someone long publication list cusp retirement dutch national abiding knowledge interest europe vincent demonstrates world class expertise european union policy towards non state actor maritime security turn compared european australian policy domain refereed journal article offered great insight refinement australia strategy indeed research area valuable currently engaged collaborative research vincent topic applicant submissionsthe applicant referred group eight discussion paper changing phd published march 2013 argued paper show research conducted group eight australian university defines phd australian qualification framework level 10 qualification highest level available additionally paper note anyone achieving qualification demonstrated ability understand use specific specialised knowledge requiring highest intellectual capability also demonstrated ability go beyond already known create new knowledge new way thinking potentially new way mankind applicant submitted phd australian university demonstrated exceptional outstanding achievement commensurate highest intellectual capability applicant submitted also significant highly specialised expert particular field academia research maritime security argued expert area maritime security australia even fewer phd qualification globally specialist area maritime security applicant applicant referred delegate comment disparity length breadth research comparatively applicant academic applicant submitted authorship two journal article prior visa application compare favourably scholar age experience particularly article published respected journal prior completing doctoral study applicant argued research attachment imo supervisory role maastricht university reflective significance research global scale international reputation applicant referred delegate application department procedure advice manual pam3 decision applicant argued delegate erred application pam3 interpreting requirement cl 858 212 applied applicant applicant submitted delegate finding applicant eminent top echelon field extraordinary remarkable ability considered superior peer appears raise required standard much higher literal understanding cl 858 212 2 applicant submitted delegate erred giving broad definition term field encompassing academic researcher rather area maritime security applicant argued well positioned within top echelon area maritime security applicant stated although word exceptional outstanding require qualification delegate erred comparing achievement nominator academic similar age experience applicant suggested delegate also erred failing take consideration substantial length time required publish journal article given age impossible rival output older academic submitted applicant delegate interpretation peer unduly wide argued dictionary understanding word one equal standing another one belonging societal group especially based age grade status would fairer compare achievement academic similar age grade experience applicant contended internationally recognised record exceptional outstanding achievement could measured quantitative examination journal article also taking consideration qualitative nature work finally applicant submitted demonstrated internationally recognised record exceptional outstanding achievement primary reason applying distinguished talent visa desire continue contributing research policy practice would enhance australia international standing issue relation maritime security clause 858 212 2 requires applicant internationally recognised record exceptional outstanding achievement one five area case dr blokker claim record area academia research tribunal find although dr blokker career early stage subclause 2 require applicant active area particular length time achievement considered exceptional outstanding tribunal satisfied although dr blokker career lengthy nominator referee yet become national living treasure career already unusual ordinary internationally recognised context tribunal attache significant weight applicant research position prestigious specialised agency united nation tribunal note applicant phd thesis described original exceptional quality dr von strokirch first class professor ware topic particular significance benefit australia maritime security applicant also co authored two article peer reviewed journal subject relevant area expertise currently process co authoring third article others including dr von strokirch tribunal satisfied dr blokker research attachment imo supervisory role maastricht university reflective significance research field international reputation accordingly tribunal find cl 858 212 2 met clause 858 212 2 b requires applicant still prominent area prominent defined regulation however departmental policy provides prominent accorded ordinary dictionary meaning within context appropriate synonym conspicuous important essential integrity distinguished talent program successful applicant assessed past performance require current prominence area basis ordinary dictionary meaning term prominent defined macquarie dictionary online standing easily seen conspicuous noticeable prominent feature standing beyond adjacent surface line projecting important leading well known prominent citizen tribunal satisfied time application made applicant still prominent area completed first class phd thesis maritime security two article published previously described visiting researcher imo supervised master degree student writing writing thesis non state actor maritime security accordingly tribunal find cl 858 212 2 b met clause 858 212 2 c requires applicant would asset australian community tribunal accepts given australia position island nation maritime security critical australia economic social prosperity tribunal accepts relatively academic specialise area turn affect number professional engaged public policy development publishing material regarding maritime security tribunal considers maritime security relevant australia shipping illegal fishery industry bio security consideration immigration accordingly tribunal find applicant qualification experience interest area maritime security demonstrate would asset australian community accordingly cl 858 212 2 c met clause 858 212 2 requires applicant would difficulty obtaining employment becoming established independently australia area tribunal accepts dr blokker currently experiencing difficulty obtaining full time employment chosen field result uncertain migration status tribunal acknowledges position suitable applicant particularly government unlikely given applicant without permanent visa however tribunal satisfied visa application granted dr blokker would difficulty obtaining employment becoming established independently australia area accordingly tribunal find cl 858 212 2 met clause 858 212 2 e requires prescribed form signed completed eligible nominator attests applicant record achievement lodged time application two completed form 1000 lodged applicant first signed dr karin von strokirch dated 18 may 2017 dr von strokirch 20 year experience academic une teaching several subject field international relation undergraduate graduate student publication include co editing book authoring several book chapter approximately 30 journal article international politics global security presented paper academic forum australia overseas acted peer reviewer publication involved international political study dr von strokirch also provided medium commentary foreign policy international relation abc radio given academic history achievement tribunal satisfied national reputation field academia research accordingly find cl 858 212 2 e met second form 1000 signed dr tony lynch dated 31 june 2017 given document meet time application requirement cl 858 212 2 e date clearly incorrect tribunal treated nomination form purpose visa application however tribunal taken consideration comment made dr lynch document applicant achievement tribunal satisfied given applicant age time application 34 year provision cl 858 212 2 f apply conclusionas applicant meet applicable requirement cl 858 212 2 tribunal find applicant meet requirement cl 858 212 1 accordingly meet cl 858 212 whole given finding appropriate course remit application visa department consider remaining criterion subclass 858 visa applicant found meet remaining criterion entitled grant subclass 858 visa decisionthe tribunal remit application distinguished talent residence class bx visa reconsideration direction applicant meet following criterion cl 858 212 schedule 2 regulation amanda mendes da costamember
ANL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 306 (15 March 2021).txt	anl19 v minister immigration citizenship migrant service multicultural affair 2021 fcca 306 15 march 2021 last updated 15 march 2021federal circuit court australiaanl19 v minister immigration citizenship migrant service multicultural affair 2021 fcca 306file number syg 295 2019judgment judge driverdate judgment 15 march 2021catchwords migration review administrative appeal tribunal decision refusal protection visa applicant claiming fear harm fiji applicant believed whether tribunal failed properly consider relevant material considered jurisdictional error legislation migration act 1958 cth s 36 438cases cited minister immigration citizenship v sziai 2009 hca 39 2009 111 ald 15number paragraph 30date hearing 22 february 2021place sydneysolicitors applicant mr r chaudhry chaudhry legalsolicitors respondent m p durham sparke helmoreorderssyg 295 2019between anl19applicantand minister immigration citizenship migrant service multicultural affairsfirst respondentadministrative appeal tribunalsecond respondentorder made judge driverdate order 15 march 2021the court order application amended 8 april 2019 dismissed reason judgmentjudge driver introduction backgroundthe applicant seek judicial review decision administrative appeal tribunal tribunal made 21 january 2019 tribunal affirmed decision delegate minister delegate grant applicant protection visa following statement background fact derived submission party applicant citizen fiji arrived australia 7 october 2015 holder visitor visa 1 20 november 2015 applicant lodged application visa 2 4 march 2016 delegate refused grant applicant visa 3 9 march 2016 applicant applied tribunal review delegate decision 4 7 january 2019 applicant appeared tribunal give evidence present argument 5 applicant former military colleague also gave evidence hearing 21 january 2019 tribunal affirmed delegate decision 6 applicant claimsthe applicant claim protection set visa application written statement delegate summarised follows 7 applicant member fijian military army 2014 whilst working un peacekeeper syria one 45 people captured isi operative held captive 15 day b release required write statement kidnapping statement 8 instructed military commander superior authority change statement refused c applicant believed superior asked change statement want look weak could impact army reputation jeopardise opportunity future un peacekeeping mission upon return service terminated changed statement e army corrupt mistreat personnel feared physical harm persecution army due refusal change statement f received verbal threat disclosed anything would caught harmed disloyalty army g house broken twice believed linked army h since arrival australia police army personnel visited house seven time looking written statement tribunal applicant claimed 9 point statement army wanted change concerned pointing loaded weapon tortured captive paid compensation owed b dishonourably discharged army c family received death threat told surveillance oral evidence tribunal applicant claimed aspect statement army wanted change related beheading captive surrender arm mention gun pointed head 10 tribunal decisionthe tribunal identified two non disclosure certificate issued pursuant tos 438of themigration act 1958 cth migration act tribunal identified copy certificate provided applicant tribunal found first certificate valid reason provided non disclosure provide sufficient basis public interest immunity however tribunal found document covered relevant review put weight 11 tribunal found second certificate valid information covered given confidence tribunal put substance information applicant comment regard applicant response allegation 12 relation applicant claim tribunal accepted member army part fijian peacekeeping force syria captured syrian force golan height 2014 released 15 day 13 tribunal observed applicant claim stemmed statement 14 tribunal perplexed applicant superior could fault statement conclude embarrassing army 15 tribunal could find reference statement beheading captive surrendering arm mention gun pointed applicant head fact compensation paid soldier applicant claimed hearing told amend 16 accordingly tribunal found applicant claim requested make change statement avoid embarrassment army made sense whatsoever 17 tribunal accept applicant claim requested superior make change statement 18 tribunal considered inconsistency relation applicant claim came possession statement hearing claimed given copy statement army submitted hard copy whereas statutory declaration provided delegate applicant claimed managed gain access computer operated clerk locate statement printed copy 19 tribunal found tended show applicant prone exaggerating recount event would fabricate claim advance cause accordingly tribunal found applicant fabricated claim superior ordered change statement would embarrassed army 20 turning applicant claim dishonourably discharged army tribunal considered letter termination provided applicant consistent finding applicant appointed peacekeeping duty one year upon expiry year posted territorial force still member 21 tribunal considered applicant claim made hearing discharge letter given return syria unable produce lost 22 tribunal considered applicant explanation inconsistent representative submission mention second letter far fetched fanciful completely implausible appeared made applicant went along 23 based fact applicant able produce number document review process except second discharge letter tribunal found second discharge letter applicant dishonourably discharged army 24 based finding applicant ordered amend statement dishonourably discharged tribunal found applicant would threatened abused superior insubordination fear serious harm fiji 25 accordingly tribunal satisfied 135 140 applicant person australia owed protection obligation unders 36 2 themigration act tribunal satisfied 136 139 141 applicant owed complementary protection unders 36 2 aa current proceedingsthese proceeding began show cause application filed 14 february 2019 applicant relies upon amended application filed 8 april 2019 six ground application ground 6 pressed ground 1 5 ground 1the tribunal committed erred failed properly consider relevant evidence respect applicant role refusing prepare submit favourable report fijian military soldier syria 2014 al qaeda force directed superior refusal led subjected threat intimidation discrimination fijian military ground 2the tribunal erred failed properly consider applicant political opinion respect capture fijian soldier syria 2014 al qaeda force voicing opinion led subjected threat intimidation discrimination fijian military ground 3the tribunal erred failed properly take account demotion applicant territorial force regular force account political opinion precluded tour duty account political opinion different fijian military bainimarama regime material time ground 4the tribunal erred failed take account relevant consideration respect freedom expression concerned public opposed disciplined force subject order superior matter ground 5the tribunal erred adequately consider traumatic effect applicant capture along fijian soldier effect mentally psychologically consequential ramification applicant evidence tribunal hearing error original addition court book filed 25 march 2019 evidence two affidavit read behalf minister affidavit kirby alexandra dunlop made 8 may 2019 concern notification made delegate minister relating document reproduced court book annexed affidavit communication minister department tribunal concerning certain document also annexed including confidential annexure affidavit todd kliendienst made 20 may 2019 concern matter minister claim public interest immunity relation document confidential annexure m dunlop affidavit received affidavit annexures subject relevance event relevance apparent although document concern matter raised tribunal decision matter put issue applicant found necessary consider document confidential annexure applicant minister filed pre hearing written submission made oral submission representative trial 22 february 2021 considerationthe applicant submission develop uncontroversial legal principle application principle fact case applicant argument struggle rise contest merit tribunal decision doubt applicant experienced traumatic event syria fijian soldier taken captive possible applicant exhibited symptom ptsd 26 return unable settle fiji following return also possible harbour grievance treatment return question however establish jurisdictional error part tribunal minister submission comprehensively address ground pressed applicant agree submission adopt ground 1 applicant contends tribunal failed properly consider happening ground fiji rejected applicant claim ordered change statement applicant identifies various matter army election held 17 september 2014 say tribunal failed consider claim relation election misconceived statement drafted october 2014 event tribunal consider country information 85 91 27 decision fijian political climate 2014 including general election held tribunal also considered detail applicant claim statement changed would cause embarrassment army submission delegate applicant representative contended statement would embarrassing army contradicted government official line captive well treated support contention submission referred country information importance revenue peacekeeping mission army fijian government 28 however written submission specifically identify part statement applicant asked remove tribunal identified written submission provided applicant 24 decision 29 clear tribunal decision difficulty accepting anything statement would considered embarrassing army 30 tribunal recorded hearing put applicant statement appeared quite benign asked identify part superior concerned applicant responded superior concerned evidence relating beheading captive surrendering arm mention gun pointed head 31 tribunal found matter appear statement applicant able identify part statement army would find embarrassing open tribunal conclude applicant claim made sense whatsoever reject assertion requested superior change 32 rejected factual basis claimed harm tribunal obligation consider make finding state affair army time applicant contends tribunal duty inquire applicant reason leaving fiji issue raised amended application minister opposed leave granted applicant rely ground nevertheless considered applicant reason leaving fiji critical fact existence easily ascertainable 33 identified tribunal 101 applicant responsibility provide sufficient evidence satisfy tribunal claim tribunal required make applicant case applicant already provided evidence tribunal left fiji feared harm army government 34 contrary applicant submission conceivable explanation applicant may departed fiji month returning syria reason conclude tribunal asked applicant left fiji soon returning response would different claim already made would overcome tribunal adverse credibility finding ground 2 4 applicant contends tribunal failed properly consider applicant would face harm expressing political opinion demoted political opinion army subject different condition public came freedom expression discussed tribunal provided logical basis concluding applicant never asked amend statement tribunal accept anything statement could considered embarrassing follows tribunal accept statement expressed political opinion would attract adverse attention army fijian government tribunal accept applicant threatened reason would otherwise face harm basis 35 given tribunal rejected applicant claim entirety required consider issue identified ground substance ground seek impermissible merit review ground5 contends tribunal failed consider traumatic event applicant encountered would affect ability give evidence tribunal recognised must take care making credibility finding give applicant benefit doubt unless good reason contrary 36 however still required tribunal consider whether applicant statement coherent plausible contrary generally known fact tribunal credibility finding went beyond considering inconsistency applicant evidence find premise applicant claim made sense whatsoever completely implausible supported documentary evidence provided applicant 37 light tribunal comprehensive credibility finding allegation tribunal failed properly take account difficulty applicant may giving evidence cannot sustained conclusionthe applicant failed establish decision tribunal affected jurisdictional error decision therefore privative clause decision application must dismissed order hear party cost certify preceding thirty 30 numbered paragraph true copy reason judgment judge driver associate dated 15 march 2021 1 court book cb 13 20 2 cb 2 38 3 cb 506 516 4 cb 517 518 5 cb 573 576 6 cb 581 602 7 cb 78 86 8 cb 107 109 9 cb 560 562 10 cb 587 57 11 cb 585 586 32 36 12 cb 586 37 43 13 cb 593 105 107 14 cb 593 109 15 cb 595 111 16 cb 596 112 17 cb 596 114 18 cb 596 115 19 cb 596 116 20 cb 596 117 118 21 cb 597 121 22 cb 597 123 126 23 cb 597 126 127 24 cb 597 128 129 25 cb 598 130 133 26 post traumatic stress disorder 27 cb 590 591 28 cb 490 29 cb 584 585 30 cb 595 111 31 cb 587 57 60 32 cb 596 114 115 33 minister immigration citizenship v sziai 2009 hca 39 2009 111 ald 15at 25 34 cb 31 35 cb 598 130 133 36 cb 593 103 104 37 cb 596 597 112 114 127 129
Marinelli v TAC [2011] VCC 1183 (11 May 2011).txt	county court victoria 250 william street melbourne undefined bookmark county court victoria revised restricted melbourne civil division case ci 10 03560 jamie marinelli plaintiff v transport accident commission defendant judge honour judge k l bourke held melbourne date hearing 7 8 april 2011 date judgment 11 may 2011 revised case may cited marinelli v tac medium neutral citation 2011 vcc 1183 reason judgment catchword transport accident act 1986 section 93 impairment left shoulder impairment spine appearance counsel solicitor plaintiff mr c harrison sc mr ryan nowicki carbone defendant mr blanden sc dr r mcneil solicitor transport accident commission honour 1 application brought origi nating motion plaintiff applies leave pursuant 94 4 transport accident act 1986 act bring proceeding recover damage injury suffered arising transport accident occurred 6 september 2007 said date 2 section 94 6 act provides court must give leave sub section 4 unless satisfied injury serious injury 3 definition serious injury relied upon plaintiff 93 17 serious long term im pairment loss body function 4 body function ultimately relied upon plaintiff application spine left shoulder claim relation psychiatric impairment abandoned closing submission 5 enquiry subparagraph definition focus attention first upon whether injury produced organic impairment loss body function reference consequence impairment determine whether serious long term 6 serious injury defined subpar agraph seriousness measured part mental response physical impairment recognise ental disorder constitute producer impairment body function see richards v wylie 2000 1 vr 79 7 forming judgment whether consequence injury serious question asked injury judged comparison case r ange possible impai rments fairly vcc aa lp 1 judgment marinelli v tac described least consider able significant marked see humphries v poljak 1992 2 vr 129 140 1 8 plaintiff relied two affidavit gave viva voce evidence cross examined addition parti e relied medical report material tendered evidenc e read tendered material plaintiff evidence background 9 plaintiff presently aged forty f born 1 july 1966 melbourne italian descent remained melbourne aged twelve returned italy educated age nineteen joined military befor e returning victoria 1987 10 plaintiff married 1993 two daughter ol dest fifteen youngest aged ten 11 plaintiff self trained chef ade living buying selling café food business income supplemented various time recent year newstart payment 12 2004 plaintiff brother law purchased worker café preston operated joint venture sold 2006 13 march 2007 plaintiff employ ed chef part time basis k queen road kitchen lbourne worked thr ee hour day five day week lunchtime earning 700 net per fortnight plaintiff ultimately intended purchase business pre accident health 14 plaintiff deposed prior sa id date visited doctor relation minor incident depression also suffered minor reflux vcc aa lp 2 judgment marinelli v tac problem however condition substantially resolved prior said date 15 cross examination plaintiff agreed said date feeling bit everyday living general practitioner suggested try anti depressant pl aintiff disagreed fact depressed time take anti depre ssants prescribed problem refl ux also felt need medication 16 plaintiff agreed certified unfit work general practitioner dr zaky 23 november 2004 23 august 2005 depression also agreed dr zaky certified unfit work seven month january 2006 gout 17 plaintiff agreed little reference affidavit depression said date reference time work 18 plaintiff cross examined work history accident plaintiff agreed prior accident extensive period unemployed 19 plaintiff agreed following summary earnings shown taxation return summary plaintiff earnings financial year earnings source taxable income 2001 2002 2 492 00 7 907 00 business loan ds 5 415 00 2002 2003 4 861 00 10 567 00 newstart income 15 428 00 2003 2004 7 852 00 newstart 7 852 00 2004 2005 5 647 00 2 857 00 ds income 10 058 vcc aa lp 3 judgment marinelli v tac financial year earnings source taxable income 2005 2006 return 2006 2007 7 254 00 1 200 00 newstart income 19 202 00 2007 2008 7 537 00 5 100 00 newstart income 8 310 00 2008 2009 9 355 00 5 100 00 newstart income 8 310 00 accident 20 said date plaintiff ri ding suzuki motor scooter motor vehicle executed u turn front causing come scooter accident 21 result accident plai ntiff became airborne landed heavily road left side particularl left shoulder side head felt sharp pain lower back left shoulder 22 police ambulance service attended accident scene receiving treatment plaintiff taken ambulance royal melbourne hospital hospital seen emergency department hospit al admitted observation various examination carried pl aintiff remained hospital several hour disc harged later day 23 plaintiff deposed result accident suffered injury nose spine shoulder teeth ear sult consequence injury also develo ped anxiety sleepi ng disturbance aggravation reflux headache migrai ne mood swing weight gain 24 plaintiff eager return wo rk accident however upon returning work light duty headache pain mouth vcc aa lp 4 judgment marinelli v tac week pain left shoul der left side neck head lower back worsened point excruciating started affect work 25 10 october 2007 plaintiff att ended dr smith st mary medical clinic prescribed painkilling medication gave plaintiff certificate two week work 26 12 october 2007 plaintiff went thailand two week holiday booked three wee k accident time rested wife child 27 plaintiff returned work owner business tolerant plaintiff injury ld business new owner lenient term plaintiff restriction 28 plaintiff role chef manager business required foot long period also li ft manipulate various item kitchen required mobility free use back shoulder performing pre accident level activity extremely painful required task often quite heavy placed stress back neck shoulder aggravating pai n severely would need take break 29 plaintiff ceased work k queen road kitchen october 2008 longer physically capable wo rking accident injury 30 leaving k queen road kitchen plaintiff unemployed four five month taking intensive rehabilitat ion regime cope pain 31 plaintiff deposed however ac tive person decided try work purchased café st al ban market january 2009 vcc aa lp 5 judgment marinelli v tac 50 000 including set cost plaint iff put entire saving 15 000 20 000 proceeds sale preston café purchase borrowed rest purchase price brother 32 business essentially coffee sandwich shop plaintiff operated wife tw half day per week food preparation wednesday 33 2009 plaintiff earned approxim ately 400 net per week café however earning capacity wa greatly inhibited injury pain greatly reduced efficiency eventually proved great obstacle continue working despite hi best effort plaintiff pain proved great sell business loss around 20 000 october 2009 34 plaintiff deposed 9 december 2009 hat since selling business undergoing fullt ime rehabilitation unsure working capacity would 35 plaintiff longer ability work chef requires operate cooking equipment left hand result injury belief precluded resuming profession believe capacity undertake physical work able involving constant li fting pulling bending required 36 plaintiff concerned nev er able return form work considering age educational past work experience physical injury treatment 37 7 may 2008 plaintiff referred dr smith dr ellul head neck specialist due persistent noseblee d cauterised plaintiff nose prevent bleeding vcc aa lp 6 judgment marinelli v tac 38 stage plaintiff also suffering ringing left ear reduced hearing dr elul commended formal hearing test vestibular test carried alfred hospit al 12 june 2008 plaintiff subsequently advised dr elul mri investigate possible hairline frac ture base skull 39 due ongoing back shoulder pain dr smith referred plaintiff physiotherapy hydrotherapy treatment underwent three month condition worsened ceased therapy 40 january 2008 plaintiff suffe ring considerable stomach discomfort diagnosed dyspepsia dr smith recomm ended plaintiff undergo gastroscopy underwent month dr smith advice plaintiff ceased taking panadeine forte thought cause stomach bowel problem 41 plaintiff experiencing signifi cant pain discomfort may 2009 dr smith referred physiotherapy 42 due extensive consequence accident plaintiff also began suffering psychologically particularly ongoing pain restricted lifestyle dr smith referred psychologist counselling 43 plaintiff continued discomfort got feel irritable angry sleeping poorly worried family severity pain made lose interest recreational sporting activity 44 plaintiff last consulted psychologis lifecare program middle 2010 recently seen mr foenander referral dr smith 45 28 july 2009 plaintiff saw m hitch occupational therapist recommended receive assistance wit h gardening cause persistent pain difficulty sleeping also recommended specially vcc aa lp 7 judgment marinelli v tac designed mattress 46 september 2009 plaintiff still experiencing chronic pain consulted dr smith plaint iff treated panadeine forte nurofen nitrolingual spray durotram xr voltaren 47 dr smith recommended mri determine treatment required plaintiff left shoulder lower back neck full scan revealed damage plaintiff left shoulder 48 plaintiff continues consult dr smith fortnightly basis 49 cross examination plaintiff sa id see dr smith regularly substantially high bloo pressure also shoulder neck back problem 50 plaintiff saw mr de la harpe thopaedic surgeon february 2011 back neck condition mr de la har pe advised require surgery encouraged plaintiff continue physiotherapy mr de la harpe referred plaintiff mr richar dson orthopaedic surgeon see 30 march 2011 51 plaintiff saw physiotherapist life care st albans part pain management program two period th ree month treatment quite help solve injury si nce october last year plaintiff seeing mr giovannucci physiot herapist initial ten physiotherapy session twel session approved defendant 15 february 2011 52 plaintiff currently take six eight nurofen tabl ets one two panadeine forte day partial relief pain al us voltaren gel 53 plaintiff developed hypertensi since accident take vcc aa lp 8 judgment marinelli v tac blood pressure tablet furt diagnosed fatty liver take vitamin activity 54 prior accident plaintiff significant restriction range movement problem since time everyday task requiring mobility particular diffi culties sitting crou ching squatting standing 55 restriction particularly signific ant relation work chef accident duty pl aced stress back neck generally take break every hour sometimes frequently prevent exacerbation 56 pain plaintiff fam ily relationship come great deal stress relationship wife difficult sex drive low result prescribed viagra 57 plaintiff deposed prior ccident liked remain healthy active often went swimming ca mping activity able continue since acci dent pain 58 prior accident plaintiff quite good toned figure happy used walk three four time week forty five minute le able exercise since accident accordingly gained fifteen kilogr am caused feel depressed 59 cross examination plaintiff admitted always overweight person could possibility complaining dr galtieri general practi tioner time hi weight 2002 2003 60 plaintiff said however current weight probably highest ever 2003 2005 plaintiff put weig ht may got vcc aa lp 9 judgment marinelli v tac 100 kilogram today weighs excess 112 115 kilogram dr galtieri wrong recorded plaintiff weighed 112 5 kilogram june 2003 saying perhaps may weighed 102 k ilograms plaintiff agreed possibility june 2004 complained dr galtieri weight gain 61 prior accident pl aintiff played golf regularly keilor golf club midway however played since approximately week prior accident injury prevent 62 accident plaintiff also enjoyed playing tennis socially member taylor lake tennis club ongoing pain longer able play extent 63 plaintiff injury also affect ed ability pl ay freely child longer participates activity kicking ball 64 plaintiff continues struggle personal care task shaving washing hair pain even attempting get dressed putting jumper belt sock 65 plaintiff shoulder neck lower back pain affect mobility around house ability perform task able mow lawn rotation front lawn one day back lawn another whereas could mow whole lawn day 66 prior accident plaintiff wa handyman task home cleaning window pergol cannot activity anymore 67 plaintiff injury limit abilit household chore taking bin relies hi wife daughter help sometimes got himsel f without experiencing intense vcc aa lp 10 judgment marinelli v tac pain 68 go grocery shopping plai ntiff push trolley standing next wife simply make feel worthless avoids carrying lifting heavy grocery bag although ca n carry lighter grocery right hand 69 since accident plaintiff pai n caused problem sleeping difficulty falling asleep waking regularly night pain stressed problem lying back plaintiff normal waking time 70 plaintiff sell scooter fter accident worried might involved another accident even driving car present problem pain sitting long peri od keeping arm shoulder level 71 plaintiff pay membership attends aquatic centre almost daily basis exercise hydrotherapy pool 72 plaintiff frequently visit nephew coffee shop essendon plaintiff also spends time visiting mother law peter mccallum cross examination plai ntiff denied cruisy life moment pain 73 plaintiff confirmed cross exam ination number overseas trip since october 2007 trip thailand plaintiff returned thailand july 2008 august sep tember year also went vietnam 74 plaintiff advised go thailand doctor advised sort chill knew accident became emotionally stressed uptight relying wife lot needed sort find vcc aa lp 11 judgment marinelli v tac 75 travelling economy trip plaintiff always got walked around time plane 76 plaintiff went thailand october 2009 january july also october 2010 visited way home trip italy planning go away moment could really explain would change normal r outine frequent travel 77 plaintiff owns house line credit 110 000 paid trip also brother helped 78 2009 plaintiff bought 300 chrysl er 30 000 using part sale proceeds st albans business 79 plaintiff receipt disability support pension since october 2010 pain restriction 80 december 2009 plaintiff deposed continued extensive limitation result back neck hip right hip left shoulder pain continued experience headache migraine hearing difficulty ringing right ear vertigo chronic nasal problem problem standing sitting chronic pain difficulty walking normally tended walk limp 81 plaintiff required medication bec ause foot everyday working home der function reasonab le physical level even though reluctant take medication 82 medication intake plaintiff problem bowel dr smith recommended ceasing pana deine forte identified cause dyspepsia 83 recent affidavit sworn 18 february 2011 plaintiff deposed vcc aa lp 12 judgment marinelli v tac suffered ongoing left shoulder neck head lower back pain migraine 84 lower back pain go left buttock left leg knee left sided leg pain form pin needle go foot occasionally f eel cramp also le ft leg occasionally feel weak 85 plaintiff back stiff morning hard put shoe back symptom worse prolonged sitting standing walking longer distance often plai ntiff limp get sitting standing position plaint iff able bend degree tends avoid bending lifting aggravates back pain 86 plaintiff experience pulling sen ation pain back head upper neck producing migraine th e pain neck go left side shoulder flare lift object weighing kilogram 87 plaintiff continues suffer const ant left shoulder left shoulder blade pain movement restricted unable raise left arm elbow height without discomfort activity involving left arm cause pain predominantly us right hand manoeuvre steering wheel left arm pain also open door us right hand rotation left arm increase shoulder discomfort 88 pain level left shoulder time six seven ten rarely level worse morning pain radiates hand experience pin needle finger lay evidence 89 plaintiff wife carmel marinelli swore affidavit 18 february 2011 vcc aa lp 13 judgment marinelli v tac 90 mr marinelli deposed prior accident plaintiff healthy man enjoyed working chef often pain cannot want frequently stay hom e rest relieve symptom activity rkedly restricted pain 91 mr marinelli plaintiff good rela tionship prior accident normal family life result injury plaintiff longer enjoys activity trouble physical thing like dancing pain sitting rest aurant prolonged period 92 result injury plaint iff struggle complete household duty used trouble preparing meal salad symptom start hurt stand prolonged period cook meal 93 plaintiff try job around house trouble ability tend garden greatly diminished accident able lift heavy item around hous e garbage bin unable take bin since accident plaintiff also great difficulty lifti ng lightes item continues mow lawn take longer 94 mr marinelli noticed plaintiff often limp get bed first thing morning usually able walk around better moved around bit difficultie intimate plaintiff often pain accident 95 plaintiff find frustrating perfectly healthy accident limited since accident mood demeanour changed oft en seems depressed pessimistic lost lot energy motivation 96 plaintiff relationship dau ghters suffered result injury cannot play interact often used vcc aa lp 14 judgment marinelli v tac pain situation seems upset 97 result injury plainti ff take lot medication exercise stretch home relieve pain concerned despite taking medication plaintiff still seems pain video surveillance 98 defendant admitted total twenty hour surveillance undertaken four day january 2010 twenty hour surveillance undertaken february 2011 three day 99 investigator report set 1 08 pm 18 january 2011 plaintiff observed entering premis e richmond ascended step displaying limp 1 53 pm plaintiff noted crossed roadway limping heavily mo ving sight walked approximately 80 100 metre vocational evidence 100 plaintiff referred au stralian government job capacity assessment 9 february 201 0 time assessed mr besanko clinical psychologist 101 mr besanko reported plai ntiff diagnosed chronic pain soft tissue injury back nose left shoulder also depression anxiety 102 based available medical opinion plaintiff assessed work capacity eight fourteen hour per week intervention disability employment network treating doctor 103 dr smith st mary medical clinic st albans treated plaintiff since july 2004 dr smit h reported accident vcc aa lp 15 judgment marinelli v tac history intestinal problem gast ro oesophageal reflux mild depression anxiety gout atypical chest pain plaintiff regular medication accident nexium 104 dr smith saw plaintiff afte r accident 10 october 2007 105 plaintiff advised since accident su ffered lower back neck right hip left shoulder pa probl em teeth difficulty hearing seen several specialist able significantly help various form treatment avail 106 dr smith noted plaintiff chronic pain resulted problem prolonged standing walking normally leave work pain plaintiff become depressed family relationship suffered limi ted medication could take intestinal problem required daily medication pain stiffness 107 dr smith noted plaint iff give normal employment also longer able parti cipate sporting hobby tennis golf mental health deterior ated since accident significant depression xiety feature post traumatic stress disorder ptsd plaintiff chronic fatigue irritability tendency become frustrated angry easily affecting family relationship plaintiff slept p oorly mood fluctuated time 108 dr smith noted plaintiff physical jury caused pain back neck left shoulder particular significant change mri spine degeneration mild canal stenosis disc bulging 109 dr smith considered acci dent exacerbated change noting complaint ba ck neck pain prior accident vcc aa lp 16 judgment marinelli v tac 110 dr smith thought plaintiff suffered discogenic ligamentous strain cervical lumbar spine accident continued aggravated degenerative change 111 dr smith noted mri scan plaintiff left er also showed rotator cuff injury tear posterior labrum thought plaintiff headache predominantly cervicogeni c exacerbation stress frustration following hi dealing defendant 112 dr smith considered plaintiff pain organic nature supported radiological finding specialist opinion 113 dr smith noted since accident plaintiff put approximately sixteen kilogram due inactivity weight gain aggravated gastro oesophageal reflux also contribut ed development hypertension 114 noting current physiotherapy nexium hypertension medication nurofen pain dr smit h suggested plaintiff r equired multidisciplinary pain management treatment pr ogram past noted plaintiff referred dr thomas also pa rticipated lifecare plan benefit 115 dr smith thought plaintiff injury stabilised currently fit work 116 dr smith noted evid ence problem plaintiff accident except previous episode mild depression considered understandably aggravated plaintiff chronic pain health problem since accident gastro oesophageal reflux also aggravated 117 dr smith thought plaintiff injury likely permanent prognosis guarded dr smith considered plaintiff unable work limited ever yday daily activity remained vcc aa lp 17 judgment marinelli v tac chronic pain 118 plaintiff referred spinal anagement clinic victor ia dr smith pain management program september 2009 plaintiff initially assessed program 6 oct ober 2009 noted complex clinical scenario including oderately severe cervical lumbar disc function association poor control stabilising muscle 119 whilst spinal clinic plaintiff underwent assessment dr middleton occupational medicine dr ford mu sculoskeletal physiotherapist mr ruddock psychologist 120 dr middleton initial asse ssment thought difficult determine true clinical radiculopathy due plaintiff inconsistent behaviour examination noting cl ear radiological mechanism radiculopathy case noted radiologically pl aintiff however significant left shoulder pathology degree difficult ascertain due muscle guarding el evated pain focus thought almost certainly degree mal adaptive central processing common chronic pain syndrome also thought high likelihood least component plaintiff pai n neuropathic origin noted moderate level inconsistency likely significant impact response treatment return normal activity date 121 dr middleton last reported 23 march 2011 122 noting two year since accident dr middleton thought sign symptom indicated recovery physiological point view especially lumbar sp ine felt plaintiff suffered chronic lumbar spine strain aggravat ed l5 s1 facet joint greater left right vcc aa lp 18 judgment marinelli v tac 123 dr middleton felt evidence indicate degree sciatic pain following injury borne objective finding reduced reflex left leg 124 considered plaintiff suffered chronic strain cervical spine resulting secondary vascular headache also felt may neural impingement time plai ntiff ongoing neuropathic pain extending left shoulder 125 dr middleton thought plaintiff suffered left rotator cuff syndrome impingement mri pointing small lateral tear left glenohumeral joint 126 due plaintiff chr onic pain previous two year dr middleton believed suffered complex region al pain syndrome type 1 crp together felt may neu ropathic pain left shoulder thought plaintiff strained le ft acromioclavicular joint finally plaintiff suffered anxiet depression due ongoing symptom frustration ssociated accident 127 dr middleton noted referred plaint iff mr evans orthopaedic surgeon relation shoulder problem noted mr evans reported difficulty identifying absolut e cause plaintiff underlying shoulder pain suggesting may neurogenic component given widespread tenderness burning nature pain extending distally plaintiff arm 128 dr middleton noted suggested ultrasound presence capsulitis associated wit h mild stiffness mri scan showed fluid actual shoulder joint 129 summary dr middleton stated plai ntiff suffered left rotator cuff syndrome impingem ent secondary subacromial bursitis resulting vcc aa lp 19 judgment marinelli v tac small supraspinatus full thickness tear dr middleton thought plaintiff may also suffered traumatic injury glenohumeral joint resulting small level tear 130 clearly suffered continuous chronic pain year dr middleton considered plaintiff developed crp type 1 likely presence neuropathic pain thought plaintiff also suffered chronic adjustment disorder anxiety particular also degree depression due frustrati ons associated accident 131 dr middleton believed underly ing organic representation plaintiff pain suffering bee n amplified ongoing nature chronicity result ing amplification seen crp type 1 dr middleton noted people would gard pain amplification non organic note repor t sensory change non anatomical distribution noted may represent degree non organic pain behaviour 132 time assessment network pain management program dr middleton considered clearly jor organic pain symptom relating left shoulder neck resulting secondary vascular type headache noted regard lumbar spine proportion pain organic pronounced quantify organic pain would exceed two third regard shoulder neck half relation lumbar spine 133 dr middleton thought plaintiff shoulder assessed mr evans noted plai ntiff needed ongoing treatment psychologically psychiatrically rehabilitation point view effort provide skill enable attain sedentary type work provided thought still caus al connection plaintiff physical injury ccident accident remained vcc aa lp 20 judgment marinelli v tac 134 mr strintzos physiotherapist report ed mr evans orthopaedic surgeon december 2009 whilst pl aintiff involved th e program mr strintzos repeated maladaptive central processi ng comment included earlier report complied dr middl eton asked mr evans provide opinion regard plaint iff left shoulder pathology 135 pain management follo w report six month program plaintiff reported stable pa mood level redu cing treatment last six month compared initial assessment plaintiff reported pain level improved although felt stronger functional tolerance improved despite fu nctional improvement plaintiff continued report ongoing moderate severity cervical lumbar left shoulder pain 136 february 2010 mr strintzos noted mood perspective plaintiff depression anxiety st res symptom remained stable since discharged requir e specific treatment psychological perspective 137 mr strintzos thought plaintiff work capacity following restriction namely two hour day three day week lifting limit 5 kilogram sustained repeated forward bending twisting sitting longer fifteen minute standing walking pr olonged shoulder level work 138 mr strintzos ported 28 march 2011 139 considered clearly ganic non organic factor associated plaintiff presentat ion noted init ial assessment moderate level inconsistency whic h likely significant impact plaintiff response treatment return normal activity vcc aa lp 21 judgment marinelli v tac non organic sign waddell testing 140 mr strintzos thought impossible quantify respective contribution organic non organic cause plaintiff presentation 141 opinion plaintiff require fu rther treatment lumbar cervical spine injury considered injection physiotherapy treatment may indicated fo r plaintiff shoulder injury discretion ort hopaedic surgeon noting mr evans believe surgery would benefit plaintiff following view december 2009 142 based last review plainti ff 4 august 2010 mr strintzos think plaintiff injury st abilised considerin g pathology expected time plaintiff would slowly symptomatically improve 143 considered plaintiff spinal shoulder injury permanent nature cautioned statement saying due chronic nature plaintiff injury presence psychosocial issue non organic behaviour slow progress dat e improvement short medium term likely slow 144 view discharged plaintiff limited work capacity sedentary duty reduced hour pl aintiff believe could return work receiving disability pension 145 mr strintzos thought plaintiff inju ries restrict performing social light domestic activity considered plaintiff would capable performing heavy dome stic task pre injury recreational activity tennis golf 146 mr strintzos thought plaintiff suit able seek work sedentary nature require frequent repetitive bending lifting greater five kilogram repetitively prolonged abov e shoulder level work prolonged static posture vcc aa lp 22 judgment marinelli v tac 147 dr ford physiotherapist recommended 3 february 2010 plaintiff continue certified unfit medico legal claim related issue resolved thought would appropriate depending plaintiff progress consider vocational assessment 148 mr ruddock psychologist recommended 3 february 2010 plaintiff additional individual p sychological session due ongoing significant psycho social factor 149 mr evans reported dr middleton 11 december 2009 150 basis consultation plaintiff date mr evans advised entirely sure cause plaintiff underlying shoulder pain su spected may neuropathic component plaintiff pain given widespread tenderness burning nature pain problem getting distally limb 151 view may represent fo rm crp noted change mri scan really fit plaint iff clinical picture although said thought plaintiff weakness rotator cuff getting secondary impingement 152 mr evans noted patient wit h long standing shoulder pain poor function tend deconditioned rotator cuff hence poor glenohumeral joint control could lead secondary impingement mr evans think rotator cuff weakness plai ntiff primary problem thought consequence ongo ing shoulder pain noted may also element capsulitis play mri scan showed fluid shoulder joint plaintiff mild stiffness thought difficult know whether primary secondary problem 153 mr evans suggested term management hydrodilatation vcc aa lp 23 judgment marinelli v tac would first place start tr relieve pain may coming glenohumeral joint try improve range shoulder motion plaintiff return physiotherapy treatment still getting discomfort related rotator cuff cortisone injection subacromial space would next thing try 154 mr evans hoped would break cycle pain poor function plaintiff could strengthening work physiotherapist mr evans also thought hat assistance specialist crp would beneficial may able make recommendation term helping plainti ff pain control think surgery would benefit plaintiff shoulde r anything would tend make rotator cuff weaker 155 mr giovannucci physiotherapist b een treating plaintiff since 21 october 2010 156 plaintiff reported moderate cervical spinal pain aggravated lifting reading driv ing reported moder ate headache came frequently disturbed sleep reported moderate lu mbar spinal pain pin needle lower limb aggr avated lifting walking sitting standing reported left shoulder pain aggravated lifting pushing pulling carrying activity 157 examination cervical spine movem ents restricted painful tenderness c0 1 c1 2 spinal se gments trapezius splenius capitis scalenus posterior muscle neurological examination upper limb normal 158 mri scan cervical horacic spine 14 september 2009 mri 21 september 2009 mri left shoulder 21 september 2009 noted vcc aa lp 24 judgment marinelli v tac 159 mr giovannucci opinion plai ntiff sustained discogenic musculo ligamentous strain cerv ical spine aggravation pre existing degenerative change become chronic thought plaintiff sustained discogenic musculo ligamentous strain lumbar spine also aggravated pre existing degenerative change also become chronic 160 plaintiff sustained full thickn es two three millimetre tear supraspinatus muscle labral tear subacromial bursitis left shoulder become chronic 161 mr giovanucci considered radi ological film showed organic basis plaintiff complaint 162 view plaintiff pain suffering organic basis considered plaintiff clinical presentation demon trated chronic spinal pathology evident spinal sensitisation proce ss evidence organic pathol ogy left shoulder radiologically clinical examinat ion considered organic contribution pain suffering plaintiff experienced 163 mr giovanucci thought plaintiff hould continue therapy exercise next three month 164 considered plaintiff injury spine left shoulder resulted permanent impairment view plaintiff totally incapacitated pre injury work may suitable light sedentary work 165 thought plaintiff le ft shoulder spinal dysfunction precluding partici pating golf tennis soccer precluded extended walking plaintiff employment acti vities restricted due decreased tolerance lifting pushing pulling activity postural restriction standing sitting tolerance vcc aa lp 25 judgment marinelli v tac 166 mr de la harpe orthopaedic surgeon examined plaintiff 11 february 2011 referral dr smith 167 mr de la harpe noted since acci dent plaintiff suffered mainly referred migraine headache tension neck left shoulder pain diffuse back pain non dermatoma l left leg pain paresthesia left arm 168 plaintiff told mr de la harpe able go back work since accident tried return work day per week able cope pain 169 examination wa neurological abnormality upper lower limb mri scan cervical thoracic lumbar spine showed age related change surgical lesion 170 lumbar flexion 75 degree 10 degree extension 171 mr de la harpe feel surgery would benefit plai ntiff needed continue physiotherapy also hydrotherapy 172 mr de la harpe asked professor richardson look plaintiff rotator cuff tear 173 mr de la harpe examination finding slightly decreased range movement lumbar spine without neurological abnormality limb 174 believed plaintiff current condi tion chronic pain without significant radiological evidence damage 175 mr de la harpe noted radiolog ical film demonstrate organic basis plaintiff complaint much surgical lesion evidence fracture disl ocation acute soft tissue injury vcc aa lp 26 judgment marinelli v tac 176 mr de la harpe believed plaintiff chronic pain issue noted qualified comment whether non organic contributor pain except sa surgical lesion present 177 mr de la harpe suggested continued conser vative treatment appropriate management setting multidisciplinary rehab team may appropriate 178 mr de la harpe could sa whether plaintiff injury likely persist foreseeable future much seemed surgical lesion mri scan explain plaintiff current incapacity 179 mr de la harpe considered plaintiff current capacity work limited chronic pain syndrome situation impacted social domestic recreational activity believed plaintiff general prognosis somewhat guarded made poor progress since injury despite conservative management 180 mr foenander clinical psychologist saw plaintiff 28 march 2011 referral dr smith plaintiff told lucky alive accident suffered much pain agony since time 181 plaintiff reported psychological symptom sleep disturbance irritability mood swing anxiety attack loss lib ido difficulty concentration attention forgetfulness loss confidence suicidal ideation time 182 physical symptom reported recurring pain left shoulder neck lower back headache 183 mental status examination mr foenander found pl aintiff behaviour interview best characterised marked continuous movement restlessness vcc aa lp 27 judgment marinelli v tac 184 plaintiff level responsiveness appeared show effect pain level psychological dist res appeared moderate plaintiff mood anxi ous depressed irritable affect appropriate content discussion repo rted current feeling moderate depression ndicated experienc ed frequent episode depression past six month reported sleep disturbance irritability sadness fatigue 185 plaintiff thought process logical coherent content thought focussed concern r egarding presenting problem plaintiff reported abnormal pain sensation 186 dr foenander thought diagnosis chronic pain disorder due medical psychological factor addition thought plaintiff suffered adjustment disor der mixed anxiety depressed mood noted previous medical psychological history family origin account current illness 187 dr foenander noted chronic pain disorder regarded disease right cure required ongoing multidisciplinary treatment foreseeable future 188 dr foenander noted plaintiff main incapacity would combination physical psychological contribution pain problem depressed mood duration incapacity seemed indefinite 189 dr foenander concluded plaintiff r equired ongoing treatment due significant pain depression extr emely fragile psychological state future proposed recommended treatment pain management including physical psychological tr eatment would need co ordinated general practi tioner physiotherapist 190 considered plaintiff long te rm prognosis guarded view vcc aa lp 28 judgment marinelli v tac history relatively slow respons e treatment remained vulnerable decompensat e period increased stress pain currently process medico legal evidence 191 dr leonard rose consultant legal medicine examined plaintiff 14 february 2011 192 examination dr rose noted plaintiff walk ed antalgic gait demonstrated significant pai n behaviour throughout consultation plaintiff sat lean ne ck back left seemed unable sit comfortably fi ten minute frequently got chair walked significant limp 193 marked decrease norma l range cervical movement facet decrease r ange movement left shoulder joint crepitus obvious thr oughout attempted movement tenderness throughout shoulder joint left shoulder girdle 194 marked tenderness side neck left scapula trapezius muscle supraspinatu acromioclavicular joint particularly tender coracoid process 195 marked decrease range thoraco lumbar spine movement plaintiff could straight leg raise left 15 degree right 30 degree demonstrated markedly positive response dr rose attempt fl ex knee prone position 196 dr rose diagnosed multilevel disc degeneration possible disc prolapse possible internal disrupt ion one th e lumbar intervertebral disc thought plaintiff sufferi ng whiplash type injury cervical spine rotator cuff injury according investigation vcc aa lp 29 judgment marinelli v tac provided indicated multiple internal tear left rotator cuff plaintiff experienced severe low back pain appeared related multilevel disc degeneration possible disc rupture 197 dr rose believed plaintiff suff ered significant cervicogenic headache related cervical spine injury considered possibility plaintiff neck pain related disc degeneration 198 given nature original cident symptom referrable numbness tingling left hand wrist dr rose believed possible plaintiff suffered tr action injury least part brachial plexus nerve conduction study carried 199 dr rose noted surprisingly plai ntiff appeared coped reasonably well multiple disability thought plaintiff appear suffered significant leve l depression although coped poorly onset severe irri tability inability enjoy whatever quality life 200 dr rose thought significant interference plaintiff capacity employed believed unless massive change near future plaint iff chance employment extraordinarily restricted 201 dr rose thought plaintiff su ffered significant organic damage direct result accident wa concerned plaint iff never referred pain management specialist dr rose also sought assessment anaesthetist experienced ca rrying nerve block procedure thought might worthwhile 202 dr rose considered plaintiff suffering significant injury neck lower back left shoulder thought pain neurological vcc aa lp 30 judgment marinelli v tac complaint may relate nerve compre ssion nerve traction injury plaintiff left shoulder left side body thought possible may significant underly ing pathology nerve root cervical spine investigated nerve conduction study dr rowe believed plaintiff suffered injury left rotator cuff shoulder girdle even tear injury would associated degree rotator cuff syndrome 203 thought plaintiff suffered injury lower back consistent multilevel disc degenerat ion possibility nerve compression possible internal disc disruption thought cervicogenic headache arose plaintiff neck injury 204 reviewed actual film dr rose believed various radiological report demonstrated organic basis plaintiff complaint believed plaint iff pain suffering directly attributable organic basis injury believe non organic contribution pain suffering plaintiff experienced 205 dr rose thought plaintiff injury likely permanent continued preclude restrict relation social domestic recreational employm ent activity particula r believed plaintiff significant left shoulder injury also lower back complaint would also contribute significantly strictions thought plaintiff general prognosis poor 206 dr weissman psychiatrist exami ned plaintiff 13 january 2011 207 asked previous psychiatric history plaintiff told dr weissman never suffered formal psychiatric problem occasionally felt time past vcc aa lp 31 judgment marinelli v tac 208 mental state examination plai ntiff somewhat circumstantial inclusive although dr weissman noted tried cooperative speech fluent spoke pressure speech quite voluble quality affect tense frustrated mildly irritable mildly moderatel anxious depressed 209 plaintiff thought stream incr eased formal thought disorder content thinking vealed occasional flashback image blood coming nose accident scene ot herwise regular thought accident pl aintiff expressed reported mild moderate mixed emotional symptom theme feature tense frustrated irritable mildly moderately anxious depressed pain focus preoccupation 210 formal abnormality perception plaintiff symbolic mood congruent bad dream bad dream transport accident per se scooter motor bike related anxiety avoidance phobia transport related anxiety symptom hyper vigilance hyper arousal jumpi ness increased startle reflex 211 plaintiff insight judgment characterised low self esteem confidence elevated responsiveness reminder trigger accident elevated health concern 212 dr weissman thought plaint iff definitely experienced mild primary direct post traumatic stress anxiety symptom feature traumatisation although accepted symptom feature mild plaintiff satisfy diagnostic criterion full blown ptsd considered plaintiff symptom objective sign mental state examination satisfied diagnosti c criterion chronic adjustment disorder depressed anxious mood mild moderate intensity severity vcc aa lp 32 judgment marinelli v tac 213 finally dr weissman agreed pain focus preoccupation elevated health concern diagnosti cally thought plaintiff also suffering symptom featur e chronic pain disorder associated psychologic al factor general medical condition large dr weissman thou ght plaintiff psychiatric condition stabilised 214 dr weissman think plainti ff totally incapacitated work however believe plainti ff full capacity fulltime work also thought plaintiff required pain management would benefit seeing experienced clinical psychologist anger management also benefit herapeutic trial anti depressant medication 215 dr weissman thought plaintiff psychiatric prognosis somewhat guarded uncertain thought plaintiff referred independent psychiatrist nine twelve month time plaintiff investigation 216 mri scan cervical thoracic spine carried dr smith request 14 september 2006 wa reported acute abnormality demonstrated cervical sp ine right paracentral disc bulge seen c5 6 level causing minimal thecal indentation without obvious caudal neural compression 217 significant abnormality dem onstrated thoracic spine 218 mri scan left shoulder organised dr smith 21 september 2009 small full thickness tear mid supraspinatus tendon demonstrated small left shoulder joint effusion left subacromial bursitis noted small posterior superior labral tear orthopaedic surgical review recommended ther e rotator cuff tendon vcc aa lp 33 judgment marinelli v tac abnormality identified 219 mri scan lumbar spine tak en 21 september 2009 showed mild central canal stenosis l3 4 l4 5 level mild left l4 5 foraminal stenosis degenerative change l5 s1 level facet joint convincing anterior spond ylolisthesis par defect noted lumbar spine 220 dr middleton organised shoulder investigat ion 13 october 2009 x ray glenohumeral articular space normal evidence previous fracture either shoulder bone joint soft tissue normal particular obvious pathology region left ac joint 221 reporter left shoulder ultras ound noted aware recent mri showed damage supraspinatus tendon ultrasound apart mild heterogeneous change th rough supraspinatus tendon rotator cuff tear calcification seen 222 supraspinatus infraspinatus subscapularis tendon good thickness mild thickeni ng overlying bursa 223 shoulder movement restricted painful reporter noted would appear due combi nation impingement probably capsular contraction following trauma defendant medical evidence 224 defendant tendered note dr ga ltieri detailing plaintiff problem weight prior accident 225 july 2002 plaintiff complaining lack motivation needed lose weight 13 june 2003 unable lose weight still lacked motivation weighed 112 5 kilogram june 2004 vcc aa lp 34 judgment marinelli v tac noted plaintiff eating poorly gained weight epigastric discomfort put nexium reflux 226 mr dickens orthopaedic surgeon first ex amined plaintiff 10 august 2009 examined 17 may 2010 227 examination plaintiff told still problem left shoulder back neck also migraine headache become quite problem 228 plaintiff advised severity pain visual analogue scale six ten worst eight best four plaintiff complained pain left shoulder burning sensat ion associated restriction left shoulder movement however said improved since significantly worse eighteen month ago 229 plaintiff complained lumbosacral pain going left buttock back left leg knee also locking sensation knee described pain sev en ten said worst problem 230 mr dickens asked plaintiff mo neck quite gross restriction movement although mr dickens thought improved plaintiff distracted plainti ff tender upper cervical spine region particularly left side neck muscle spasm palpable visible spinal deformity 231 power testing upper limb gl obally restricted left plaintiff also altered sensation non anatomical di stribution including sensation change posterio r aspect scapula area mr dickens thought inconsistent conform particular dermatome 232 left shoulder flexion 100 degree extension range vcc aa lp 35 judgment marinelli v tac 50 abduction 100 degree adduction 20 external rotation 50 degree internal rotation 30 degree 233 examination lumbosacral sp ine obvious palpable muscle spasm rotation plaintiff fl exion range fingertip knee virtually extension rotation restricted quite markedly le right compared left obvious palpable muscle spasm rotation 234 neurologically lower limb flex normal plaintiff sensory change anatom ical involving whole upper thigh region front back side normal sensation knee global weakness le ft limb compared right 235 mr dickens thought plaintiff soft ti ssue injury cervical lumbar spine pathology rotator cuff left shoulder 236 mr dicken noted mri study indica ted degenerative change cervical lumbar r egion thought course normal plaintiff age group would appear plaintiff may produced aggravat ion underlying pathology mr dickens believed injury consistent accident pre existing condition 237 mr dickens noted tr eatment conservative recently plaintiff invest igations convinced serious problem left shoulder mri 238 mr dickens would expected soft ti ssue injury presence proceeding degenerative change solve time got impression plaintiff injury focused non organic component ongoing symptomatology made prediction prognosis spinal inju ries somewhat difficult vcc aa lp 36 judgment marinelli v tac 239 mr dickens noted added plaintiff complete deconditioning lack exercise combined crease weight would mitigate developing improvement spine 240 mr dickens believe place surgery plaintiff lesion weight reduction self help fitness thing likely result improvemen combined would need plaintiff understand wit h appropriate ight reduction program likely make full recovery mr dickens suspected plaintiff doubted spoke plaintiff convinced opportunity return work nil 241 noting plainti ff ability run business past mr dickens suspected plaintiff woul able sedentary work office work static work security guard mr dickens thought plaintiff unintelligent man sure ther e would form work could 242 unless went massive rehabi litation program including weight reduction exercise mr dickens could see plaintiff returning work chef 243 mr dickens impression plai ntiff injury focussed certainly little way self help physically believed plaintiff could work thought non organic factor precluding returning work unfortunately without improvement general conditioning attitude mr dickens suspected plaintiff may well persist non working role fo r long time future maybe indefinitely 244 seen two dvd mr dickens commented hey way altered opinion vcc aa lp 37 judgment marinelli v tac 245 dr littlejohn rheumatologist exami ned plaintiff 10 february 2011 246 dr littlejohn reviewed mri plaintiff left shoulder lumbar spine taken september 2009 mri ce rvical thoracic spine taken 14 september 2009 247 examination plaintiff walked limp favouring left side pain behaviour hat needed stand move regularly throughout interview grimaced win ced throughout examination 248 mild reduction movement cervical lumbar spine plaintiff abnormally tender left midline upper quadrant including neck chest wall arm well lower back leg 249 plaintiff normal range motion shoulder girdle joint upper limb well hip joint lower limb neurological examination normal 250 dr littlejohn noted plaintiff clinic al feature chronic pain syndrome principally affecting left upper lower quadrant noted could described regional pai n syndrome area plaintiff also fulfilled american college r heumatology diagnostic criterion fibromyalgia 251 dr littlejohn could define specific tissue damage injury plaintiff neck shoulder lower leg back explain persisting pain abnormal sensory finding believed plaintiff pain syndrome related psychosocial input sensit isation pain nerve within brain spinal cord mechanism 252 dr littlejohn considered prognosis improvement plaintiff chronic pain guarded noting ha symptom time however noted symptom always potentially reversible thought surgery required considered treatment vcc aa lp 38 judgment marinelli v tac may beneficial regular exerci se psychological management 253 dr littlejohn view pain syndrome terfered plaintiff ability work domestic leisure acti vities thought review pain management team focussed mainly psychology 254 viewed two dvd dr littl ejohn change diagnosis chronic pain syndrome noted video indica te plaintiff ability take wide range domestic activity without obvious problem would translate wi de range work activity well 255 dr littlejohn concluded film image would confirm observation made report potential reversibility type pain syndrome indicated wa highly likely case plaintiff given time addressing psychological input problem 256 plaintiff examined two occasi ons psychiatrist dr entwisle initially 6 july 2009 mo recently 18 january 2011 257 following initial examination dr entwisle found plaintiff suffering pain disorder associat ed psychological medical factor 258 recent mental state ex amination plaintiff appeared anxious tense speech pressured spoke loud voice unusual notion idea relevant issue related plaintiff sensitive anxiou predisposition experi ence pain following accident ongoing issue st rain tension household due various preoccupation concern 259 memory concentration intact perceptual abnormality insight present earlier diagnosis confirmed dr entwisle commenting plaintiff emotional symptom continued despite various form treatment vcc aa lp 39 judgment marinelli v tac 260 dr entwisle view pain disorder impacted upon plaintiff ability work also upon domestic leisure activity 261 plaintiff told dr entwis le attending life care counsellor july 2010 assist pain whilst overall improvement regard experience pain found treatment su pportive benefit 262 dr entwisle forwarded surve illance report maurice kerrigan associate dated 24 january 2011 two dvd 263 dr entwisle noted plaintiff able board drive alig ht car walk reasonable distance pay purc ha market put item trolley without obvious restriction 264 noted extent con istent plaintiff description daily activity noted consistent description also film would appear plaintiff level physical activity particularly limited indicated report thought plaintiff continued report various anxious c oncerns health may fact reflect true state overview 265 application init ially brought relation orthopaedic psychiatric impairment closing su bmissions counsel plaintiff withdrew application purs uant sub section c 266 whilst claim relation sp ine abandoned submission plaintiff counsel related le ft shoulder impairment ultimately submitted si gnificant plaintiff physical impairment 267 satisfied plaintiff suffered tear left rotator cuff also vcc aa lp 40 judgment marinelli v tac soft tissue injury lowe r back neck accident 268 whilst difference edical opinion nature plaintiff left shoulder probl em consensus accident related followed knocked scooter onto left side motor vehicle 269 although non organic factor feature medical opinion relating plaintiff spinal injury fi ndings regard much lesser extent relation left shoulder injury accepted definite pathology repor ted mri left shoulder taken 21 september 2009 270 investigation showed small full thickness tear supraspinatus small left shoulder joint effusion left subacromial bursitis small posterior labral tear 271 dr smith mr giovannuci diagnosed plai ntiff condition similar term considered condition organically based whilst largely leaving consideration plaintiff shoulder condition mr richardson mr de la harpe believed plaintiff su ffered rotator cuff tear accident 272 although mr evans think rotator cuff weakness plaintiff primary problem thought consequence ongoing shoulder pain considered may also element capsulitis play mri scan showed fluid shoulder joint plaintiff mild stiffness 273 dr middleton diagnosed left rotato r cuff syndrome impingement secondary subacromial bursitis resulting small supraspinatus full thickness tear also thought plai ntiff suffered traumatic injury glenohumeral joint resulting small labral tear vcc aa lp 41 judgment marinelli v tac 274 whilst also diagnosed crp chronic adjustment disorder dr middleton considered ther e underlying organic representation plaintiff pain suffering two thir d thereof relating left shoulder organic nature 275 mr strinzi thought radiologically plaintiff significant left shoulder pathology severity difficult ascertain due muscle guarding elevated pain focus 276 dr rose diagnosed rotator cuff injury wit h multiple internal tear left rotator cuff shown investigation believed plaintiff suffered injury left rotator cuff shoulder gi rdle even tear injury would associated degree rotator cuff syndrome considered plaintiff condition organically based 277 dr littlejohn diagnosed crp fibromyalgia without really discussing specific shoulder pathology invest igations available relation thereto 278 mr dickens thought appeared vestigation report pathology rotator cuff left shoulder first exam ination mr dickens made finding abnormal illness behaviour commenting examination presentation plaintiff injury focussed 279 accepting preponderance medical opinion sa tisfied injury plaintiff left shoulder produced organic impairment consequence 280 issue whether consequence impairment serious long term 281 prior accident plaintiff problem left vcc aa lp 42 judgment marinelli v tac shoulder since time accept continuing pain radiating left hand finger experience pin needle 282 plaintiff unable move hi left arm elbow height without discomfort predominant ly us right hand ordinary every day task drivi ng opening door 283 problem per sisted nearly four year consider impairment plaintiff left shoulder long term 284 plaintiff continues take medicati six eight nurofen tablet one two panadeine forte ba ck shoulder injury still requires physiotherapy treatm ent mr giovannucci 285 whilst plaintiff spinal injury also result problem work social activity ashley ja said grech v orica australia pty ltd 2006 14 vr 602 para 58 consequence may multiplicity cause including multiplicity compensable injury 286 provided plaintiff estab lishes subject compensable injury left shoulder materially contributes impairment consequence continue long term role injury preclude court concluding appropriate casual link compensable injury consequence relied upon 287 plaintiff work history prior accident one buying rundown takeaway food business sel ling done six occasion prior accident 288 submitted plaintiff employment capacity affected shoulder injury longer capable doi ng physical work involved building business sell 289 whilst plaintiff working full time time accident vcc aa lp 43 judgment marinelli v tac working five day week lunchtim e k kitchen operated extended period time work prior accident depression later gout january 2007 plaintiff physically restricted capacity work chef k kitchen prior accident 290 since accident plaintiff left shoulder injury affe cted ability perform heavier duty chef sandwich bar attendant requiring use arm carrying stock item well cooking carrying heavy utensil food item 291 accept plaintiff difficulty duty return k kitchen accident caused cease job wh en le sympathetic owner took business plai ntiff tried operating business st albans could cope ni ne month selling business loss worked since 292 plaintiff longer involved work activity receipt disability pensi since october last year 293 whilst accept plaintiff capacity part time light work suggested psychologist mr besanko also plaintiff treating physiotherapist capacity heavy duty involving constant lifting pulling bend ing required c hef sandwich shop operator 294 left shoulder condition plaintiff continue problem personal care task shav ing washing hair getting dressed restricted hi ability household duty maintenance task able carry accident assist wife shopping play major role regard 295 plaintiff evidence unchallenged effect injury home life ability interact wit h young child vcc aa lp 44 judgment marinelli v tac vcc aa lp 45 judgment marinelli v tac 296 similarly plaintiff evidence interference sporting activity golf tennis camping resulting shoulder injury also unchallenged plaintiff left shoulder injury would impacted ability frequently travel overseas 297 accept plaintiff problem weight bef ore accident consider con equence accident injury 298 whilst surveillance taken plaintiff extended period film shown cour lay evidence challenging plaintiff evidence level rest riction disability evidence regard corroborated wife cross examined 299 considering pain suffering consequence also entitled take account expected mental consequence pl aintiff physical injury winneke p described richards v wylie supra depression frustration inabilit various activity enjoy life generally clearly plaintiff continues experience problem nature dr smith confirmed recent report 300 taking account evidence satisfied plaintiff serious injury relation left shoulder leave granted bring proceeding damage relation transport accident 301 found plaintiff serious jury relation left shoulder required consider applicatio n insofar relates spinal injury
CASEY INTERIORS PTY LTD (IN LIQUIDATION) v. SPECIALISED ROOFING SYSTEMS PTY LTD No. 4220 Judgment No. SCGRG 92_2060 Number of pages - 8 Corporations [1993] SASC 4220 (15 October 1993).txt	casey interior pty ltd liquidation v specialised roofing system pty ltd 4220 judgment scgrg 92 2060 number page 8 corporation 1993 sasc 4220 15 october 1993 court supreme court south australia anderson j cwds corporation winding action liquidator recover preference fund paid defendant partial alternative fund converted defendant chegue relation first plaintiff entitlement immediate possession running account defence overcome bankruptcy act 1966s 122 4 corporation law s565 andbankruptcy act 1966sl22 rees v bank new south wale 1964 hca 47 1964 111 clr 210 applied wei ex parte white v john vicar co ltd 1970 alr 654and queensland bacon pty ltd v rees 1966 hca 21 1966 115 clr 266 considered hrng adelaide 20 21 september 1993 date 15 10 1993 counsel plaintiff dr r j baxter solicitor plaintiff johnson winter slattery counsel defendant mr trim solicitor defendant kelly co order judgment plaintiff judge1 anderson j second plaintiff appointed liquidator first plaintiff interior 12 june 1991 order court application wind filed court 6 may 1991 advertised government gazette 9 may 1991 2 proceeding seek order defendant repay plaintiff aggregate sum paid interior reduce indebtedness defendant relation back period prior 6 may 1991 particular payment sought impugned set para 5 statement claim hereunder 3 particular date cheque amount 7 november 1990 237 00 22 november 1990 001194 35 30 21 december 1990 001345 1 415 25 1 march 1991 001565 4 490 55 8 april 1991 000121 10 000 00 16 april 1991 000160 10 000 00 22 april 1991 000180 14 388 90 24 april 1991 000200 11 304 77 conclusion trial plaintiff longer sought order relation initial payment 237 35 30 4 addition sum claimed preference pursuant 565 corporation law plaintiff also sought return 8 924 18 sum taken defendant cheque received construction service civil pty ltd csc made payable casey ceiling pty ltd ceiling pursuant section alternative damage consequent upon conversion defendant cheque interior entitled 5 narrative event leading surrounding payment substantially dispute follows narrative fact find outset necessary refer witness principal miss casey mr casey plaintiff mr stefani defendant caseys vague recollection precise detail occurred relevant period mr stefani better detailed recollection doubt accept however reflect adversely upon caseys like mr stefani gave historical evidence best ability 6 ceiling well established family company november 1989 decided director caseys two enter joint venture beton industry pty ltd beton new company interior formed head agreement drawn executed shareholding split two third casey interest one third beton interest director representative agreement evidence existing contract treated belonging income sense interior payment made account existing contract endorsement paid interior bank 7 notification arrangement including request payment ceiling account made interior given relevant trade creditor debtor supplier circular dated 24 november 1989 hand miss casey 8 march 1990 interior applied standard form defendant credit rating might open account mr stefani made usual inquiry including referee application granted account 30 day account accept mr stefani evidence date statement month end date invoice thereafter interior traded defendant month april 1991 purchase except september 1990 modest 9 september 1990 interior mr casey placed large purchase order 3429 defendant number ceiling tile associated fitting order placed discussion mr stefani tile arrived australia defendant gave interior invoice numbered 920 dated 7 december 1990 tile totalling 40 128 value tile used interior fulfil contract sabemo australia pty ltd builder project referred evidence multi tenanted building science park arrangement made interior defendant invoice delivered early interior could claim sabemo relation thereto hence description evidence material site invoice agreed understood interior defendant defendant would paid interior paid sabemo mr stefani expected payment made defendant end march 1991 allowing interior claim sabemo claim principal christmas break construction industry tile mostly delivered interior inspected late december 1990 10 early 1991 miss casey continued advise mr stefani interior would pay money sabemo accepted separate arrangement usual credit term nature size transaction manner mr casey prepared monthly claim showing previous credit value added work performed tile interior claim miss casey sent sabemo month december 1990 january 1991 february march 1991 remained outstanding claim material site unbeknown miss casey initial claim tile paid sabemo interior late january 1991 manner formulation claim appreciate initial claim raw product paid 11 february mr stefani ascertained sabemo interior paid thought month still expected paid interior payment end march march payment received 8 april 1991 sum 10 000 expected least 40 128 10 april 1991 spoke colleague mr hollings spoke mr casey aware account paid full spoke sister mr stefani made arrangement pay confirmed exchange facsimile exhibit p10 dated 10 april 1991 arrangement settle outstanding account month december 1990 january 1991 instalment within two week 12 first three payment achieve end collected mr stefani 15 april 1991 within hour done advised miss casey cheque might met presentation 13 explanation gave cheque expecting sabemo enable interior cheque met delayed unexpected personal difficulty within sabemo cheque honoured upon presentation remaining cheque paid agreed 22 24 april 1991 outstanding balance 8 782 69 form basis claim conversion shall come 14 8 april 1991 mr stefani maintained reason contemplate interior may able pay account fell due notwithstanding usual 30 day account late payment said usual industry necessary commercially realistic regard account payment 15 explanation dr baxter endorsement red ink upon february 1991 march 1991 statement evidence endorsement february statement may innocuous mr stefani explained however march 1991 statement despatched month end believed sabemo paid interior previous month expected payment full within day endorsed attention kathryn casey 15 000 8 4 91 33 890 22 balance due 30 4 91 16 referred sum 48 89 25 three month overdue statement endorsement written interior cheque sum 10 000 received 8 april 1991 time least 40 128 expected circumstance propose method payment instalment expected eventuated three month balance would reduced 8 562 25 dr baxter postulated question suggested mr stefani concerned ability interior pay irrespective receipt fund sabemo reasonable alternative explanation given mr stefani ample time opportunity cross examination thus find march 1991 concerned interior ability pay endorsed statement suggested payment program concern strengthened 8 april 1991 payment arrived 10 000 17 trading relationship party continued early april 1991 time defendant aware mr casey interior tender building built river corporation mr stefani knew defendant supplier material required specification building wanted therefore remain good term interior sake future business business however time away order placed promise given agreement undertaken whilst may hope able accept hope part mr stefani cause endorsement likely caused fear ability interior pay debt full fell due 18 context light admission mr trim counsel defendant relevant time interior insolvent effect mr kennedy evidence completed would establish 6 november 1990 one outstanding creditor casey interior pty ltd debt incurred prior date remained unpaid date commencement winding still remains unpaid transcript p 125 difficult find payment made defendant date preference required sense 19 pursuant provision ofs 122 2 3 thebankruptcy act 1966the onus fall upon defendant establish payment received 21 december 1990 24 april 1991 received good faith valuable consideration ordinary course business second dispute first third requirement dr baxter attacked 20 whilst payment received 21 december 1990 1 march 1991 impugned pleading dr baxter concentrate upon great extent prime concern payment received subsequently 21 payment 1415 25 received 21 december 1990 relation october statement payment 1 march 1991 relates good delivered november included november statement even though payment late strict trading term sense sufficient evidence relation support finding received good faith valuable consideration ordinary course business apparent evidence mr stefani late payment unusual industry even christmas break relation payment defendant discharged onus upon 22 remaining april payment may considered collectively purpose burden defendant pursuant tos 122 2 plaintiff pursuant tos 122 4 23 mr trim submitted payment seen various payment made usual operation running account interior defendant commenced march 1990 extended april 1991 relied upon judgment gibbs j wei ex parte white v john vicar co ltd 1970 alr 654to submit barwick cj said queensland bacon pty ltd v rees 1966 hca 21 1966 115 clr 266at p 283 payment intended understood end relationship debtor creditor rather ensure continuance effectively adopted word gibbs j p 659 honour said payment made reduce past indebtedness made clear assumption supply would delivered future credit accordance arrangement running account operated 24 case cloth supplied payment made reduce account basis supply bankrupt p 660 gibbs j said view question whether payment preferential effect determined looking net effect series payment delivery running account done clearly seen none payment effect giving preference respondent 25 honour followed barwick cj held even later payment made future supply would large payment credited would still relate running account 26 case mr stefani said expected trading relationship continue mr casey similar expectation mr trim submitted real doubt payment made april 1991 made part running account even though payment far outstripped contemporaneous immediately anticipated supply basis payment could preference 27 mr trim submitted finding end matter would necessary go consider effect sub s 2 4 ofs 122as gibbs j wei supra addition would possible almost trading arrangement avoid payment impugned preference simply maintaining account irrespective may thought ability creditor pay 28 running account cannot end matter regard particularly test applicable sub 4 expounded kitto j queensland bacon supra p 303 notion reason suspect express sub 4 think something circumstance would create mind reasonable person position payee actual apprehension fear situation payer actual fact sub section describes mistrust payer ability pay debt become due effect acceptance payment would payee creditor 29 gibbs j wei supra convenient pas directly consideration ofs 122 4 considering whether april 1991 payment protected bys 122 2 30 narrative set circumstance payment 8 april 1991 received mr stefani knew sabemo paid interior expected cheque received interior would full sum proposed schedule payment march 1991 statement sent 8 april 1991 payment received 31 10 april 1991 engaged negotiation led schedule repayment fixed diary note 26 april 1991 note promise miss casey pay balance attach significance initial dishonour cheque 15 april 1991 good supplied 10 april 1991 32 amount 8 april 1991 payment regard knowledge mr stefani endorsement march 1991 statement strongly justifies inference end march reason suspect interior solvency confirmed mind 8 april 1991 knew 15 april 1991 cheque could met without expected fund received therefore satisfied four april 1991 payment paid mr stefani reason suspect interior unable pay debt fell due effect payment give defendant preference creditor circumstance defendant could payee good faith described kitto j pp 223 223 rees v bank new south wale 1964 hca 47 1964 111 clr 210 honour said creditor receives payment debtor cannot held payee good faith time receiving know reason suspect debtor unable pay debt payment allowed stand place better position vi vi creditor would occupy debtor became bankrupt amount unpaid true opinion even respect payment impossible say without looking result series payment whether caught sub 1 fact effect giving preference thus payment received april 1991 successfully impugned plaintiff turn plaintiff claim conversion 33 sum 8924 18 taken defendant cheque referred para 7 statement claim cheque sent mistakenly csc made payable ceiling interior say better entitled defendant seek refund fund damage conversion cheque 34 dispute interior indebted defendant time sum 8782 69 difference interest charged defendant evidence likely csc pre existing contract ceiling paid cheque april 1991 ceiling sent defendant pleaded banked 5 june 1991 35 plaintiff counsel longer contends receipt fund defendant preference rather relied upon allegation conversion set para 15 statement claim 36 mr trim sought end claim submitting cheque fact belonged another plaintiff evidence mr casey seems contract csc ceiling submitted behalf defendant circumstance plaintiff claim manner dealing cheque quite irrelevant action 37 dr baxter took issue submission took rely upon defence jus tertii brief submitted involved cheque e interior ceiling defendant clear evidence best ceiling better title defendant arrangement november 1989 led creation interior company better title defendant entitled assert right circumstance contended conversion cheque made sum detained measure defendant loss 38 seems doubt plea jus tertii available alleged converter plaintiff immediate right possession item time conversion cf law tort australia trindale cane p 128 overcome plea person dispossessed immediate right possession must modern law prove absolute title cf fleming law tort 8th edn p 67 fleming also writes p 64 plaintiff action conversion must either actual possession entitled immediate possession good 39 order discharge onus dr baxter relied upon evidence relating creation interior submitted evidence miss casey mr casey document doubt rather ceiling original casey company involved merger interior created undertake joint venture beton much shown shareholding interior addition head agreement document contemplates shared directorship clause 7 8 following contract hand contract negotiation date agreement transferred casey interior pty ltd current work progress 1st december 1989 transferred casey interior pty ltd 40 obviously sufficient unilaterally alter contract extant ceiling others point intention intention well publicised four day later circular 24 november 1989 hand miss casey relevant contracting party supplier others informed merger circular indicated henceforth account held name ceiling would transferred interior evidence whilst ceiling continued exist legally 1 december 1989 business payment received respect outstanding account paid interior account spirit head agreement circular 41 dr baxter relied upon established circumstance submit relevant time interior entitled csc cheque hence proceeds find agreement plaintiff rebutted plea relied upon defendant arrangement practice ceiling interior meant time plaintiff immediate right possession cheque would facilitated ceiling defendant converted csc cheque action 5 june 1991 measure loss sustained plaintiff consequence thereof sum money taken defendant clear interior account 8 924 18 42 discussion miss casey mr stefani effect would ensure defendant paid fund became available csc assistance defendant time defendant took fund winding order made irrespective payee cheque interior entitled immediate possession cheque virtue commercial arrangement ceiling interior put place november 1989 acted upon thereafter 43 plaintiff judgment april payment converted sum aggregate 54 617 85 shall hear counsel interest cost
Sigley & De Santis and Ors (No. 4) [2020] FamCA 903 (21 October 2020).txt	sigley de santis or 4 2020 famca 903 21 october 2020 last updated 5 november 2020family court australiasigley de santis or 4 2020 famca 903family law practice procedure pleading amendment sought applicant trial well underway yet party log jammed pleading amendment latest version imprecise unclear advancing allegation akin fraud held leave replead term proposed amendment refused leave replead given corporation act 2001 cth 601ad 2 family law act 1975 cth s 80 114property law act 1958 vic 53 1 b aon risk service australia ltd v australian national university 2009 239 clr 175ascot investment pty ltd v harper harper 1981 148 clr 377banque commerciale sa en liqn v akhil holding ltd 1990 169 clr 279bass v permanent trustee group co ltd 1999 hca 9 1999 198 clr 334gissing v gissing 1970 ukhl 3 1971 ac 886goodridge beadle 2017 fcca 3219 2017 57 fam lr 425jacobson v ross 1995 vicrp 24 1995 1 vr 337miller v cameron 1936 hca 13 1936 54 clr 572re j gp 2006 famca 150 2006 35 fam lr 88secretary department social security v james 1990 fca 150 1990 95 alr 615sigley de santis 2019 famca 271sigley de santis 2 2019 famca 596tarkington pty ltd v kingdrake pty ltd 2000 vsca 98tepko pty ltd v water board 2001 206 clr 1white v overland 2001 fca 1333applicant m sigleyfirst respondent mr de santissecond respondent q pty ltd trustee q discretionary trustthird respondent r pty ltd trustee de santis family trustfourth respondent mr de santisfifth sixth respondent mr mr u liquidator e pty ltd liquidation seventh respondent de santis family investment pty ltd trustee e superannuation fundeighth respondent v partner pty ltd formerly p partner pty ltd ninth respondent w pty ltdtenth respondent x pty ltd trustee trust child mr m de santiseleventh respondent e6 pty ltdtwelfth respondent m de santis also known m bb de santis thirteenth respondent e pty ltdfourteenth respondent mr aa de santisfifteenth respondent m ee de santissixteenth respondent m dd de santisseventeenth respondent m aa de santisfile number mlc9296of2015date delivered 21 october 2020place delivered melbourneplace heard melbournejudgment wilson jhearing date 15 16 19 20 21 october 2020representationcounsel applicant mr j st john qc mr p agardy mr hutchingssolicitor applicant peter szabo family lawcounsel first respondent appearancesolicitor first respondent appearancecounsel second respondent appearancesolicitor second respondent appearancecounsel third respondent mr bongiornosolicitor third respondent berry family lawcounsel fourth respondent mr bongiornosolicitor fourth respondent berry family lawcounsel fifth sixth respondent dr trichardtsolicitor fifth sixth respondent charles fice solicitorscounsel seventh respondent mr bongiornosolicitor seventh respondent berry family lawcounsel eighth respondent appearancesolicitor eighth respondent v partner pty ltdcounsel ninth respondent appearancesolicitor ninth respondent berry family lawcounsel tenth respondent mr bongiornosolicitor tenth respondent berry family lawcounsel eleventh respondent mr bongiornosolicitor eleventh respondent berry family lawcounsel twelfth respondent mr wilsonsolicitor twelfth respondent kcl lawcounsel thirteenth respondent appearancesolicitor thirteenth respondent charles fice solicitorscounsel fourteenth respondent mr bongiornosolicitor fourteenth respondent berry family lawcounsel fifteenth respondent mr bongiornosolicitor fifteenth respondent berry family lawcounsel sixteenth respondent mr bongiornosolicitor sixteenth respondent berry family lawcounsel seventeenth respondent mr bongiornosolicitor seventeenth respondent berry family laworders 1 refuse leave applicant make amendment sought applicant amended camsoc proposed 19 october 2020 2 applicant leave amend camsoc must file serve proposed amended camsoc noon 22 october 2020 3 argument whether grant leave arising amended camsoc adjourned 2 15pm 22 october 2020 4 cost thrown away reason application reserved note form order subject entry order court record notedthat publication judgment court pseudonymsigley de santishas approved chief justice pursuant tos 121 9 g thefamily law act 1975 cth note copy court reason judgment may subject review remedy minor typographical grammatical error r 17 02a b thefamily law rule 2004 cth record variation order pursuant r 17 02family law rule 2004 cth family court australia melbournefile number mlc 9296 2015ms sigleyapplicantandmr de santisfirst respondentandq pty ltd trustee q discretionary trustsecond respondentandr pty ltd trustee de santis family trustthird respondentandmr de santisfourth respondentandmr mr u liquidator e pty ltd liquidation fifth sixth respondentsandde santis family investment pty ltd trustee e superannuation fundseventh respondentandv partner pty ltd formerly p partner pty ltd eighth respondentandw pty ltdninth respondentandx pty ltd trustee trust child mr m de santistenth respondentande6 pty ltdeleventh respondentandms de santis also known m bb de santis twelfth respondentande pty ltdthirteenth respondentandmr aa de santisfourteenth respondentandms ee de santisfifteenth respondentandms dd de santissixteenth respondentandms aa de santisseventeenth respondentex tempore reason judgmentintroductionwhen applicant commenced trial proceeding 15 october 2020 relied latest version amended statement claim counsel mr st john qc mr p agardy mr hutchings called consolidated amended statement claim elsewhere described acronym camsoc counsel heard open case behalf client objection taken claim made camsoc fifth sixth respondent liquidator thirteenth respondent e pty lid liq far reaching debate dr trichardt appeared liquidator mr st john qc mr bongiorno mr wilson earlier reason recorded appearance indicated mr st john willing permit applicant advance proposed amendment allegation camsoc liquidator insofar required liquidator take positive step especially recorded paragraph 23a amendment proposed second day trial proposed paragraph 23athe debate focused consequence liquidator led believe role trial proceeding largely peripheral regard fact excused participating proceeding regard fact winding e pty ltd liq nearly complete dr trichardt submitted liquidator proceeded since reason dated 3 may 2019 1 basis liquidator likely involved argument concerning cost otherwise relief ongoing nature sought trial proceeding proposed new paragraph 23a mr st john qc wished advance proposed amendment emailed associate 16 october 2020 following term 23a liberty reserved applicant make application consequential order arising finding court dr trichardt submitted client lulled false sense security word participating litigation essentially since may 2019 find applicant proposed new paragraph 23a wished preserve entitlement open litigation finding made following trial proceeding dr trichardt described situation preposterous word said many month proceeded basis client would await conclusion trial applying cost otherwise involved litigation mr st john qc announced client may forced apply injunction prevent liquidator appropriating use benefit whatever fund held indicated might applied towards cost debate emerged whether competent applicant member creditor e pty ltd liq apply order preparation amended account company dr trichardt submitted e pty ltd liq nearly fully wound order inappropriate behalf several client represented mr bongiorno opposed application amend camsoc incorporate paragraph 23a relied three main base form proposed amendment practical consequence amendment leave given amend andthe circumstance amendment sought form proposed amendment mr bongiorno submitted paragraph 23a failed comply conventional requirement pleading setting material fact relief prayed aid sought contended paragraph 23a raised unconventional issue especially nature case management issue reason trial held issue subsequent litigation conducted arising finding court highlighting two piece litigation envisaged set fact far practical consequence proposed amendment paragraph 23a concerned mr bongiorno raised jurisdictional issue drew analogy application trial preliminary issue learning case astepko pty ltd v water board 2 bass v permanent trustee group co ltd 3 andjacobson v ross 4 generally unfavourably disposed towards course far circumstance proposed amendment raised concerned mr bongiorno argued factual basis proposed paragraph 23a put forward well known applicant representative prior 16 october 2020 yet paragraph 23a raised first time second day trial upon raised mr bongiorno said proposed amendment vague akin fishing pleaded allegation related set lack clarity militated grant leave permitting go forward said proposed new paragraph 23a lacked forensic focus impossible tell direction case would go amendment granted close debate 16 october 2020 mr st john sought undertaking dr trichardt effect liquidator would appropriate sum held trust order 104 000 cost without notice applicant dr trichardt stated open court able contact liquidator obtain instruction give undertaking mr st john said absence undertaking proffered may forced apply injunction restraining liquidator disbursing fund without formally ruling application amend include proposed paragraph 23a invited mr st john consider matter put state whether elected motion withdraw proposed amendment paragraph 23a leave replead whether wished rule application leave amend incorporate paragraph 23a mr st john said sought replead abandoned application amend incorporate paragraph 23a granted leave replead applicant 19 october 2020 camsocon morning third day trial proceeding mr st john qc applied leave file serve applicant latest version camsoc debate whether allow amendment made took whole third day allocated trial proceeding end day third day trial opening made evidence led case foot since 2015 commencement trial variety judge hearing interlocutory application le 46 separate occasion emblematic way litigation conducted even recognising complex claim cross claim made litigation main focus section pleading headed liquidation thirteenth respondent paragraph 79 82 paragraph 13a prayer relief amendment made latest version camsoc included correctly describing company liquidation use suffix liq addition information paragraph 12a relation loan facility luxury motor vehicle deletion paragraph 21 deletion reference de santis family investment pty ltd paragraph 23 cosmetic amendment entirely new collection allegation ownership x street suburb ff q pty ltd reposed paragraph 59a 60 matter concern mr wilson client paragraph 80 deletion reference x pty ltd insertion lieu thereof e pty ltd liquidation wholesale deletion paragraph 121 122 123 andthe hotly contested paragraph 13a prayer relief debate whether allow new version camsoc proceed occupied entire third day trial proceeding part fourth day fourth day trial proceeding two thing patently obvious case first despite litigation foot five year applicant continuing encounter real obstacle proper efficient articulation claim made respondent second obvious matter respondent entitled confining applicant strictly case applicant brought respondent provoked submission behalf applicant family law litigation court applicant held strictly pleading case fought commercial court certain sympathy submission reminiscent contention urged long line case culminating ingissing v gissing 5 house lord invited hold constructive trust argument married person wholly different commercial case case since decision insigley de santis 2 6 pleading ordered case stood outside majority case court proceed way pleading claim advanced applicant respondent complex fact law many occasion debate since trial proceeding commenced mr st john qc attempted persuade applicant case respondent well known respondent claim advance respondent affidavit form document produced subpoena expert report produced thus far share mr st john simplification claim client advance core mr st john relies call camsoc scheme argued understood ruse improper arrangement many respondent participated render hollow applicant claim enforce financial agreement first respondent allegation ought lightly made applicant required prove allegation precise term precise content allegation put respondent vague inexact woolly loose imprecise assertion suffice say detail claim put respondent found somewhere mountain affidavit material case inadequate equally insufficient mr st john deflect pleading complaint response expert mr c whose two compendious affidavit survived challenge repository information applicant relies view applicant approach towards pleading case respondent le optimal mind respondent entitled complain deficiency applicant pleading even third fourth day trial proceeding answer applicant brought proceeding alleging sham transaction contend detail claim somehow lie bundle affidavit report filed lead trial approach circumvents purpose function pleading broad term allegation concerning liquidation e pty ltd liq involved applicant contention mr de santis son mr de santis grandfather mr aa de santis director e pty ltd liquidation approved account account represent true financial position company mr bongiorno contended pleading akin allegation fraud passage address situation relevance paragraph 80 lie connection paragraph 13a prayer relief paragraph entirely new necessary set term 13a first third respondent applicable fourth respondent act thing sign document necessary ensure proper realization asset e pty ltd liquidation including limited causing new account prepared properly reflect asset liability e pty ltd liquidation b extent lawfully possible causing liquidator act corrected accurate account c appointing new liquidator whether replacing current liquidator subsequent conclusion current liquidation pursuing action law recover unpaid amount payable e pty ltd liquidation available shareholder paragraph 13b prayer relief adjunct subparagraph 13a paragraph 13b applicant claimed following 13b first third applicable fourth respondent sign document may required authorize enable applicant name first respondent act thing required give effect paragraph 13 13a order mr bongiorno focused first paragraph 80 made several point way criticism paragraph particular order priority follows contention person mentioned approved account accurately represent thirteenth respondent financial position connected word including giving accounting effect purported transaction use word including word followed embarrassing allegation account approved accurately reflect company true financial position required particular order see inaccuracy alleged andan allegation account accurately reflect company true financial position akin allegation fraud least misrepresentation mr bongiorno focused paragraph 82 camsoc following term accounting thirteenth respondent described paragraph 80 hereof subject ongoing investigation mr bongiorno said paragraph 82 added nothing mr bongiorno addressed paragraph 13a prayer relief submitted defective several way including reference third line including limited inadequate failed set act thing done ensure proper realisation asset company liquidation prayer first three line paragraph 13a failed set power court grant relief sought generally paragraph word paragraph 13a b causing new account prepared properly reflect injected uncertainty nowhere said account would answer description properly use word properly paragraph 13a pleading failed disclose currently proper account legislative basis order sought paragraph 13a set especially thecorporations act andin event winding e pty ltd come end similar assault made paragraph 13a b prayer relief mr bongiorno submitted follows relation subparagraph word effect lawfully possible meaningless word causing liquidator act likewise meaningless andin event liquidator mr bongiorno asserted required consider putting company liquidation insolvency far paragraph 13a c prayer relief concerned mr bongiorno asserted nowhere applicant plead power allegedly reposed court appoint new liquidator doubt exists power exists allegation paragraph 13a c mr bongiorno submitted court power command particular cause action pursued liquidator prayer relief subparagraph 13a c legal foundation mr bongiorno focused prejudice paragraph 80 paragraph 13a prayer relief occasioned client said applicant maintaining inconsistent position abandoning contention sale undervalue paragraph 119 120 camsoc yet concurrently pressed pleading paragraph 80 certain respondent approved account thirteenth respondent accurately represent thirteenth respondent financial position mr bongiorno referred report mr kk accountant dated 31 july 2019 especially paragraph 46 59 submitted unclear precisely mr kk pressing event mr bongiorno argued leave amend granted incorporate proposed paragraph 80 paragraph 13a b prayer relief mr bongiorno client would need obtain expert evidence contradict contention advanced mr kk conversely mr bongiorno said leave amend paragraph 13a refused new evidence required way summary mr bongiorno argued leave amend relation paragraph 80 82 well paragraph 13a 13b prayer relief refused paragraph 80 82 support relief sought paragraph 13a 13b prayer relief paragraph 13a b prayer relief misconceived relevant jurisdiction exercised set court presume jurisdiction extent member company liquidation controlled liquidation e pty ltd liq applicant member creditor company power apply relief sought court power order relief sought forensic unfairness exists way applicant proposes proceed paragraph 13a 13b without corresponding right mr bongiorno client obtain independent expert advice andno explanation delay bringing amendment offered behalf applicant position m de santisthe position twelfth respondent m de santis focused x street suburb ff version camsoc foot immediately prior commencement trial 15 october 2020 applicant alleged paragraph 59 since 20 september 2015 second respondent registered proprietor x street suburb ff paragraph 60 applicant alleged primary asset trust defined mean paragraph 57 camsoc trust child mr m de santis version camsoc produced 10am 19 october 2020 various amendment proposed paragraph 59 following deletion reference second respondent registered proprietor x street suburb ff since 20 september 2005 additional paragraph 59a include reference deregistration second respondent 20 february 2017 inclusion paragraph 59a legal beneficial ownership x street held second respondent reference particular subjoined paragraph 59a written declaration trust required bys 53 1 b theproperty law act new contention paragraph 59b x street held trust second respondent x street vested asic pursuant tos 601ad 2 thecorporations act new contention paragraph 59c pursuant tos 601ah 5 thecorporations actupon reinstatement registration second respondent ownership beneficial interest x street restored though deregistration never occurred andthe new contention amended paragraph 60 x street held trust primary asset trust x street mr wilson appeared m de santis submitted newly cast paragraph 59 59a 59b 59c new 60 different applicant proposed paragraph 60a put forward day two trial omitting particular paragraph 60a following term alternatively second respondent legal beneficial owner x street mr wilson submitted lead trial proceeding revision paragraph 59 59a 59b 59c 60 produced amended application 19 october 2020 version paragraph 59 60 appeared annexure affidavit mr szabo affidavit made 6 october 2020 mr wilson submitted leave granted amend term proposed case prolonged debate ownership asset say whether absolutely second respondent representative capacity trustee trust child mr m de santis applicant asserts land x street held trust yet state paragraph 59a written declaration trust exists according thesecretary department social security v james 7 well asre j gp 8 requirement writing may satisfied combination document capable read together informal writing may stand evidence existence trust yet applicant squarely pleads written declaration trust exists case foot since 2015 involving 46 interlocutory appearance since august 2019 paragraph 60 appeared manner immediately preceding proposed amendment leave sought morning third day trial according toaon risk service australia ltd v australian national university 9 party automatic entitlement amend considering whether allow proposed amendment court must weigh delay wasted cost case management issue nature importance proposed amendment stage litigation reached amendment sought explanation delay andirremedial prejudice caused party seeking uphold trust child mr de santis mr aa de santis amendment allowed applicant replymr st john qc raised matter guise point reply correctly proposition support application leave amend yet fundamental issue arose mr st john submission namely unwillingness recognise case ordered proceed pleading contention client case understood reference pleading reference affidavit material filed far brought mr st john attention passage last two sentence paragraph 8 reason 27 august 2019 decision 10 pointed inmiller v cameron 11 high court held pleading define issue decision litigation thereby enable relevance admissibility evidence determined trial andrelief generally confined available pleading held inbanque commerciale sa en liqn v akhil holding ltd 12 mr st john submitted mr c evidence 16 april 2020 affidavit sufficient respondent know forensic evidence applicant proceeded need pointed mr c affidavit 16 april 2020 exhibit 78 page length 4 september 2020 affidavit 74 page length task respondent attempt guess detail pleading reference content dense highly technical affidavit found mr st john contention regard utility entirely overlooked purpose function pleading mr st john submitted paragraph 80 subject request better particular also submitted gravamen factual matter underpinning paragraph 80 covered mr c affidavit reason already canvassed two paragraph immediately preceding one reject submission mr st john submitted wrong mr bongiorno argue paragraph 80 83 represented jigging applicant contention mr st john submitted could misunderstanding client case event previous complaint made paragraph 80 defence take issue sufficiency enquired mr st john could make submission view fact many respondent simply deny paragraph 80 mr st john submitted reply prejudice occasioned respondent amendment proposed say jigging involved said anything new amendment expanded matter previously pleaded affidavit material showed case paragraph 80 applicant cast case far power court make order sought paragraph 13a following prayer relief concerned mr st john submitted gibbs j dealt court power inascot investment pty ltd v harper harper 13 insofar prejudice mr wilson client concerned mr st john posed rhetorical question m de santis prejudiced said question legal ownership x street question law mr st john contended deficiency exist statement claim deficiency visited upon applicant waited five year case tried mr st john sought opportunity conferring junior mr agardy closing address especially ensure matter bearing upon company law exhaustively put allowed mr agardy address 20 october 2020 adjourning 19 october 2020 mr bongiorno brought attention observation allsop j chief justice inwhite v overland 14 honour spoke discouraging term practice litigation leaving footprint correspondence uncovered later time attempt reveal particular matter always issue honour said following however way general principlei would simply like make perfectly plain view efficient proper conduct civil litigation even civil litigation hard fought party always recognised propounding issue trial party take step toensurethat relevant party dispute cognisant issue practice quietly leaving footprint correspondence direction hearing uncovered time later attempt reveal matter always issue discouraged firmly even something said evident indeed suspected side proceeding basis misconception appreciated something general rule efficiency common sense appreciation cost resource public private likely wasted confusion litigation mandate party representativeensurethat proceeding misconception appreciate something said litigation game costly stressful though necessary evil tuesday 20 october 2020mr agardy address 20 october 2020 apparently elsewhere despite retained junior counsel case practice condone mr st john qc conducted two hour address course several matter arose namely applied amend paragraph 13a prayer relief opening word replaced first fourth fourteenth respondent act said word e pty ltd liq third line paragraph 13a paragraph end thereby deleting subparagraphs 13a b c said paragraph 13b amended opening word read first fourth fourteenth respondent sign document said new allegation paragraph 13a 13b involve allegation invoke thecorporations act argued head power purpose paragraph 13a 13b prayer relief i 80ands 114of thefamily law act submitted three director paragraph 13a 13b pleaded acted collusively word said engaged joint enterprise defeat order court argued prejudice suffered respondent grant leave amend said application amend pleading ordinary course pleading amendment allowed unless irretrievably prejudice party applicant carefully eschewed assertion paragraph 80 existence fraud applicant say three respondent say first fourth fourteenth respondent approved account e pty ltd prior putting voluntary liquidation account accurate andthe applicant remains unaware state mind three respondent approving account matter mere point reply fact amendment dictated verbally mr st john submission raised suspicion mind applicant camp state chaos approach pleading amendment mr bongiorno made collection submission seemed entitled given recent amendment urged fly mr bongiorno said deletion subparagraphs paragraph 13a rendered paragraph even vague unclear aspect paragraph 80 bear upon new allegation paragraph 13a 13b court jurisdiction make order director respect company liquidation director power assumed liquidator identified scheme alleged first fourth fourteenth respondent connotes misfeasance sort paragraph 22 pleading defines scheme include phrase deliberately intended defeat existing order fanciful applicant assert approval e pty ltd account part scheme alleged andit equally fanciful applicant suggest approval account e pty ltd involve wrongdoing mr wilson also replied submitted allegation concerning trust child mr m de santis placed court allegation marshalled pleading issue raised concerning trust held manner alleged held contention considered application amend considerationmr st john qc submitted application amend pleading allowed unless irretrievable prejudice caused test test stated inaon risk service australia ltd v australian national university 15 relevantly paraphrased considering whether allow proposed amendment court must weigh delay wasted cost case management issue nature importance proposed amendment stage relevant litigation reached amendment sought explanation delay amendment application urged fourth day trial context case foot five year 46 discrete application heard member court real explanation offered delay bringing amendment application day find remarkable point subject amendment apparent applicant legal advisor element called scheme must obvious applicant legal advisor prior fourth day trial scheme feature prominently applicant case find beyond comprehension paragraph 80 featuring pivotal component scheme amended fourth day trial consider acceptable position applicant maintain identity three key participant step identified paragraph 80 emerged first time fourth day trial accept proper correct applicant point lengthy 16 april 2020 affidavit mr c assert element embedded pleading paragraph 80 found somewhere affidavit adopt course wholly misconceives purpose function pleading applicant required properly plead case relies respondent required guess case alleged volume affidavit attempt backfill think case might applicant adopted cavalier approach discharge obligation pleading case naturally legally trained cannot supposed know subtlety advancing complex case exemplar relied legal advisor guide sadly adopted curious approach task pleading case respondent taken applicant task point entitlement task ensure fair trial conducted take view unfair trial set train allow amendment sought say following reason embedded deeply paragraph 80 assertion named person approved account approved account represent true financial picture e pty ltd approval account necessary precursor e pty ltd placed liquidation account approved e pty ltd placed liquidation placing e pty ltd liquidation part scheme alleged paragraph 22 axiomatically pleading proceeds premise placing company liquidation part scheme therefore part misfeasance approval account precursor placing company liquidation likewise part scheme therefore involving misfeasance whether described using word fraud artificial applicant contend applicant seeking impugn legitimacy conduct first fourth fourteenth respondent ingoodridge beadle 16 canvassed allegation fraud allegation akin fraud require exquisite attention pleading take view mr bongiorno correct characterisation paragraph 80 absence precise exhaustive articulation act fact matter circumstance thing go make allegation paragraph 80 paragraph allowed go forward significance matter set paragraph 80 component scheme alleged paragraph 22 cannot overlooked sufficient applicant say particular support paragraph 80 found somewhere among 78 page mr c 16 april 2020 affidavit respondent guess way applicant cast case respondent pleading form critical role litigation especially defining issue fall determination high court held inmiller v cameron 17 inbanque commerciale sa en liqn v akhil holding ltd 18 collusive conduct alleged mr st john said involves allegation state mind according orthodox theory pleader must plead state mind paragraph 80 descend level andif paragraph 80 recital detail 16 april 2020 affidavit mr c relevant portion affidavit extracted yet next necessary go paragraph 13a 13b prayer relief several thing must said allegation paragraph special order remarkable mr st john qc day four trial junior announced submitting issue company law instead informed court paragraph 13a abandoned legislative basis whether thecorporations actor thefamily law actwas pleaded providing source power make order sought even truncated form entertain real doubt thats 80ors 114of thefamily law actconferred power order person one time director e pty ltd prior placed voluntary liquidation act thing sign document necessary ensure proper realisation asset e pty ltd liquidation since liquidator e pty ltd appointed power authority director company suspended power assumed liquidator notion ordering former director thing ensure proper realisation asset company devoid content court ordinarily make order incapable meaningful enforcement paragraph 13b meaningless legislative basis making order given purpose thecorporations act andi agree observation high court inascot investment pty ltd v harper harper 19 provide enabling power make order paragraph 13a 13b proposed amendment relation x pty ltd better understand factual setting claim x street necessary recognise q pty ltd registered proprietor x street land particularly described certificate title volume folio q pty ltd deregistered 20 february 2017 andpursuant tosection 601ad 2 thecorporations act asset owned q pty ltd vest asic consequent upon deregistration thing presently stand reason deregistration q pty ltd ceased exist date deregistration 20 paragraph 59b amended camsoc proposed 19 october 2020 applicant asserted x street held trust x street vested asic accept conditional nature assertion x street asset owned q pty ltd company deregistered ceased exist property real personal owned vest asic paragraph 59b contains legal non sequitur pleading allowed go forward amendment allowed criterion prescribed byaon risk service australia ltd v australian national university 21 met plusa purpose served amendment conversely pleading amended advance claim maintainable law useful purpose gained grant leave make amendment view useful purpose gained proposed amendment document produced consideration 19 october 2020 refuse leave allow amendment sought document recognising applicant shut altogether seeking leave make amendment may advised make grant applicant leave amend manner may advised long applicant file serf proposed amended camsoc noon 22 october 2020 hear argument whether grant leave 2 15pm 22 october 2020 cost thrown away reason application reserved certify preceding sixty three 63 paragraph true copy reason judgment honourable justice wilson delivered 21 october 2020 associate date 27 october 2020 1 sigley de santis 2019 famca 271 2 2001 206 clr 1 3 1999 hca 9 1999 198 clr 334 4 1995 vicrp 24 1995 1 vr 337 5 1970 ukhl 3 1971 ac 886 6 2019 famca 596 7 1990 fca 150 1990 95 alr 615 622 8 2006 famca 150 2006 35 fam lr 88 9 2009 239 clr 175 10 sigley de santis 2 2019 famca 596 11 1936 hca 13 1936 54 clr 572 12 1990 169 clr 279 13 1981 148 clr 377 14 2001 fca 1333 15 2009 239 clr 175 16 2017 fcca 3219 2017 57 fam lr 425 112 et seq following 17 1936 hca 13 1936 54 clr 572 18 1990 169 clr 279 19 1981 148 clr 377 20 seetarkington pty ltd v kingdrake pty ltd 2000 vsca 98 15 21 2009 239 clr 175
Industrial Relations Commission Decision 1675_1995 [1995] AIRC 1500; (24 July 1995).txt	industrial relation commission decision 1675 1995 1995 airc 1500 24 july 1995 industrial relation commission decision 1675 1995 o0115 dec 1675 95 print m3766 australian industrial relation commissionindustrial relation act 1988s 170ma certification agreement metal trade industry association australia another automotive food metal engineering printing kindred industry union another c 21210 1995 otis australia minto site certified agreement 1995 metal engineering employee metal industry condition employment certified agreement 170maindustrialrelations act 1988 metal engineering employee metal industry principle satisfied otis australia minto site certified agreement 1995 certified senior deputy president marsh sydney 24 july 1995 reason decision reason decision augment decision given matter transcript 22 may 1995 otis elevator company pty ltd automotive food metal engineering printing kindred industry union amwu communication electrical electronic energy information postal plumbing allied service union australia cepu applied pursuant 170ma theindustrial relation act 1988for certification agreement known otis australia minto site certified agreement 1995 satisfied party complied requirement rule 30a filing requisite statutory declaration signed roger patrick boland behalf company david walter goodger bert schmidt behalf union basis submission made party content statutory declaration term agreement satisfied requirement 170mb 1 met amwu cepu union respondent award coverage site requirement 170mc act met ground refusing certify agreement 170md requirement 170mg 3 complied particular relevant employee defined act seven woman six whose first language non english three person age 21 year nil aboriginal torres strait islander nil disabled person nil part time employee nil casual employee accordance 170mg 3 employee consulted agreement informed term intention apply certification effect term explained including procedure preventing settling disputation indicated transcript agreement certified come force first pay period commence 22 may 1995 remain force period twelve month commission senior deputy president appearance f cole metal trade industry association australia behalf otis elevator company pty ltd g warren c manion bourne behalf automotive food metal engineering printing kindred industry union g bacic behalf communication electrical electronic energy information postal plumbing allied service union australia hearing detail 1995 sydney may 22 end text end text
Samootin v St George Bank Limited [2003] NSWCA 32 (14 February 2003).txt	samootin v st george bank limited 2003 nswca 32 14 february 2003 last updated 24 february 2003new south wale court appealcitation samootin v st george bank limited 2003 nswca 32file number 40600 02hearing date 14 february 2003judgment date 14 02 2003parties alexandra samootin claimantst george bank limited opponentjudgment stein ja hodgson jalower court jurisdiction supreme court equity divisionlower court file number ed2446 02lower court judicial officer windeyer jcounsel claimant self representedmr burchett opponentsolicitors solicitor st george bank sydney opponentcatchwords appeal summary dismissal whether leave appeal granted legislation cited decision application dismissed cost judgment supreme courtof new south walescourt appealca 406002 02ed 2446 02stein jahodgson jafriday 14 february 2003samootin v st george bank limitedjudgment1stein ja ask hodgson ja deliver first judgment court application 2hodgson ja 12 april 2002 proceeding 1973 2001 samootin v shea or master mclaughlin made following order 1 order plaintiff commences proceeding court st george bank limited related subject matter present proceeding summons new proceeding made returnable justice palmer expedited list 7 june 2002 2 direct plaintiff file serve affidavit chief 4pm 22 may 2002 fifth defendant file serve affidavit reply 4pm 19 june 2002 3 order notice motion filed plaintiff 11 april 2002 otherwise dismissed 4 order cost aforesaid notice motion cost proceeding 3 29 april 2002 claimant alexandra samootin commenced proceeding 2446 2002 opponent st george bank limited document entitled notice summons pursuant order court made friday 12 april 2002 claiming following order 1 november 1997 st george bank limited involved transferring home monies 263 309 79 shea samootin marriage relationship possession mr peter john dean company title shea dealite pty ltd known loan design pty ltd acn 080 650 568 r dean pty ltd acn 000 604 624 order defraud possession home marital monies without authorisation knowledge 2 order st george bank joined party proceeding 1973 01 3 order contract drawn two property 24 26 oxford fall road beacon hill declared void 4 order mortgage st george bank limited property 24 26 oxford fall road beacon hill rescinded 5 order amount 263 309 79 restored back alexandra samootin home 26 oxford fall road beacon hill 6 order alexandra samootin declared rightful registered owner home land title office queen square sydney 7 order samootin permitted take loan balance purchase price property 26 oxford fall road beacon hill nsw 2100 e 101 691 21 purchase price october 1997 365 000 8 cost paid defendant 4 7 june 2002 opponent brought notice motion seeking following order l summons summarily dismissed struck whole part pursuant part 13 rule 5 part 15 rule 26 part 65 rule 5 2 alternatively addition affidavit alexandra samootin support struck whole part pursuant part 65 rule 5 3 cost 5 notice motion heard windeyer j 17 june 2002 decided day honour ordered proceeding 2446 2002 dismissed cost claimant seek leave appeal decision 6 commence outline circumstance lie behind proceeding application 7 28 october 1997 claimant obtained cheque 226 809 79 solicitor miss wagner settlement proceeds sale house mona vale jointly owned claimant ex husband mr shea claimant paid cheque bank account mr shea 8 seems proceeds sale mona vale house also included deposit 36 500 entirely clear exactly money dealt 9 claimant say arrangement mr shea proceeds sale used purchase house property 26 oxford fall road beacon hill joint name claimant mr shea fact moved house november 1997 claimant lived ever since 10 however property fact purchased name company shea dealite pty limited apparently owned mr peter john dean purchased company together adjoining property 24 oxford fall road assistance loan 610 000 advance bank australia limited represented opponent 11 security loan given mortgage 24 26 oxford fall road also another property 33a oxford fall road property owned mr dean interest associated 12 appears purchase price property 370 000 24 oxford fall road 365 000 26 oxford fall road making total 735 000 claimant say proceeds sale mona vale house used purchase put caveat title number 24 26 oxford fall road february 1998 13 according claimant middle 1998 mr shea agreed benefit whatever interest property evidence document apparently provided mr shea solicitor contains following statement position willing negotiate settlement court assistance whereby alex shared joint land property name including present vehicle subject hire purchase agreement personal possession except sum 20 000 seeking property settlement 14 appears december 1998 sum little 600 000 plus overdraft 36 000 owing security property however march 1999 33a oxford fall road sold appears proceeds sale 420 000 paid mortgage march 1999 informed mr burchett appears opponent amount owing security mortgage 230 000 15 claimant brought proceeding 1973 2001 equity division mr shea mr dean shea dealite pty limited alleging fraud seeking order inter alia effect giving benefit interest proceeds sale mona vale home entitlement regard home namely 26 oxford fall road beacon hill 16 appears application made proceeding join opponent proceeding returnable 25 may 2001 pursued 22 june 2001 claimant filed notice motion proceeding seeking join opponent miss wagner apparently pursued notice motion join party made 28 november 2001 15 october 2001 registrar berecry gave leave join miss wagner grant application relation opponent entirely clear whether addressed application 17 26 november 2001 notice motion join opponent heard master berecry 25 february apparently refused led application master mclaughlin resulted order made 12 april 2002 referred earlier order led commencement proceeding mentioned earlier 18 windeyer j gave following reason decision dismiss proceeding honour matter defendant seek order summons dismissed pursuant part 13 rule 5 alternatively relief sought necessary go 2 plaintiff mr samootin document called notice summons seeking order first st george bank joined party proceeding 1973 01 made application achieve result failed cannot bring application proceeding 3 secondly claim order contract sale two property beacon hill declared void relief least relief seeking proceeding therefore subject new proceeding 4 next seek order mortgage defendant bank rescinded may inappropriate expression deal claim mortgage declared void set aside 5 claim declared rightful owner home property 26 oxford fall road beacon hill 6 seems clear affidavit plaintiff endeavouring set aside certain transaction ground transaction intent defraud prior interest particular property result fraud former husband another person mr dean benefited 7 apparently attempt connect st george bank limited fraud basis understand lent monies security property without complying term internal document relating approval mortgage loan word mr samootin wish court find deprived share monies produced sale former matrimonial home property purchased without one purchaser bank advanced monies purchaser purchaser obtained interest fraud bank way connected fraud 8 document commencing proceeding would struck event doubt claim would fully pleaded question though whether proceeding dismissed basis doomed fail 9 best evidence mr samootin nothing would go establish bank knowledge fraud mr samootin ought pursuing claim expedition list former husband mr dean think shea delight pty ltd successful obtain measure relief 10 satisfied present proceeding cannot succeed probably correct say abuse process application made proceeding join bank without evidence still evidence would support joinder circumstance order proceeding dismissed cost exhibit returned 19 proceeding 1973 2001 progressed towards hearing presently fixed hearing five day commence 24 march 2003 understand caveat previously lodged claimant property 24 26 oxford fall road replaced injunction appears mr dean company applying injunction lifted view dealing property 20 claimant seek leave appeal court following ground 1 honour incorrectly stated seems clear affidavit plaintiff endeavouring set aside certain transaction ground transaction intent defraud prior interest particular property result fraud former husband another person mr dean benefited 2 apparently attempt connect st george bank fraud basis understand lent monies security property without complying term internal document relating approval mortgage loan word mr samootin wish court find deprived share monies produced sale former matrimonial home property purchased without one purchaser bank advanced monies purchaser purchaser obtained interest fraud bank way connected fraud 3 honour considered relevant factor complex case 4 relevant fact case follows claimant ex husband mr c g shea sold former home 82 waterview street mona vale joint tenancy 22 10 97 claimant mr c g shea given instruction wagner solicitor northern beach legal service purchase property 26 oxford fails road beacon hill joint tenancy 24 10 97 unknown claimant solicitor wagner drawn first contract mr shea name claimant mr shea moved 26 oxford fall road beacon hill licence 24 10 97 settlement date set 15 11 97 25 10 97 unknown claimant mr shea agreed mr peter john dean purchase joint name property 24 26 oxford fall road beacon hill utilising sale monies claimant ex husband former home net proceeds 261 809 79 5 unknown claimant second contract name shea dealite pty ltd drawn home 26 oxford fall road beacon hill 7 11 97 shortly afterwards november 1997 contract name shea dealite pty ltd drawn property 24 oxford fall road beacon hill 6 unknown claimant mr c g shea known st george bank limited two property purchased benefit mr peter john dean companv r dean pty ltd proceeds sale monies former matrimonial home claimant ex husband r dean pty ltd shareholder company shea dealite pty ltd mr dean mr david mack listed shareholder r dean pty ltd mr david mack solicitor worked firm mallesons stephen jaques claimant ex husband signed mortgage document st george bank limited lead believe st george bank limited purchaser owner two said property equal shareholder mr dean company r dean pty ltd 7 claimant ex husband found june july 1998 two said property told claimant paying mortgage monies st george bank limited deceived bank belief owner equal share holder property purchased behalf claimant claimant ex husband told going pay something claimant knowledge ex husband paid st george bank limited mortgage monies said property june july 1998 claimant ex husband discussion concerning two said property ex husband told claimant agreeable let interest two said property could liked two said property ex husband told claimant would write letter solicitor mr joel hubbard telling transferred interest two property claimant claimant agreed proposal claimant husband wrote letter solicitor stating transferred interest two property 24 26 oxford fall road beacon hill claimant claimant ex husband gave copy letter claimant told ex husband going try get home monies back possession claimant husband agreed proposal 8 honour found st george bank limited engaged conduct misleading deceptive bank gave impression claimant ex husband purchaser shareholder two property 24 26 oxford fall road beacon hill induced claimant ex husband sign mortgage document property purchased monies owned claimant ex husband 9 honour found claimant ex husband transferred interest two property 24 26 oxford fall road beacon hill giving legal right claim possession asset wrongfully deprived 10 honour wrongly concluded claimant ex husband one purchaser said property benefited purchase two said property 11 honour wrongly concluded claimant seeking measure relief 12 honour given weight fact claimant seeking mortgage contract drawn 24 26 oxford fall road beacon hill declared void ab initio claimant seeking monies sale former matrimonial home returned namely 261 809 79 claimant seeking 261 809 79 utilised deposit payment home life namely 26 oxford fall road beacon hill clamant seeking mortgage drawn balance monies namely 98 190 24 bringing total monies purchase price 365 000 24 10 97 property 26 oxford fall road beacon hill 13 open honour find claimant made application join st george bank limited proceeding pursuant supreme court rule pt 8 r8 supreme court act 1970s63 14 open honour take note thesupreme court act 1970s63makes reference joining involved party matter dispute 15 open honour find claimant st george bank limited joined proceeding 1973 01 making application court case transferred federal court australia new south wale district registry 16 open honour claimant making application matter concerning st george bank limited giselle wagner northern beach legal service loan design pty ltd r dean pty ltd heard trade practice act section 51aa 52 80 94 2 87 ia 87 1ca 17 available evidence additional evidence honour mr justice windeyer namely evidence set affidavit alexandra samootin sworn 26 9 02 amended affidavit supporting amended summary argument affidavit alexandra samootin sworn 29 11 02 statement claim signed claimant 14 7 02 available hearing justifies setting aside honour judgment 21 claimant also seeking order effect hearing proceeding 1973 2001 proceed 24 march 2003 view proceeding dealt together proceeding opponent bank also seeking provision court continuation injunction although would seem matter dealt court without notice given party involved 1973 2001 22 grant leave appeal sought application matter discretion often dealt without attempt consider merit proposed appeal however case think appropriate look briefly merit proposed appeal 23 claimant submits windeyer j error finding proceeding could succeed reliance evidence windeyer j evidence presented u submitted documentary evidence suggesting bank guilty misleading conduct 52 trade practice act knew property question purchased money provided mr shea claimant money advanced security mortgage guaranteed mr shea put name company mr shea interest yet bank knowing thing advise mr shea put evidence suggesting mr shea misled necessary show intention bank mislead 24 claimant also relied hearsay evidence suggesting officer opponent may participated fraudulently putting false information opponent submitted happened transaction would gone ahead claimant would lost money 25 claimant submits action allowed proceed bank arrangement made heard together proceeding issue could dealt together required bys 63of thesupreme court actand pt 8 r 8 supreme court rule 26 noted earlier grant leave appeal discretionary would say outset even leave granted case would minded make order view ensuring proceeding heard together proceeding 1973 2001 set hearing commence 24 march 2003 think would effect back door reverse effect failure previous application join bank proceeding 27 furthermore even claimant made entitlement relief bank opinion would significant way affect claim proceeding 1973 2001 28 claim proceeding based application one half sum 263 000 could justify recovery amount interest property acquired amount together increase value property claimant may also entitled ensure similar relief given favour mr shea whether basis agreed entitlement alternatively could available claim family law act otherwise 29 matter stand claimant show effect defrauded mr dean company available satisfy claim two property 24 26 oxford fall road worth probably vicinity 1 million subject mortgage 230 000 bank 30 note incidentally present proposal mr dean company wish give effect removing injunction refinance mortgage way would leave 26 oxford fall road unencumbered seems may proposal went ahead would mean property claimant main interest would available disposed equity court proceeding see fit without regard outside mortgage 31 seems circumstance obtaining relief bank way necessary even significant way relevant relief claimed claimant proceeding 32 would make one comment proceeding aware precise applicable pleading proceeding suggested brought basis fraud would make comment mr samootin prof money husband money used purchase property even without proof fraud could entitle interest property basis resulting trust would expect would matter would dealt proceeding may desirable copy judgment provided defendant proceeding possibility relief sought basis take surprise 33 turning actual relief claimant wish obtain bank seems insofar claimant wish rely alleged misleading conduct particular conduct said mislead mr shea evidence extremely tenuous one view show mr shea expectation would interest company person involved company take appropriate step ensure interest event even shown mr shea misled seems would enough deprive bank entitlement recover money put purchase properly unless shown loss resulted present seems indication contrary namely money put property question resulted rather capital gain 34 similar comment think applicable claim officer bank involved misleading bank evidence tenuous extreme seems would significant remedy bank provision money purchase property led loss 35 circumstance think ground made grant discretionary remedy leave appeal windeyer j decision reason propose application dismissed cost 36stein ja agree hodgson ja reason order proposes mean need add little 37 shown error windeyer j judgment 17 june 2002 dismissed proceeding appears claimant simply evidence support claim opponent nature outlined court 38 would strongly recommend m samootin consider seeking assistance new south wale bar association pro bono scheme regard proceeding due commence equity division 24 march 2003 39 said agree order proposed hodgson ja court make order last updated 24 02 2003
Gorton v Boroondara CC [2001] VCAT 1719 (14 August 2001).txt	gorton v boroondara cc 2001 vcat 1719 14 august 2001 last updated 23 august 2001victorian civil administrative tribunalplanning list 2001 050022catchwordsplanning list application undersection 82of theplanning environment act 1987 alteration addition dwelling boroondara planning scheme mediationapplicants objectorsm c gorton j whiteheadrespondent permit applicantk j costanzoresponsible authorityboroondara city councilwhere heardat melbournebeforestruan gilfillan memberdate mediationwednesday 25th july 2001date order14 august 2001medium neutral citation 2001 vcat 1719subject land24 kent street keworderthe application review granted decision responsible authority modified planning permit term decision grant permit bor 00 01299 dated 23 april 2001 shall issue subject following amendment condition amend condition 1 b read b new window material second storey eastern elevation fixed obscure nature 1 6m first floor level ii add new condition 1 c notation referring east side garage brickwork ie facing neighbour dark brickwork reasonable satisfaction party responsible authority 1 balustrade north east south side first floor east side balcony 1 8m high obscure glass without gap 1 e east boundary fence new garage southern boundary new 2m high paling fence 1m high trellis iii add new condition 2 two closely abutting tree neighbour east wall new garage require special construction garage subject advice arborist engaged permit applicant tree question show serious sign distress within 12 month arborist attribute distress garage construction permit applicant shall pay cost two substitute tree purchased planted neighbour maximum cost 1 000 3 construction garage east boundary fence permit applicant shall provide dog proof temporary fence along boundary line 4 permit applicant shall ensure care taken avoid damage existing neighbouring vegetation 5 garage shall used accommodation purpose iv remember existing condition 2 condition 6 k struan gilfillanmemberappearancesmr bruce lancashire town planner appeared responsible authority mr giovanni gattini town planning advocate appeared permit applicant accompanied mr mr costanzo mr ian pridgeon solicitor russell kennedy appeared applicant objector accompanied mr gorton nature applicationapplication undersection 82of theplanning environment act1987
Wilson; Secretary, Department of Social Services and (Social services second review) [2020] AATA 6223 (19 August 2020).txt	wilson secretary department social service social service second review 2020 aata 6223 19 august 2020 last updated 1 august 2023wilson secretary department social service social service second review 2020 aata 6223 19 august 2020 division general divisionfile number 2019 7227re secretary department social servicesapplicantandcraig wilsonrespondentdecisiontribunal member marten kennedydate 19 august 2020place adelaidethe decision review set aside substituted decision affirming decision raise recover debt respect carer payment 14 917 44 raise recover debt 2 615 27 respect carer allowance carer supplement sgnd member marten kennedycatchwordssocial security carer payment carer allowance carer supplement overpayment debt arisen wholly partly debtor debt waived decision set aside substituted legislationsocial security act 1991social security administration act 1999reasons decisionmember marten kennedy19 august 2020the secretary applied review decision administrative appeal tribunal social service child support division aat1 27 september 2019 decision aat1 set aside decision raise recover overpayment care related payment mr wilson raised basis providing care m pacconi 31 december 2017 aat1 reached factual conclusion mr wilson longer caring m pacconi 10 august 2018 much later date date alleged secretary satisfied mr wilson notified hearing arrangement expressly informed writing hearing face face hearing brought attention mr wilson response recent courtesy contact made registry remind hearing response mr wilson made clear wish participate review tribunal may proceed absence party reasonable notice hearing section 40of theadministrative appeal tribunal act 1975 satisfied mr walker reasonable notice satisfied wish participate reinforced non attendance proceeded mr wilson absence legislative backgroundthe social security law make provision pension allowance supplement paid carers forcarer payment person qualified among requirement person personally provides constant care care receiver meet threshold care need assessed adult disability assessment tool section 198of thesocial security act 1991 act concept constant care elaborated upon departmental policy unnecessary elaborate upon light finding reached matter forcarer allowance disabled adult cared home shared carer person qualified among requirement relevantly care receiver receives care particular characteristic daily basis total least 20 hour per week section 954aof act 2018carer supplement person qualified receive carer supplement person paid instalment relevantly carer allowance carer payment 1 july 2018 section 992xof act effect time secretary must cancel suspend social security payment satisfied person qualified receive section 80of thesocial security administration act 1999 administration act cancellation determination may applied retrospectively recipient failed comply provision social security law obliging inform secretary information relevant payment sub section 118 7 administration act person entitled receive social security payment reason amount overpayment becomes debt due commonwealth section 1223 act person receives carer supplement receive instalment qualifying payment 1 july debt commonwealth arises connection instalment amount carer supplement would paid instalment paid debt due commonwealth order apply legislation outlined made factual determination mr wilson providing care m pacconi 31 december 2017 failed notify centrelink obliged evidence factual conclusion reason follow mr wilson provide care m pacconi 31 december 2017 debt due commonwealth regard summary mr wilson evidence aat1 reproduced aat1 decision record summary mr wilson mother evidence aat1 reproduced aat1 decision record statement made mr wilson t9 contains series name people bear witness fact mr wilson provided care m pacconi approx august 2018 neither mr wilson people whose name appear t9 gave evidence tribunal hearing m pacconi gave sworn evidence person summonsed appear tribunal request secretary m pacconi asked listen recording conversation centrelink officer 22 june 2018 listening recording m pacconi confirmed could recall conversation confirmed accuracy information conveyed centrelink time confirmed contacted centrelink response centrelink written request provide information care arrangement reproduce transcript conversation m pacconi letter number 70 say confirm craig wilson still caring care cease december 30 2017 agency officer sorry trying find letter know date sent m pacconi received 20thof 6th2018 agency officer oh might pop hold second ok look agency officer sorry keep waiting m pacconi ok agency officer ask anyone else providing care moment m pacconi yes scott riley agency officer put claim payment m pacconi yes lady couple month carer getting organised scott current one 1stof april still agency officer ok worry right needed bit information regard claim right sorry ask craig ever provide care m pacconi ah yes till end december agency officer till end december nothing m pacconi seen person agency officer oh ok yep good ok fine need get information send processing team m pacconi elaborated evidence seen mr wilson since late december 2017 m pacconi explained circumstance mr wilson ceasing carer time traumatic taken place boxing day could confident identifying date m pacconi elaborated seen mr wilson since except altercation supermarket mr wilson demanded contact centrelink say caring upon removed supermarket security enquired m pacconi personal circumstance medical condition m pacconi explained mental health condition condition primarily lead require supervision care formed favourable view m pacconi witness matter evidence clear concise supported general accuracy date traumatic incident described made prior consistent statement centrelink june 2018 evidence also corroborated fact claim carer payment lodged alternative carer prior conversation centrelink secretary submits accept m pacconi evidence noting stand gain benefit evidence accept m pacconi evidence find evidence superior record summary evidence available relied upon aat1 significant mr wilson participate hearing could asked evidence care receiver plainly inconsistent position prefer m pacconi evidence see told aat1 find mr wilson provided care m pacconi 31 december 2017 indeed m pacconi contact mr wilson date brief altercation described evidence finding sufficient conclude mr wilson qualified carer payment carer allowance respect m pacconi 31 december 2017 also follows mr wilson entitled receive carer supplement entitled receive qualifying instalment received 1 july 2018 note delay processing mr wilson claim carer payment carer allowance lodged 8 november 2017 payment granted 21 february 2018 paid date claim noted correspondence centrelink t11 page 128 132 imposes upon mr wilson positive obligation notify centrelink person provides care stop receiving care mr wilson therefore failed comply obligation social security law appropriate cancellation determination retrospectively applied secretary ask make cancellation determination take effect prior 31 december 2017 even though m pacconi evidence suggests mr wilson ceased providing care day earlier satisfied secretary calculation 31 december 2017 9 august 2018 mr wilson received instalment carer payment 14 917 44 carer allowance inclusive supplement 2 615 27 qualified receive find amount debt due commonwealth debt waivedthe scheme social security law presumes ordinary case amount overpaid recovered certain limited circumstance amount incorrectly paid may waived one situation provided section 1237a act provides debt must waived attributable solely administrative error part commonwealth e centrelink received good faith overpayment manifestly caused solely administrative error part commonwealth debt attributable mr wilson failure comply obligation notify centrelink ceased providing care m pacconi however repeat observation made hearing appears open secretary suspended payment much earlier based information drawn together proceeding surprised centrelink business system calibrated either immediately suspend mr wilson entitlement claim carer payment respect m pacconi third party received least generate notice section 68 administration act seeking clarification view suspending payment requested information provided within time allowed social security law also provides discretionary waiver debt special circumstance section 1237aad act claim expressly advanced mr wilson waive debt special circumstance nothing documentary evidence would motivate take step consider real issue arises event whether satisfied debt arisen wholly partly debtor another person knowingly failing omitting comply provision ofthesocial security law essential precondition waiving debt section 1237aad sub section 1237aad act secretary submit finding reached otherwise identify circumstance would justify waiving debt sufficient determine debt waived decisionthe decision review set aside substituted ul none list style none certify preceding twenty seven 27 paragraph true copy reason decision herein member kennedy sgnd associatedated 19 august 2020date hearing 14 august 2020solicitors applicant mr c visser solicitor service australia respondent appearance
SZRJN v Minister for Immigration and Citizenship [2013] FCA 222 (15 March 2013).txt	szrjn v minister immigration citizenship 2013 fca 222 15 march 2013 last updated 15 march 2013federal court australiaszrjn v minister immigration citizenship 2013 fca 222citation szrjn v minister immigration citizenship 2013 fca 222appeal szrjn v minister immigration anor 2012 fmca 978parties szrjn v minister immigration citizenship refugee review tribunalfile number nsd 1787 2012judge besanko jdate judgment 15 march 2013legislation migration act 1958 cth 425 1 case cited szjtk v minister immigration citizenship 2008 fca 1712 citedsznne v minister immigration citizenship 2010 114 ald 138 2010 fca 194 citeddate hearing 1 march 2013date last submission 1 march 2013place sydneydivision general divisioncategory catchwordsnumber paragraph 16counsel appellant appellant appeared personcounsel first respondent m givensolicitor first respondent minter ellisonin federal court australianew south wale district registrygeneral divisionnsd 1787 2012on appeal federal magistrate court australiabetween szrjnappellantand minister immigration citizenshipfirst respondentrefugee review tribunalsecond respondentjudge besanko jdate order 15 march 2013where made adelaide via video link sydneythe court order appeal dismissed appellant pay first respondent cost appeal note entry order dealt rule 39 32 federal court rule 2011 federal court australianew south wale district registrygeneral divisionnsd 1787 2012on appeal federal magistrate court australiabetween szrjnappellantand minister immigration citizenshipfirst respondentrefugee review tribunalsecond respondentjudge besanko jdate 15 march 2013place adelaidereasons judgmentthis appeal order made federal magistrate court 22 october 2012 day federal magistrate court made order appellant application judicial review relation decision refugee review tribunal tribunal dismissed 21 march 2012 tribunal made decision affirm decision delegate grant protection class xa visa appellant appellant citizen india arrived australia 20 march 2009 two year later 14 july 2011 applied protection class xa visa delegate decided refuse appellant application 11 october 2011 appellant made application review tribunal 8 november 2011 reason tribunal described appellant claim broad term follows appellant claimed member india sikh student federation aissf member khalistan movement tribunal noted appellant pursue latter claim evidence tribunal appellant said followed security agent everywhere went interrogated intelligence branch said tortured authority expected report police twice week said parent told leave country safety left india without telling authority said expected would arrested mistreated authority returned india tribunal conducted hearing 19 march 2012 hearing conducted video link appellant griffith tribunal sydney tribunal described circumstance came follows applicant provide claim submission support review application 16 february 2012 tribunal invited applicant attend hearing 19 march 2012 tribunal received submission applicant 28 february 2012 asked postponement hearing back injury provided medical certificate dated 27 february 2012 indicated applicant could travel sydney attend hearing avoid sitting prolonged period officer rrt tribunal request contacted applicant doctor inquired whether applicant would able attend video hearing scheduled date doctor indicated applicant could attend hearing required travel sydney applicant informed request postponement declined hearing would proceed scheduled video link tribunal accepted appellant claim sikh tribunal referred claim active aissf india targeted political opponent authority involvement group tribunal said formed view appellant exaggerated claim enhance application said appellant provided broad vague information support claim difficulty providing detail regarding circumstance india appear remember key information relating claim tribunal formed view appellant involvement aissf extent indicated would able remember describe involvement politics difficulty authority india tribunal rejected appellant various claim considered brief association aissf member group involved activity tribunal said appellant attended protest activity related land acquisition two occasion told attend police station person implicated violence told stop violence tribunal satisfied appellant person particular ongoing interest authority uttar pradesh punjab faced specific targeting authority involved aissf person particular interest authority india time left country 2009 tribunal accept 2007 2008 appellant participated movement relating land acquisition india activity attracted interest authority tribunal accepted appellant wish return india however accept fear regard well founded found person interest authority india ceased involved protest activity person interest authority india time departed country similar situation continue reasonably foreseeable future applicant indicated interest resuming involvement political activity finally tribunal found politically active sikh india attract adverse interest authority found appellant fear targeted authority india previously politically active sheik well founded reason tribunal rejected appellant claim protection visa ground application judicial review federal magistrate court without correction follows tribunal failed provide applicant opportunity appear thus failed comply mandatory requirement section 425 1 particular section 425 mandate oral hearing applicant tribunal physically present one place order applicant may present case ii tribunal physically present hearing tribunal sydney thus applicant appear tribunal tribunal jurisdiction make said decision reasonable satisfaction arrived accordance provision themigration act federal magistrate dealt ground szrjn v minister immigration anor 2012 fmca 978 first ground subject ground appeal appeal court however briefly summarise federal magistrate reason first noted claim tribunal lacked power conduct hearing video connection put court rejected many occasion see decision reef j inszjtk v minister immigration citizenship 2008 fca 1712at 23 26 katzmann j insznne v minister immigration citizenship 2010 114 ald 138 2010 fca 194 said appellant presented ground revisiting reasoning previous authority noted appellant submission attempted give ground personal application circumstance submitting circumstance denied meaningful opportunity participate hearing accordance implied requirement ofs 425 1 themigration act 1958 cth federal magistrate rejected contention said satisfied evidence appellant suffered real difficulty responding tribunal questioning due back pain medical condition conclusion follows therefore conclude nothing unlawful tribunal conduct hearing video connection detect nothing unfair procedure consequence applicant denied right entitled unders 425 1 federal magistrate noted appellant oral submission address ground two said otherwise able give ground two meaningful content able identify jurisdictional error affecting tribunal decision ground appeal court without correction follows fm failed consider tribunal denied applicant procedural fairness reaching adverse conclusion applicant claim implausible conclusion obviously open known material learned federal magistrate dismissed case without considering legal factual error contained decision rrt tribunal failed investigate applicant claim specially ground persecution india appellant file written submission appeared person assistance interpreter appellant expand ground appeal said attend much webcam next door also said tried get document india arrive got lost way considered reason federal magistrate think error reason also considered reason decision made tribunal detect error let alone jurisdictional error reason tribunal decision circumstance appeal must dismissed cost certify preceding sixteen 16 numbered paragraph true copy reason judgment herein honourable justice besanko associate dated 15 march 2013
Industrial Relations Commission Decision 1971_1994 [1994] AIRC 1751; (26 October 1994).txt	industrial relation commission decision 1971 1994 1994 airc 1751 26 october 1994 industrial relation commission decision 1971 1994 t0070cra dec 1971 94 print l6072 australian industrial relation commissionindustrial relation act 1988s 113application variation transport worker union australia c 32567 1994 transport worker garbage act award 1990 odn c 36933 1989 print j4245 t0070 garbage worker sanitary garbage disposal service commissioner hingley melbourne 26 october 1994 wage rate safety net adjustment review october 1993 arbitrated safety net adjustment principle satisfied application approved claim retrospectivity disallowed award varied decision matter 113application transport worker union australia union vary transport worker garbage act award 1990 increase 8 per week claimed union submission confederation australian capital territory industry confederation representative agreed giving effect consistent principle commission particular full bench review wage fixing principle october 1993 print k9700 increase opposed confederation claimed circuitous process involving direct nexus parent award transport industry sanitary garbage state award 1990 new south wale jurisdiction increase operate 3 february 1994 retrospectivity opposed confederation behalf relevant member print k9940 full bench stated commission raise time award variation sought reflect safety net adjustment continued implementation award restructuring program commenced 1989 measure taken proposed encourage enterprise bargaining action precondition granting safety net adjustment however matter must pursued commission provide every assistance party progressing satisfied submission written oral party program provide award restructuring progress 1989 principle provides adequate basis giving effect intent october 1993 august 1994 review decision print k9700 l4700 decision september 1994 safety net adjustment review print l5300 f0010 persuaded basis term theindustrial relation act 1988 act current commission guideline upon decline give effect claimed 8 adjustment make award variation regard amended principle september 1994 safety net adjustment review mr harrison union gave extensive historical submission direct nexus consequence claimed removed need union make application variation ultimately done following discussion confederation discussion failed reach consent operative date variation increase opposed confederation claim retrospectivity another party bramble australia limited letter commission dated 12 september 1994 said inter alia matter listed hearing tuesday 13th september 1994 3 00 p company appearing apology inconvenience may cause company consent variation detailed union order substituted service dated 2nd august 1994 confederation submitted application made 2 august 1994 retrospective cost large increase argued february issue raised union put application transcript 13 9 94 p 17 last para mr lee confederation also written submission referred critically union undue delay lodging application asked mr harrison union transcript follows question raising really went point take six month union believed p 13 mr harrison well concern within union would june year matter referred attention branch industrial officer undertook research matter advice federal office even given belief safer make application time given point view stressed u quite strongly industry employer act concurred view put confederation refusing circumstance find delay lodging undue impediment award retrospectivity decided give effect 8 per week increase safety net adjustment operate first full pay period 13 september 1994 date advanced confederation written submission claim retrospectivity 3 february 1994 therefore disallowed factor view considering granting retrospectivity application regard consented party case present matter accept existence direct nexus argued doubt nexus award another jurisdiction comfortably co exist current principle commission relate furtherance award restructuring program commenced 1989 heavy emphasis enterprise bargaining importantly incentive bargain notwithstanding criterion direct nexus sufficient ground award retrospectivity view notwithstanding since insertion wage rate award commission print j4245 became necessary variation made application normal way variation operate 3 february 1994 application made appropriately true commission power 113 apply variation motion neither intended canvassed party commission rate introduced award reference made transcript proceeding c 33210 1988 relation insertion wage rate award view selective context following give context believe clarity mr capogreco union p 8 transcript award contain wage rate would necessity application made change made wage rate course another burden twu apply new application every time rate change mr dowd confederation p 9 transcript new south wale award move obviously application forthcoming vary act award regard wage rate classification included employer must refer three new south wale state award obtain rate give example sir mr capogreco mentioned award basically used transport industry sanitary garbage state award new south wale include trade waste another award new south wale transport industry trade waste state award wage schedule also little bit problem make matter easily accessible obviate possibility error calculation wage rate part particular employer commissioner take mr dowd point would clearer award contain exact rate pay particular classification way mean either party wish break nexus go exercise would assume party would agree decide rate actual rate pay contained within clause 4 exhibit twu1 following movement within various new south wale award referred rate pay could updated made operative exactly date applies new south wale overriding principle granting retrospectivity turn case 146 act provides exceptional circumstance satisfied similar circumstance foggo c decision print k6048 g0048 relating application plumber gasfitters employee union australia vary gasfitters queensland award 1984 c 32309 1992 prepared accede retrospectivity operation expense related allowance case applicant sought retrospective application even prior date making application grant extensive retrospectivity requires exceptional circumstance exist union outlined view believed exceptional circumstance persuaded shall issue appropriate order give effect decision appearance l harrison p schulz transport worker union australia lee confederation c industry hearing detail 1994 canberra september 13 october 25 end text end text
Harford v Australian Anglo American Searches [1988] WAWM 14; Vol 04 Folio 13 (23 March 1988).txt	folio 13 soft summary tailing licence exist time plaint transitional provision clause 7 2 give plaint filed expiry prior renewal retrospective effect summary judgment dismissing plaint warden court 23 03 88lc heard held perth delivered 23 3 88 plaint no 36 878 37 878 matter application cancellation licence treat tailing no 26 136 26 141 patrick alouysius harford plaintiff australian anglo american search pty ltd defendant warden court plaint no 38 878 50 878 inclusive held perth matter application cancellation license treat tailing no 26 139 26 140 26 161 26 163 26 164 26 183 26 223 26 224 26 357 26 361 inclusive patrick alouysius harford plaintiff mulga mine pty ltd defendant mr r anderson qc instructed parker parker appeared applicant defendant mr camp instructed granich associate appeared respondent plaintiff 2 2 warden j reynolds return chamber summons filed defendant seeking order 1 plaint struck action dismissed ground plaint abuse process alternatively frivolous vexatious 2 alternatively 1 summary judgement entered defendant 3 cost application action paid plaintiff total 15 plaint chamber summons term set filed respect plaint matter convenience chamber summons heard together anglo american group 15 w license remove treat tailing 13 held wholly owned subsidiary mulga mine pty ltd 2 another subsidiary australian anglo american search pty ltd defendant rely affidavit cedric ross berglund sworn 1 3 88 support chamber summons paragraph 9 10 11 affidavit set relevant history 9 advised search solicitor verily believe prior hearing plaint search mulga gave discovery relevant document mr savage solicitor plaint filed mr savage werf heard kalgoorlie warden court warden reynolds 21 22 july 1987 party represented queen 3 3 counsel several witness including expert witness called cross examined search mulga incurred considerable cost defending plaint 10 4 august 1987 warden reynolds dismissed plaint incompetent delivered reason produced shown marked letter crb6 copy reason decision warden reynolds 11 plaint filed present plaintiff mr harford harford plaint identical term seek relief plaint filed mr savage dismissed warden reynolds paragraph 5 12 13 affavitr set follows 5 18 february 1987 search applied minister mineral energy renewal said ltt application renewal still pending produced shown marked letter crb2 copy said application renewal 12 date filing harford plaint date swearing affidavit application renewal ltt referred paragraph 5 still pending 13 v e r ly believe mr ha r f f mer partner mr savage goult pro partnership mr savage represented firm solicitor granich associate mr harford likewise represented firm 4 reason verily believe mr harford aware proceeding took place july 19 7 warden reynolds referred important development since affidavit sworn 21 3 88 minister mine renewed license important renewal affect outcome chamber summons counsel respondent plaintiff involved plaint savage outset asked mr camp whether savage sought review decision supreme court western australia advised review proceeding commenced gained distinct impression listening mr camp ravage may pursue finding matter law went make finding fact exercised discretion based fact savage plaint resolved 4 8 87 nearly 8 month ago clearly savage active seeking review respondent plaintiff filed affidavit answer chamber summons mr camp say really expect depart finding matter law savage plaint x suspect plaint harford mean putting finding matter law savage plaint supreme court western australia unshackled finding fact exercise discretion 5 5 sound system justice provide appellate review jurisdiction savage harford wish finding matter law reviewed supreme court western australia matter concern determining chamber summons find unnecessary examine whether plaint harford abuse process alternatively frivolous vexatious opinion summary judgement entered defendant every case depart comment finding matter law set decision savage plaint rely determination application propose set comment finding simply refer decision savage v australian anglo american search pty ltd savage v mulga mine pty ltd warden court kalgoorlie delivered 4 8 87 opinion plaint incompetent license set plaint longer existed plaint made previously mentioned opinion renewal 21 3 88 period twelve month 31 3 88 affect outcome chamber summons provision transitional provision clause 7 2 second schedule mining act give renewal effect previous expiry would cure trespass holder expiry prior renewal provision give plaint filed expiry prior renewal retrospective effect 6 6 opinion renewal cannot impose retrospective obligation holder would absurd construe transitional provision clause 7 2 away produce effect applicant renewal license pending renewal application determined hold licence conduct way license section 134 5 mining act provides 5 subject act without affecting jurisdiction warden court warden court warden case may require may exercise relation matter relating civil proceeding act like power authority conferred upon supreme court judge thereof section 134 5 take der 16 rule 1 rule supreme court provides 1 defendant action may within 10 day appearance later time leave court apply court summary judgement court satisfied action frivolous vexatious defendant good defence merit action disposed summarily without pleading may order judgement entered defendant without cost 7 b plaintiff shall proceed trial without pleading 7 party consent may dispose action finally without appeal summary manner noted court may give leave defendant apply summary judgement beyond 10 day appearance application summary judgement require leave counsel harford respondent application take point defendant leave warden court proceeding application summary judgement warden power recommend dismissal plaint seeking cancellation licence would open warden entertain application summary judgement defendant however opinion warden power dismiss plaint peeking cancellation licence given warden power conclude plaint way follows warden give summary judgement favour defendant regulation 118 1904 regulation provides application cancellation made manner forfeiture mining lease section 102 mining act 1904 applied miner seeking forfeiture mining lease provided warden may recommend forfeiture lease imposition fine lieu forfeiture may dismiss application purpose regulation 118 section 102 lease read license forfeiture read cancellation opinion 8 8 word may recommend read word may dismiss application warden view plaint dismissed may proceed dismiss conclusion 1 plaint 36 878 50 878 inclusive incompetent disposed summarily 2 judgement hereby entered favour defendant plaint 36 878 50 878 inclusive 3 cost reserved 4 liberty apply respect cost j reynolds warden
Inghams Enterprises Pty Limited [2021] FWCA 5982 (27 September 2021).txt	inghams enterprise pty limited 2021 fwca 5982 27 september 2021 last updated 30 september 2021 2021 fwca 5982fair work commissiondecisionfair work act 2009s 185 enterprise agreementinghams enterprise pty limited ag2021 6705 inghams enterprise victorian hatchery agreement 2021poultry processingdeputy president youngmelbourne 27 september 2021application approval inghams enterprise victorian hatchery agreement 2021 1 inghams enterprise pty limited employer made application approval enterprise agreement known inghams enterprise victorian hatchery agreement 2021 agreement pursuant tos 185of thefair work act 2009 act agreement single enterprise agreement 2 employer provided written undertaking copy undertaking attached annexure satisfied undertaking cause financial detriment employee covered agreement undertaking result substantial change agreement undertaking taken term agreement 3 subject undertaking referred basis material contained application accompanying statutory declaration additional information provided employer satisfied requirement ofss 186 187 188and190as relevant application approval met 4 agreement approved 27 september 2021 accordance withs 54 operate 4 october 2021 nominal expiry date agreement 11 february 2023 deputy presidentprinted authority commonwealth government printer ae513241pr734266 annexure
NECA Education and Careers Ltd [2020] FWCA 6894 (18 December 2020).txt	neca education career ltd 2020 fwca 6894 18 december 2020 last updated 11 january 2021 2020 fwca 6894fair work commissiondecisionfair work act 2009s 185 enterprise agreementneca education career ltd ag2020 3694 neca education career ltd etu enterprise agreement apprentice 2020 2024electrical contracting industrydeputy president colmanmelbourne 18 december 2020application approval enterprise agreement 1 neca education career ltd made application approval enterprise agreement known theneca education career ltd etu enterprise agreement apprentice 2020 2024 agreement pursuant tos 185of thefair work act 2009 act agreement single enterprise agreement 2 basis material contained application accompanying declaration satisfied relevant requirement ofss 186 187and188has met application lodged within 14 day agreement made however pursuant tos 185 3 b consider fair extend time making application date actually made communication electrical electronic energy information postal plumbing allied service union australia bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 based declaration provided organisation note agreement cover organisation 3 agreement approved 18 december 2020 accordance withs 54 operate 25 december 2020 nominal expiry date agreement 1 march 2024 deputy presidentprinted authority commonwealth government printer ae509877pr725630
N96_10223 [1997] RRTA 203 (28 January 1997).txt	n96 10223 1997 rrta 203 28 january 1997 refugee review tribunaldecision reason decisionrrt reference n96 10223country reference fijitribunal member mr j bussdate decision 28 january 1997place sydneydecision applicant refugee therefore person australia protection obligation refugee convention protocol decision review respect husband daughter son affirmed catchword part ethnic fijian parent detained 1987 coup family supported labour party coalition family harrassed subsequent harm claim rest difficulty rehabilitation applicant citizen fiji arrived australia stowaway 1985 11 august 1995 lodged application protection visa application included husband daughter son included family member completed form indicating personal claim refugee 21 december 1995 delegate minister immigration multicultural affair refused application advised applicant 10 january 1996 applicant applied review decision tribunal several criterion must met protection visa granted major one applicant refugee described 36 act person australia protection obligation refugee convention amended refugee protocol sub 5 1 act 1 definesrefugees conventionandrefugees protocol international instrument setting right obligation refugee many country including australia signatory relevant present matter paragraph 2 article 1 convention adopted protocol provides 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 applicant outside country nationality unwilling avail protection question haswell founded fearofbeing persecutedfor one thereasonsset whether applicant fear persecution whether fear well founded must determined upon fact exist date determination made regard reasonably foreseeable future however circumstance applicant left country nationality remain relevant ordinarily starting point ascertaining applicant present status 2 applicant invited attend hearing set 15 january 1997 attend absence word member family tribunal wrote separately applicant husband requesting indication wish regard son reply received date specified meantime applicant written request matter decided information available without oral evidence received due oversight letter applicant husband made reference couple ten year old daughter however given request mother person claiming refugee lack response father propose decide matter evidence regard includes content applicant departmental file evidence fiji available tribunal resource applicant born fiji 1968 child mixed part ethnic fijian marriage parent two sibling fiji remaining sibling australia applicant educated end primary school wrote previously visited australia state 1985 friend met australia visited fiji encouraged applicant stow away ship friend return australia applicant married australia applicant claim based event occurred left country namely military coup 1987 ethnic tension violence period together subsequently introduced racially biased constitution applicant claim father time arrested interrogated tortured military personnel account politics applicant wrote family supported fiji labour party coalition part coalition dominated fijian indian 1987 election applicant family campaigned coalition coup army commandeered applicant family home evicted family threatened harassed mentioned arrested mistreated applicant father applicant wrote 1990 law order restored although family continued risk threat harassment however major problem one would face applicant return previous electoral system based common electoral roll replaced system ethnically exclusive voter roll although applicant acknowledged constitution reviewed claimed remain risk racial political discrimination furthermore claimed family fiji found difficult earn livelihood job opportunity limited applicant stated fiji would protection assistance rehabilitate background applicant present fear summarised u state department report 3 constitutional provision ensuring political dominance ethnic fijian primarily race based voting roll representation parliament abridge right citizen change government moreover constitution promulgated nonelected interim government never approved national referendum year end constitution review three member independent commission commission received hundred submission held dozen hearing many presentation offered thoughtful idea ameliorate racial divide forge stable peaceful prosperous future others including ruling party svt fijian political party taken le positive approach svt urged commission ensure ethnic fijian control fiji political process government backed unchallenged ethnic control military constitution provides ethnic fijian dominance government providing 37 70 seat elected lower house parliament indo fijian accorded 27 seat rotumans culturally distinct polynesian 1 others 5 senate appointed body essentially review power right veto legislation ethnic fijian hold 24 34 seat rotumans 1 group 9 constitutional feature designed ensure ethnic fijian dominance include requirement prime minister ethnic fijian selection procedure virtually ensure president also ethnic fijian constitution also incorporates bill right providing freedom speech assembly religion universally accepted right freedom right may altered parliament except approval two third lower house however constitution give parliament authority pas special act deal certain specified emergency situation notwithstanding human right guarantee found section constitution attorney general office taken view legislation introduced emergency power provision would require approval two third lower house critic constitution maintain simple majority would needed indigenous fijian lower house would able solely strength number abrogate constitutional human right protection neither interpretation tested great council chief gcc traditional fijian leadership body selects president appoints fijian member senate advice gcc provincial council nine member race judgment appoints one rotuman senator advice rotuman council president chooses prime minister along cabinet hold executive authority among ethnic fijian member lower house basis ability command majority support within body election held secret ballot voting communal constituency constitution call election every 5 year government may call election time snap general election february 1994 failing pas 1994 budget election considered free fair observer returned rabuka party parliament strength rabuka selected prime minister constitutional review mentioned report applicant discussed tribunal another matter n95 09789 october 1996 wrote respect constitutional reform referred u department state report constitutional review commission report 4 handed president 6 september 1996 ceremony attended ethnic fijian prime minister ethnic indian leader opposition report tabled joint sitting parliament 10 september referred joint select committee positive sentiment reported side official occasion prime minister reported stating constitution need change serve enduring basis racial harmony national unity also urged joint select committee ten month complete deliberation focus constitution brings everyone community fiji together recommendation commission include relevant applicant complaint provision lower house parliament consisting seventy seat 25 would reserved ethnic block vote 45 would open multi racial requirement ethnicity prime minister major recommendation reported fijian press advance tabling report response may expected le favourable encouraging official pronouncement example nationalist party leader called proposal sell fijian interest liable spell end fijian race comment said reflected similar comment leader vanua independent party newspaper published detail also suggested four parliamentarian government opposition met regularly taukei movement said planning campaign unacceptable report commission present electoral system effectively precludes indian fijian gaining majority parliament favoured political party participate freely fully political life discriminatory constitution presently subject debate following review provision negative possibly inflammatory early response recommendation constitutional reform ethnic fijian quarter echoed attitude ethnic fijian prime minister supported commission ethnic fijian member applicant term written claim appear seriously suggest harm inflicted father 1987 recurred may recur case event affect doubt past persecuted evidence suggest present recurrence politically racially motivated violence decade ago real issue current concern raised applicant effective disenfranchisement recent evidence cause change opinion formed recently effect despite protest constitutional review process supported officially proceeding evidence satisfied applicant fear well founded term well founded fear considered high court inchan scase observed term contains subjective objective requirement fear concern applicant state mind term qualified adjectival expression well founded requires sufficient foundation fear court inchan scase held fear persecution well founded real chance refugee persecuted return country nationality observed expression real chance clearly conveys notion substantial distinct remote chance persecution occurring evidence applicant ostensibly realistic fear future namely discrimination difficulty finding work harassment matter could properly called persecution term persecuted persecution defined convention every form harm constitute persecution convention purpose court inchan scase referred serious punishment penalty significant detriment disadvantage applicant return country nationality harm threatened may le loss life liberty may include serious violation core fundamental human right application review applicant maintains part fijian part minority ethnic group background parent continuing opposition present government bode ill future however telling wrote family present problem term still suffering torture trauma inflicted upon military regime e 1987 statement reference subsequent harm family circumstance reinforce conclusion applicant fear persecuted well founded applicant refugee therefore person australia protection obligation refugee convention protocol decision review respect husband daughter son affirmed 1 migration act1958
Pham (Migration) [2021] AATA 3841 (23 September 2021).txt	pham migration 2021 aata 3841 23 september 2021 last updated 21 october 2021pham migration 2021 aata 3841 23 september 2021 decision recorddivision migration refugee divisionreview applicant mr van sy phamvisa applicant mr buu linh khuumr vi dan phamms phung han phamcase number 2008123home affair reference bcc2016 168170member smjustin owendate 23 september 2021place decision sydneydecision tribunal affirms decision grant visa applicant contributory parent migrant class ca visa statement made 23 september 2021 1 40pmcatchwordsmigration contributory parent migrant class ca visa subclass 143 contributory parent health requirement medical assessment likely significant cost australian community medical officer commonwealth opinion several request postponement correct test applied decision review affirmedlegislationmigration act 1958 65migration regulation 1994 schedule 2 cl 143 225 143 229 schedule 4 public interest criterion 4005 r 2 25casesramlu v mimia 2005 fmca 1735robinson v mimia 2005 fca 1626 2005 148 fcr 182statement decision reasonsapplication review1 application review decision made delegate minister home affair 11 march 2020 refuse grant visa applicant contributory parent migrant class ca visa unders 65of themigration act 1958 act 2 applicant applied visa 11 january 2016 delegate refused grant visa basis second named visa applicant mr vi dan pham referred visa applicant satisfy cl 143 225 schedule 2 themigration regulation 1994 regulation health criterion public interest criterion pic 4005 schedule 4 regulation met 3 tribunal exercised discretion hold hearing teleconference hearing held covid 19 pandemic tribunal determined reasonable hold hearing telephone regard nature matter individual circumstance review applicant tribunal also regard tribunal objective providing mechanism review fair economical quick delay matter hearing conducted telephone tribunal satisfied review applicant given fair opportunity give evidence present argument 4 thereview applicant appeared tribunal 17 september 2021 give evidence present argument 5 review applicant represented relation review registered migration agent representative attended tribunal hearing 6 following reason tribunal concluded decision review affirmed consideration claim evidenceconsideration claim evidence7 time decision visa applicant 66 year old vietnamese national application made contributory parent subclass 143 visa wife mr buu linh khuu daughter m phung han pham sponsor visa review applicant hearing visa applicant son mr van sy pham australian citizen 8 issue review whether visa applicant meet public interest criterion pic 4005 required criterion grant visa public interest criterion 4005 applies case extracted attachment decision requires visa applicant certain circumstance undergo medical assessment free certain disease condition may impact community delegate decision9 7 january 2020 medical officer commonwealth found visa applicant meet health requirement pic 4005 moc assessed visa applicant pic 4005 period permanent stay australia moc found visa applicant advanced bowel cancer moc found visa applicant advanced form bowel cancer recurrent metastasis mediastinal retroperitoneal node moc noted visa applicant treated chemotherapy immunotherapy partial response 10 moc considered hypothetical person disease condition severity visa applicant would likely require health care community service period specified service likely include medical service pharmaceutical 11 moc found hypothetical person condition similar severity visa applicant would likely recur require chemotherapy medical service form palliative care moc noted condition likely progressive 12 moc found hypothetical person condition severity visa applicant likely require health care community service period specified service likely include medical service pharmaceutical provision health care community service likely result significant cost australian community area health care community service 13 delegate wrote review applicant inviting comment respond moc 7 january 2021 according decision record review applicant provided medical evidence provided 14 based evidence information delegate delegate satisfied visa applicant meet pic 4005 moc found visa applicant meet health requirement outlined pic 4005 delegate found visa applicant meet cl 143 225 refused visa application 11 march 2020 15 visa applicant visa refused delegate also refused two visa applicant wife mr buu linh khuu daughter m phung han pham member family unit visa applicant required meet health requirement pic 4005 given visa applicant meet pic 4005 subsequently refused visa applicant mr buu linh khuu m phung han pham also refused 11 march 2020 16 11 may 2020 review applicant lodged tribunal valid application review decision delegate refuse visa application applicant free relevant disease condition pic 4005 1 b c 17 issue review whether visa applicant meet public interest criterion pic 4005 required criterion grant visa public interest criterion 4005 applies case extracted attachment decision requires applicant certain circumstance undergo medical assessment free certain disease condition may impact community 18 public interest criterion 4005 1 b require applicant free tuberculosis free disease condition may result applicant threat public health australia danger australian community 19 public interest criterion 4005 1 c requires applicant free disease condition would likely require health care community service would meet medical criterion provision community service specified period provision health care community service regardless whether actually used connection applicant would likely result significant cost australian community area health care community service prejudice access australian citizen permanent resident health care community service specified temporary visa certain specified health care community service excluded consideration pic 4005 3 20 visa applicant case applied permanent visa exclusion provision pic 4005 3 apply 21 determining whether person meet pic 4005 1 b c r 2 25a requires tribunal seek opinion medical officer commonwealth moc unless application temporary visa information known immigration effect person may meet requirement application permanent visa made specified country information known immigration effect person may meet requirement opinion moc required tribunal must take correct r 2 25a 3 moc opinion required 22 evidence tribunal moc opinion required noted tribunal must take moc opinion correct must first satisfied moc applied correct test forming opinion robinson v mimia 2005 fca 1626 2005 148 fcr 182andramlu v mimia 2005 fmca 1735 opinion must identify medical condition public interest criterion applied form level condition suffered applicant moc must applied statutory criterion reference hypothetical person suffers form level condition 23 21 july 2020 tribunal wrote review applicant representative noting decision refuse grant visa based opinion medical officer commonwealth visa applicant meet relevant health criterion copy opinion dated 7 january 2020 provided tribunal invited review applicant obtain opinion medical officer commonwealth tribunal requested completed form opinion moc returned 21 august 2020 24 17 august 2020 review applicant responded representative requesting extension time seek medical opinion tribunal agreed granting extension review applicant able seek medical opinion 25 9 december 2020 tribunal wrote review applicant representative noting substantial period time elapsed asking update 26 response received tribunal 4 march 2021 almost 4 month later payment provided obtain opinion moc correspondence visa applicant oncologist dated 17 february 2021 also submitted 27 19 march 2021 tribunal wrote medical officer commonwealth informing applicant wished obtain moc paid requisite fee relevant medical documentation currently tribunal supplied moc including report applicant oncologist 28 26 march 2021 visa applicant assessed senior medical officer commonwealth 29 29 march 2021 tribunal received correspondence department noting visa applicant assessed 30 3 august 2021 tribunal wrote review applicant relevant provision inviting comment respond opinion review medical officer commonwealth dated 26 march 2021 tribunal noted request review applicant tribunal arranged opinion review medical officer commonwealth rmoc tribunal noted visa applicant meet health requirement pic 4005 rmoc tribunal informed review applicant rmoc opinion also provided applicant tribunal correspondence stated applicant 66 year old person advanced bowel cancer form severity applicant condition applicant advanced form bowel cancer recurrent metastasis mediastinal retroperitoneal node treated chemotherapy immunotherapy condition advanced progression likely provision service hypothetical person applicant condition hypothetical person condition similar severity would likely recur require chemotherapy medical service form palliative care condition likely progressive consider hypothetical person disease condition severity applicant would likely require health care community service period specified service would likely include chemotherapy medical service provision health care community service would likely result significant cost australian community area health care community service 31 tribunal noted correspondence 3 august 2021 review applicant information relevant tribunal may find applicant meet health requirement pic 4005 tribunal noted opinion valid binding tribunal tribunal noted may find applicant subsequently entitled grant contributory parent visa applied review applicant invited give comment respond information writing 32 review applicant responded representative 17 august 2021 requesting extension time provide response tribunal agreed extension 31 august 2021 33 31 august 2021 review applicant replied representative providing letter visa applicant oncologist dr sem liew dated 9 august 2021 correspondence noted visa applicant diagnosed colon cancer metastatic stage iv correspondence stated visa applicant treating oncologist stated visa applicant present chemotherapy visa applicant disease monitored serial blood test imaging applicant representative stated review applicant tried get document possible current circumstance review applicant representative wrote visa applicant family requested application put hold primary applicant presumably visa applicant wife lose eligibility proceed application party requested tribunal could compassionately delay making decision 34 whilst tribunal sympathises review applicant family understands desire delay proceeding tribunal note aim make review process accessible fair economical informal quick valid rmoc tribunal tribunal provided considerable extension time review applicant provide medical opinion information part review process tribunal prepared basis evidence claim delay review process 35 tribunal hearing review applicant stated visa applicant longer chemotherapy well said visa applicant require special support staying home review applicant family pandemic thing around home like helping housework stated visa applicant would see oncologist late october ct scan would taken examine condition stated wished present result tribunal 36 review applicant stated visa applicant condition would get worse explained know would get worse would happen point expressed desire see visa applicant enjoy time australia family stated understood tribunal ability waive pic 4005 requirement review applicant pointed visa applicant family service support including health insurance ensure burden australian community 37 review applicant representative reiterated understanding waiver provision existed review review applicant representative expressed concern previously impact refusal application primary applicant visa applicant wife urged tribunal delay making decision wait oncologist next report reiterated visa applicant longer undertaking chemotherapy review applicant representative stated unfavourable party would look making relevant approach ministerial intervention matter 38 tribunal considered submission review applicant representative relation matter desire tribunal delay making decision matter tribunal satisfied visa applicant life review applicant family tribunal satisfied review applicant caring visa applicant review applicant would provide ongoing support visa applicant granted visa remain australia 39 however matter tribunal able take account making decision relation review subclass 143 visa application visa applicant satisfy essential criterion visa case pic 4005 tribunal choice affirm decision review minister discretion intervene take circumstance account formal request made tribunal refer matter tribunal note review applicant visa applicant may subsequently decide 40 tribunal note review applicant statement delay making decision tribunal prepared delay making decision matter tribunal note visa applicant refused meeting pic 4005 18 month ago applied review tribunal may last year tribunal given significant extension party make submission tribunal review applicant visa applicant provided ample time supply documentation required support case tribunal furthermore note role review satisfied validity moc 41 tribunal note review medical officer commonwealth rmoc deemed visa applicant meet health requirement pic4005 c ii 42 tribunal satisfied rmoc applied correct test forming opinion moc 26 march 2021 identifies medical condition public interest criterion applied form level condition suffered visa applicant identified rmoc applied statutory criterion reference hypothetical person suffers form level condition 43 rmoc note hypothetical person condition severity visa applicant likely require health care community service period permanent stay australia moc state provision health care community service would likely result significant cost australian community area health care community service opinion moc based upon available medical report assessment associated investigation 44 tribunal regard decision inrobinson v mimia 2005 fca 1626 2005 148 fcr 182andramlu v mimia 2005 fmca 1735and satisfied rmoc apply wrong test matter 45 tribunal satisfied rmoc opinion identifies visa applicant condition public interest criterion applied ascertained form level condition suffered visa applicant applied statutory criterion reference hypothetical person suffers form level condition 46 provision waiver public interest criterion 4005 47 accordingly based opinion moc dated 26 march 2021 visa applicant satisfy public interest criterion 4005 1 c basis meet criterion grant contributory parent migrant class ca visa set accordance r 2 25a 3 tribunal must take moc opinion correct 48 visa applicant satisfied pic 4005 unable meet cl 143 225 49 visa applicant satisfied requirement pic 4005 tribunal must affirm decision review first named third named visa applicants50 cl 143 229 requires member family unit applicant must satisfy public interest criterion 4005 51 review medical officer commonwealth rmoc deemed 26 march 2021 visa applicant mr vi dan pham meet health requirement pic4005 c ii tribunal satisfied rmoc opinion valid 52 first named visa applicant wife visa applicant mr buu linh khuu third named visa applicant visa applicant daughter m phung han pham 53 second named applicant visa applicant mr vi dan pham meet pic 4005 reason outlined previously decision record satisfy criterion visa first named third named visa applicant subsequently unable meet cl 143 229 tribunal must therefore affirm decision review relation first named third named visa applicant decision54 tribunal affirms decision grant visa applicant contributory parent migrant class ca visa justin owensenior memberattachmentmigration regulation 1994schedule 44005 1 applicant aa applicant class person specified minister instrument writing paragraph must undertake medical assessment specified instrument ii must assessed person specified instrument unless medical officer commonwealth decides otherwise ab must comply request medical officer commonwealth undertake medical assessment free tuberculosis b free disease condition may result applicant threat public health australia danger australian community c free disease condition relation person would likely require health care community service b meet medical criterion provision community service period described subclause 2 ii provision health care community service would likely result significant cost australian community area health care community service b prejudice access australian citizen permanent resident health care community service regardless whether health care community service actually used connection applicant applicant person medical officer commonwealth requested signed undertaking present health authority state territory intended residence australia follow medical assessment provided undertaking 2 subparagraph 1 c period application permanent visa period commencing application made b application temporary visa period minister intends grant visa ii visa subclass specified minister instrument writing subparagraph period commencing application made 3 applicant applies temporary visa b subclass applied specified minister instrument writing made subparagraph 2 b ii reference sub subparagraph 1 c ii health care community service include health care community service specified minister instrument writing made subclause
Rossi v Excess Power Equipment [2013] FWC 5714 (26 August 2013).txt	rossi v excess power equipment 2013 fwc 5714 26 august 2013 2013 fwc 5714fair work commissiondecisionfair work act 2009s 394 unfair dismissaljason rossivexcess power equipment u2013 11724 deputy president gooleymelbourne 26 august 2013application relief unfair dismissal dismissed pursuant tos 587of thefair work act 2009 1 19 july 2013 application pursuant tos 394of thefair work act 2009for remedy unfair dismissal lodged mr jason rossi 2 division 5 ofpart 3 2of act deal procedural matter relating making unfair dismissal application 3 section 395 deal application fee provides 395 application fee 1 application fwc division must accompanied fee prescribed regulation 2 regulation may prescribe fee making application fwc division b method indexing fee c circumstance part fee may waived refunded 4 regulation 3 07 thefair work regulation 2009 regulation deal calculation waiver refund application fee relevantly regulation 3 07 7 provides waiver fee commission satisfied person suffer serious hardship 5 application accompanied required fee worked accordance regulation application form unsigned undated 6 23 july 2013 mr rossi advised email application required payment 65 50 filing fee completed waiver form together signed copy application form wished proceed application 7 1 august 2013 commission attempted contact mr rossi success date response received applicant 8 section 587 act provides 587 dismissing application 1 without limiting fwc may dismiss application fwc may dismiss application application made accordance act b application frivolous vexatious c application reasonable prospect success note another power fwc dismiss application remedy unfair dismissal made division 5 part 3 2 see section 399a 2 despite paragraph 1 b c fwc must dismiss application section 365 773 ground application frivolous vexatious b reasonable prospect success 3 fwc may dismiss application initiative b application 9 regard circumstance matter satisfied application accompanied fee prescribed regulation application made accordance act application shall dismissed pursuant 587 1 act order effect issued shortly deputy presidentprinted authority commonwealth government printer price code pr540225
Independent Education Union of Australia v Minaret College Ltd [2023] FWC 2075 (18 August 2023).txt	independent education union australia v minaret college ltd 2023 fwc 2075 18 august 2023 last updated 18 august 2023 2023 fwc 2075fair work commissiondecisionfair work act 2009s 483aa application order access non member recordsindependent education union australiavminaret college ltd re2023 655 re2023 656 deputy president colmanmelbourne 18 august 2023application access non member record request determine ex parte request refused 1 decision delivered transcript 10 august 2023 declined determine application 483aa thefair work act 2009 act anex partebasis following edited version decision added brief introduction two permit holder independent education union australia ieu applied 483aa order would allow inspect non member record held minaret college ltd respondent applicant contended order necessary allow investigate suspected contravention act respondent connection employment ieu member fixed term basis 2 clause 9 3 theeducational service teacher award 2020 award state employer engages employee fixed term basis letter appointment inform employee reason employment fixed term clause 13 1 award state employee may employed fixed period time 12 month specified reason including replace employee leave clause 13 2 state replacement arrangement clause 13 1 c extends beyond 12 month fixed term employment may extended 12 month applicant suspected respondent failed inform member reason fixed term employment accept respondent claim reason fixed term engagement cover employee maternity leave 3 applicant sought order would require respondent give access document showing request teacher parental leave extension leave well contract letter appointment teacher engaged fixed term basis within particular date asked matter determined absence respondent telephone hearing 10 august 2023 heard applicant 4 applicant submitted application 483aa commonly determined anex partebasis nothing warranted different course case contended real prejudice would accrue respondent adopting course said employer told application would additional notice union proposed entry beyond 14 day maximum period 487 3 would prejudice union ability investigate suspected contravention finally submitted employer notified application might apply pressure member union cease investigation 5 conclusion telephone hearing advised applicant persuaded determine matter absence respondent commission must observe requirement natural justice one hearing rule requires ordinarily party must heard decision made affect interest simply procedural rule fundamental principle common law determine application absence party serious matter requires well founded reason justifying course 6 precisely natural justice requires particular case depend circumstance matter may countervailing interest consideration warrant determination matter anex partebasis however satisfied case matter fear welfare member could provide basis decide matterex parte reason think member welfare risk union told respondent contravention suspected identified member suggestion respondent date applied pressure member union cease investigation notion might occur response application 483aa speculation 487 3 demarks earliest latest period notice entry union must give employer least 24 hour 14 day determination application 483aa could affect union obligation observe rule applicant appeared mean respondent would advance warning intention inspect non union record reason think would affect union ability investigate suspected contravention otherwise undesirable 7 reason resolved relist application hearinginter partesand directed applicant serve application respondent deputy presidenthearing detail 2023melbourne10 augustprinted authority commonwealth government printer pr765352
Southern Colliery Maintenance Pty Ltd [2014] FWCA 5545 (15 August 2014).txt	southern colliery maintenance pty ltd 2014 fwca 5545 15 august 2014 2014 fwca 5545fair work commissiondecisionfair work act 2009s 210 enterprise agreementsouthern colliery maintenance pty ltd ag2014 8509 southern colliery maintenance employee enterprise agreement 2011coal industrysenior deputy president harrisonsydney 15 august 2014application variation southern colliery maintenance employee enterprise agreement 2011 1 application made approval variation thesouthern colliery maintenance employee enterprise agreement 2011 agreement application made pursuant tos 210of thefair work act 2009 act southern colliery maintenance pty ltd 2 signed copy variation found annexure decision 3 satisfied requirement ofs 211of act relevant application approval met 4 application approved accordance withs 216of act shall come operation 15 august 2014 5 aconsolidatedversion agreement issued decision senior deputy presidentannexure aprinted authority commonwealth government printer price code ae893786pr554266 var _gaq _gaq _gaq push _setaccount ua 9592794 1 _gaq push _trackpageview function var ga document createelement script ga type text javascript ga async true ga src http document location protocol http ssl http www google analytics com ga j var document getelementsbytagname script 0 parentnode insertbefore ga
SZHRS v Minister for Immigration and Citizenship [2008] FCA 109 (19 February 2008).txt	szhrs v minister immigration citizenship 2008 fca 109 19 february 2008 last updated 27 february 2008federal court australiaszhrs v minister immigration citizenship 2008 fca 109szhrs v minister immigration citizenship refugee review tribunalnsd 1359 2007stone j19 february 2008sydneyin federal court australianew south wale district registrynsd 1359 2007on appeal federal magistrate court australiabetween szhrsappellantand minister immigration citizenshipfirst respondentrefugee review tribunalsecond respondentjudge stone jdate order 19 february 2008where made sydneythe court order 1 appeal dismissed 2 appellant pay first respondent cost appeal note settlement entry order dealt order 36 federal court rule federal court australianew south wale district registrynsd 1359 2007on appeal federal magistrate court australiabetween szhrsappellantand minister immigration citizenshipfirst respondentrefugee review tribunalsecond respondentjudge stone jdate 19 february 2008place sydneyreasons judgment1 21 october 2005 refugee review tribunal affirmed decision delegate first respondent grant appellant protection visa decision consent quashed federal magistrate court matter remitted second differently constituted tribunal second tribunal also dismissed appellant application application judicial review second tribunal decision dismissed federal magistrate 2007 fmca 950 2 second tribunal appellant recanted claim falun gong practitioner stated suffered persecution china fear returning china federal magistrate appellant claimed ill appeared tribunal answer gave clear vague claim account gave tribunal incorrect evidence honour support claim reference appellant ill tribunal record decision 3 federal magistrate stated 33 accepting applicant evidence tribunal found applicant subjective fear persecution convention related reason return china based finding tribunal satisfied applicant met statutory criterion set 36 2 act required protection visa circumstance pursuant 65 1 b act tribunal bound refuse grant applicant protection visa 4 1 november 2007 finkelstein j granted appellant extension time appeal judgment federal magistrate according written submission first respondent court reluctant dismiss matter immediately without seeing transcript rrt fmc hearing noting unusual appellant would completely resile claim stated rrt decision would make claim illness fmc mentioned rrt decision 5 hearing appeal appellant effectively made submission merely commented believe would elaborate declined take part hearing appeal 6 transcript hearing tribunal federal magistrate court included appeal book transcript tribunal hearing make quite clear tribunal account appellant evidence accurate complain unwell honour correct upholding tribunal decision reason gave reason appeal dismissed cost certify preceding six 6 numbered paragraph true copy reason judgment herein honourable justice stone associate dated 19 february 2008counsel appellant appellant appeared personsolicitor respondent dla phillips foxdate hearing 19 february 2008date judgment 19 february 2008
SZSCF v Minister for Immigration, Multicultural Affairs & Citizenship & Anor [2013] FCCA 823 (16 July 2013).txt	szscf v minister immigration multicultural affair citizenship anor 2013 fcca 823 16 july 2013 last updated 17 july 2013federal circuit court australiaszscf v minister immigration multicultural affair citizenship anor 2013 fcca 823catchwords migration review conduct leading recommendation independent merit review assessor whether recommendation made according law whether independent merit review assessor failed accord applicant procedural fairness whether independent merit review assessor applied correct legal principle jurisdictional error application dismissed legislation migration act 1958 cth 36cases cited minister immigration multicultural affair ex parte durairajasingham 2000 168 alr 407applicant szscffirst respondent minister immigration multicultural affair citizenshipsecond respondent jill bartlett capacity independent merit reviewerfile number syg 2454 2012judgment judge emmetthearing date 16 july 2013date last submission 16 july 2013delivered sydneydelivered 16 july 2013representationthe applicant appeared person assistance interpretersolicitors respondent mr matthew alderton sparke helmore federal circuit courtof australiaat sydneysyg 2454 2012szscfapplicantandminister immigration multicultural affair citizenshipfirst respondentj bartlett capacity independent merit reviewersecond respondentex temporereasons judgmentthis application judicial review conduct leading recommendation second respondent independent merit review assessor dated 20 august 2012 handed 22 august 2012 applicant recognised person australia protection obligation process review accurately summarised solicitor first respondent follows 2 commonwealth established refugee status assessment rsa process officer department immigration citizenship thedepartment may consider claim made offshore entry person owed protection obligation order make determination may inform possible exercise minister non compellable power eitherss 46a 91lor195aof themigration act 1958 cth theact 3 commonwealth also established process offshore entry person may seek independent merit review imr unsuccessful assessment rsa process 4 minister accepts court jurisdiction determine claim injunctive relief legal error identified recommendation imr court would power make declaration identifying error declaration thought utility 1 5 whilst applicant also seek order nature mandamus certiorari appropriate court grant relief minister duty exercise even consider exercising non compellable power unders 46a 2 91lor195aof act 2 6 although applicant also applied writing time extended file application unders 477 2 act order required 3 background applicant claim accurately summarised solicitor first respondent written submission follows 7 applicant citizen sri lanka entered australia unauthorised boat arrival taken christmas island 7 february 2010 cb 265 par 2 8 7 march 2010 entry interview conducted applicant cb 6 26 cb 267 268 par 20 24 9 19 september 2010 applicant applied rsa cb 33 44 appointed migration agent assist application cb 27 32 cb 64 68 10 applicant set claim protection statutory declaration dated 19 april 2010 cb 45 48 interviewed rsa officer connection claim 21 april 2010 cb 259 par 39 11 applicant claimed sri lankan national tamil ethnicity born 1990 north country cb 45 par 1 2 2008 brother detained sri lankan army sla suspected transporting supply ltte cb 45 par 8 applicant also suspected working ltte detained interrogated late 2009 whilst passing checkpoint cb 46 par 11 13 also detained another occasion late 2009 spend day manual labour army camp cb 46 par 14 16 sla came applicant home looking parent decided longer safe remain sri lanka departed australia cb 47 par 16 22 12 applicant also provided department number identity document support protection claim cb 69 92 13 7 may 2010 applicant notified assessed meeting convention definition refugee cb 93 103 rsa officer found applicant oral evidence interview vague contained number discrepancy led doubt credibility claim cb 101 102 rsa officer found circumstance accepted independent country information ici support applicant claim would face persecution returned sri lanka cb 102 103 5 november 2010 applicant lodged application independent merit review rsa accurate summary recommendation made first independent merit review dated 9 november 2010 second independent merit review dated 5 may 2011 accurately summarised solicitor first respondent written submission follows first reviewer15 first independent merit reviewer first reviewer applicant claimed typed five page written statement recently informed family brother forced sign statement implicating applicant ltte activity also claimed sla various paramilitary group group family home looking sinhalese neighbour reported authority applicant also attempted explain inconsistency rsa officer identified evidence cb 114 118 cb 269 270 par 40 52 16 letter dated 5 september 2010 applicant representative provided written submission outlined applicant claim protection including new claim applicant would face harm basis illegal departure sri lanka subsequent claim asylum australia cb 119 121 written submission also took issue rsa officer adverse credibility finding cb 121 124 referred various ici said support applicant claim cb 124 142 cb 270 271 par 53 57 17 11 september 2010 applicant attended interview first reviewer cb 217 273 par 58 71 18 9 november 2010 applicant notified first reviewer recommended applicant owed protection obligation cb 143 169 cb 273 par 72 19 following high court decision plaintiff m61 2010e 4 applicant invited fresh review cb 170 172 applicant representative subsequently provided written submission support applicant claim 7 14 february 7 march 2011 cb 173 174 cb 178 188 cb 190 193 second reviewer20 applicant interviewed different independent merit reviewer second reviewer 14 february 2011 cb 273 276 par 73 87 21 11 november 2011 applicant provided department undated letter rev fr john bosco cb 194 195 22 5 may 2011 second reviewer also recommended applicant owed protection obligation cb 276 3 12 april 2012 judge dwyer made declaration consent second reviewer afforded applicant procedural fairness failing consider integer claim cb 196 197 process recommendation third independent merit reviewthe process recommendation third independent merit review imr accurately summarised solicitor first respondent written submission follows 23 applicant invited fresh review interviewed different reviewer thethird reviewerandsecond respondent 12 june 2012 cb 276 281 par 91 114 24 prior interview applicant representative provided written submission outlining applicant claim protection cb 200 202 wassubmitted applicant purported psychological problem head injury impacted ability give evidence cb 202 submission also took issue previous adverse assessment made applicant credibility cb 203 205 provided updated ici support applicant claim cb 205 142 25 addition written submission set applicant claim satisfy complementary protection criterion in 36 2 aa act namely applicant real risk significant harm people smuggler condition would face imprisoned sri lanka cb 220 229 applicant representative also provided written statement applicant sought correct mistake made previous statement travelled australia cb 230 232 cb 276 par 88 90 26 8 june 2012 applicant representative provided third reviewer copy page applicant passport cb 233 236 27 19 june 2012 third reviewer wrote applicant inviting provide information wished support claim cb 238 comment writing various ici third reviewer considered relevant review cb 239 241 cb 281 par 115 28 19 june 2012 applicant representative provided copy written submission previously provided second reviewer cb 243 29 letter dated 2 july 2012 applicant representative also responded third reviewer invitation comment relevant ici cb 246 260 cb 281 282 par 116 recommendation third reviewer30 20 august 2012 third reviewer recommended applicant person australia owed protection obligation noted recommendation subject applicant challenge proceeding 31 third reviewer prepared give applicant benefit doubt accept claim brother worked truck driver transporting vegetable sri lanka detained beaten 2008 suspected working ltte account tamil ethnicity regular truck driving cb 294 295 par 138 139 32 third reviewer also accepted applicant detained two occasion 2009 sla forced work beaten cb 295 par 140 third reviewer accept however applicant detained suspected associated ltte relationship brother instead found basis accepted ici detained arbitrary basis cb 296 par 140 33 third reviewer also accept applicant travelled brother truck journey given identified inconsistency shortcoming evidence third reviewer found claim created bolster claim eligibility australia protection obligation cb 293 par 135 34 reaching finding third reviewer expressly found applicant sufficient degree mental development maturity give evidence accept numerous discrepancy evidence explained factor advanced representative namely applicant young age inexperience alleged memory problem due head injury third reviewer also regard whilst noting applicant 18 year age mrt rrt guideline information unhcr assessing claim minor vulnerable person cb 292 par 132 134 35 third reviewer therefore satisfied real chance applicant would perceived holding political opinion account brother previous arrest suspected ltte involvement would otherwise come adverse attention authority member brother family cb 296 par 141 36 third reviewer also found basis applicant evidence since 2008 brother longer subject adverse attention authority accept plausible applicant claim brother forced sign statement late 2009 implicating applicant ltte supporter cb 292 297 par 142 37 whilst third reviewer accepted existed particular social group young tamil male north accept basis ici applicant would perceived ltte supporter factor individually combination including unmarried cb 297 par 143 144 38 third reviewer accept discrimination applicant may suffer reason would amount serious harm defined bys 91r 2 act cb 298 par 144 question constitutes serious harm within meaning ofs 91rwas question fact degree reviewer sole arbiter fact 5 39 third reviewer found evidence applicant departed sri lanka passport name rejected claim departure illegal cb 298 par 145 40 third reviewer also satisfied real chance applicant would face harm due security measure put place authority colombo airport particular third reviewer accept basis accepted ici authority would suspect applicant supporter ltte anything past including previous detention travel australia via india claim asylum australia cb 298 299 par 146 147 imr accept real chance applicant would subjected harm relation irregular boat travel india australia facilitated people smuggler cb 300 301 par 149 41 third reviewer expressed doubt reliability applicant claim neighbour reported authority found event even allegation made authority would unlikely suspect applicant absence evidence implicating supporter ltte third reviewer also found enquiry made authority applicant family concerning applicant whereabouts simply made ordinary course investigating absence missing family member registered address cb 300 par 148 42 reason third reviewer satisfied applicant well founded fear persecution cb 301 par 150 finding open third reviewer evidence court cannot review merit decision 6 complementary protection findings43 found applicant person australia owed protection obligation refugee convention within meaning ofs 36 2 act atcb 301 par 151 third reviewer properly proceeded consider whether applicant satisfied complementary protection criterion set in 36 2 aa 44 third reviewer accept real risk applicant would suffer significant harm person involved associated arrangement travelled india australia cb 301 152 153 reaching finding third reviewer took account time expired since applicant journey taken place early 2010 department confidential handling information provided offshore arrival fact family received adverse attention people smuggler returned applicant passport family existence number asylum claimant boat cb 301 302 par 154 157 45 basis applicant evidence national id card passport currently family nothing preventing sending applicant australia third reviewer accept applicant would return sri lanka undocumented cb 302 par 158 third reviewer also relied previous rejection applicant claim would perceived ltte supporter authority would otherwise face harm colombo airport cb 302 par 159 160 third reviewer also found evidence indicate applicant breached sri lankan law accept would adverse interest authority merely applied asylum australia cb 303 par 161 46 light previous finding accepted ici third reviewer accept real risk applicant would subject detention arrival sri lanka condition would constitute torture cruel inhumane treatment punishment degrading treatment punishment set subparagraphs 36 2a c e act accept discrimination faced applicant accessing justice matter controlled sri lankan government would constitute substantial ground believing necessary foreseeable consequence applicant removed australia sri lanka real risk would suffer significant harm defined bys 36 2a e act cb 303 par 162 163 proceeding courton 26 october 2012 applicant filed application seeking judicial review third independent merit review assessor recommendation 18 december 2012 applicant represented mr karp counsel direction hearing applicant given leave file serve amended application giving complete particular ground review relied upon together evidence way affidavit including transcript imr interview well submission support applicant unrepresented hearing morning although assistance tamil interpreter commencement hearing applicant confirmed filed amended application evidence submission support application document present court morning support application applicant confirmed relied ground contained application filed 26 october 2012 follows 1 decision second respondent affected legal error recommending first respondent applicant recognised person australia owes protection obligation imr procedurally fair 2 decision second respondent affected legal error recommending first respondent applicant recognised person australia owes protection obligation imr proceed reference correct legal principle correctly applied ground interpreted assistance applicant applicant invited make submission support ground support application generally ground 1ground 1 supported particular evidence submission make bare assertion disclose error capable review court asked applicant way imr procedurally unfair applicant responded badly affected nothing say fair reading imr statement reason support applicant bare assertion applicant interviewed darwin 12 june 2012 part process imr presence migration advisor assistance tamil interpreter imr assessor statement reason first correctly identified relevant law applied finding statement reason summarised applicant claim evidence given 7 march 2010 entry interview christmas island imr assessor summarised applicant rsa application rsa interview post rsa statement applicant submission advisor imr assessor summarised first imr interview recommendation second imr interview recommendation imr assessor referred statement applicant dated 4 june 2012 provided support third review continued rely previous evidence support rsa review request third interview applicant claim explored significant detail matter concern arising evidence put response noted applicant advisor also made oral submission applicant invited letter dated 19 june 2012 post interview provide information wished support claim letter dated 19 june 2012 sent applicant giving particular country information adverse claim inviting applicant comment 29 june 2012 applicant representative responded imr letter imr statement reason identified particularity country information regard ultimately imr assessor comprehensively rejected applicant claim past harm reason claimed claim evidence found unreliable inconsistent internally independent country information found apolitical attitude towards ltte government sri lanka accepted would perceived reasonably foreseeable future ltte supporter also accepted applicant faced serious harm returnee failed asylum seeker imr assessor considered whether applicant owed protection obligation convention refugee alternative criterion imr assessor concluded applicant person australia protection obligation either unders 36 2 36 2 aa themigration act 1958 cth finding made open evidence material reason given including adverse credibility finding credibility finding matter par excellence relevant decision maker minister immigration multicultural affair ex parte durairajasingham 2000 168 alr 407at 67 per mchugh j circumstance applicant every opportunity put case forward meet concern raised imr assessor adverse fair reading imr statement reason support applicant bare contention process procedurally unfair quite contrary applicant identified particular manner say imr conducted procedurally unfairly none apparent face imr statement reason accordingly ground 1 made ground 2ground 2 supported particular evidence submission make bare assertion disclose error capable review court applicant submission make support ground 2 assert badly affected extent ground 2 complains imr proceed reference correct legal principle correctly applied fair reading imr statement reason support complaint stated imr assessor clearly identified relevant correct legal principle considered applied finding fact made upon conclusion based stated finding made open evidence material reason given accept submission solicitor first respondent mr alderton applicant said anything morning point error law imr none apparent face statement reason review process accordingly ground 2 made conclusiona fair reading third imr including statement reason make clear imr assessor understood claim made applicant explored claim applicant migration advisor interview regard material provided support imr assessor put applicant matter concern evidence noted applicant response imr assessor also put applicant interview writing independent country information adverse applicant claim invited applicant comment upon imr assessor made finding based evidence material finding fact open evidence material reason given fair reading imr statement reason make clear conclusion reached based finding made correct law applied circumstance imr recommendation applicant owed protection obligation made according law proceeding court dismissed cost certify preceding thirty one 31 paragraph true copy reason judgment judge emmettassociate date 16 july 2013 1 wzapn or v minister immigration anor 2012 fmca 235at 23 25 2 plaintiff m61 2010e v commonwealth australia 2010 hca 41 2010 243 clr 319at 99 100 3 szqdzv minister immigration citizenship 2012 fcafc 26 2012 200 fcr 207 4 plaintiff m61 2010e v commonwealth australiaop cit 5 vbas v minister immigration multicultural indigenous affair 2005 fca 212 2005 216 alr 307at 28 per crennan j 6 minister immigration ethnic affair v wu shang liang 1996 hca 6 1996 185 clr 259at 272
Jessica Matsen v Sshl Pty Ltd T_A Star Liquor [2023] FWC 1369 (12 June 2023).txt	jessica matsen v sshl pty ltd star liquor 2023 fwc 1369 12 june 2023 last updated 13 june 2023 2023 fwc 1369fair work commissiondecisionfair work act 2009s 394 application unfair dismissal remedyjessica matsenvsshl pty ltd star liquor u2023 3329 commissioner durhambrisbane 12 june 2023application unfair dismissal remedy application dismissed unders 587 1 18 april 2023 m jessica matsen m matsen applicant applied fair work commission commission unders 394of thefair work act 2009 act unfair dismissal remedy alleging unfairly dismissed employment sshl pty ltd star liquor respondent 2 listed matter acase management conference direction hearing telephone 1 june 2023 3 31 may 2023 1 42pm day prior case management conference direction hearing associate sent following email party dear party refer matter case management conference direction hearing listed phone at2 00pm qld time tomorrow 1 june 2023 notice listingattached applicant respondent please confirm attendance best contact detail beforeclose business today 31 may 2023 4 day respondent confirmed attendance contact detail 5 associate attempted contact m matsen day telephone 5 07pm however call went unanswered voice mail left requesting applicant confirm attendance contact detail 6 1 june 2023 8 31am associate sent following email applicant dear m matsen refer email voicemail left contact number provided commission applicant requested confirm attendance best contact detail later than10 00am today 1 june 2023 preparation case management conference direction hearing listed phone at2 00pm today 1 june 2023 notice listing attached applicant wish discontinue matter please seeattachedf50 notice discontinuance completed returned chamber way email respondent copied 7 day associate attempted contact m matsen telephone 12 16pm however call went unanswered voice mail left requesting applicant confirm attendance contact detail 8 associate attempted dial m matsen case management conference direction multiple time however call went unanswered 9 2 54pm afternoon associate sent following correspondence m matsen dear m matsen refer matter refer non attendance today case management conference direction hearing listed at2 00pmtoday 1 june 2023 see theattachednotice listing despite chamber attempting contact multiple occasion note made well aware today listing way notice listing issued 12 may 2023 12 may 2023 commissioner issued notice listing matter requiring attend case management conference direction hearing telephone application 2 00pm 1 june 2023 required confirm attendance provide best contact number 10 00am 31 may 2023 however chamber receive confirmation despite following multiple time attempt made contact number listed application number went straight message bank numerous attempt call failed appear case management conference direction hearing made attempt contact chamber commissioner durham explain reason attending direction hearing listed today commissioner directs provide reason writing failing attend direction hearing byclose business thursday 8 june 2023 explanation received commissioner give consideration dismissing application reason want prosecution unders 587of thefair work act 2009 wish continue application please findattacheda form f50 notice discontinuance response form f50 notice discontinuance e mailed tochambers durham c fwc gov au 10 date correspondence telephone contact received m matsen 11 section 587of act provides follows 587 dismissing application 1 without limiting fwc may dismiss application fwc may dismiss application application made accordance act b application frivolous vexatious c application reasonable prospect success note another power fwc dismiss application remedy unfair dismissal made division 5 ofpart 32 seesection 399a 2 despite paragraph 1 b c fwc must dismiss application undersection 365or773on ground application frivolous vexatious b reasonable prospect success 3 fwc may dismiss application initiative b application 12 section 593of act provides commission required hold hearing except provided act 13 note power dismiss substantive application exercised cautiously hastily clear basis 1 decision result extinguishment party application made order seek form relief beneficial statutory provision 2 14 power dismiss application non compliance unreasonable discretionary m matsen failed respond various correspondence chamber provide reasonable explanation commission regarding failure m matsen shown willingness prosecute case taken step 15 inl sayer v melsteel pty ltd 3 full bench held thats 587 1 provides dismissal matter applicant failed prosecute case without examining merit 16 circumstance persuaded exercise discretion unders 587of act dismiss applicant application want prosecution pursuant tos 587 3 act 17 order effect issue decision commissioner 1 general steel industry inc v commissioner railway nsw 1964 hca 69 1964 112 clr 125at 8 2 nick williams v sydney gay lesbian business association 2019 fwc 4399at 12 3 2011 fwafb 7498at 19 printed authority commonwealth government printer pr762984
Uren v Galbally and O'Bryan [1998] VLPT 18 (10 August 1998).txt	uren v galbally bryan 1998 vlpt 18 10 august 1998 last updated 1 february 2007uren v galbally bryan 1998 vlpt 18tribunal reference t0692 1997name client mr mr j urenname legal practitioner galbally bryanrpa reference victorian lawyer rpa limited km vlr 97 1067reasons legal profession tribunal decision given 10 august 1998 section 409 legal practice act mr mr uren conduct farm land owned mr uren mother mr uren senior adjoining farm owned parker amber pty ltd trustee uren family trust relevant time adjoining farm leased parker amber pty ltd mr hancock mr hancock issued proceeding mr mr uren county court claiming sheep regularly strayed onto mr hancock farm depasturing land fence farm poor state repair since least 1993 mr mr uren admitted county court proceeding sheep strayed mr hancock farm poor state fence mr hancock also alleged mr mr uren cut fence order allow sheep graze mr hancock pasture mr hancock sought recover diminution value pasture sought recover cost labour remove mr mr uren sheep farm total claim 57000 mr mr uren response deny cut fence contend claim depasturing removal sheep excessive bring counter claim 12000 alleged mr hancock converted eleven cattle use outcome county court proceeding date fixed trial although case unlikely reached proceeding settled basis mr mr uren pay 30000 mr hancock mr andrew bryan galbally bryan acted mr mr uren throughout proceeding dissatisfied way mr bryan handled case four respect deal separately concern 1 mr uren informed mr bryan document believed copy writ county court proceeding thrown window car without explanation given process server immediately threw document car mr uren subsequently searched document could found mr uren told mr bryan incident judgment entered default appearance mr bryan advised mr uren quite correctly seems service may defective mr uren sought judgment set aside basis defective service might recover mr hancock cost judgment set aside mr bryan sought judgment set aside solicitor mr hancock offered consent setting aside judgment upon payment cost 150 particular annexed notice hearing recite mr bryan advised would successful setting judgment aside ground irregular service would ordered cost mr mr uren also contend mr bryan paid cost sought namely 150 without consent mr uren give evidence satisfied evidence mr bryan supported file note made time telephoned mr uren informed offer recommended 150 paid probably would cheaper pursue contested application set aside judgment mr uren instructed mr bryan follow course 2 mr mr uren also contended mr bryan arrange appropriate witness available give evidence ordinary witness compared expert witness seem available one expert witness mr amor inspected fence purpose giving quotation cost repair replacement made witness statement ready attend arrangement made day hearing stock agent mr minogue accountant mr hoskings give evidence existence value cattle subject matter counter claim although witness statement made mr bryan also subpoenaed company named vicsworth give evidence charge removal mr mr uren sheep mr hancock farm although seems vicsworth probably would given evidence mr hancock although mr bryan taken step mentioned seems important expert witness arranged late stage day trial mr amor witness statement prepared mr bryan despite fact statement expert witness must served least ten day trial rule 44 03 thecounty court rule furthermore mr bryan appear sought expert witness depasturing word reduction value mr hancock pasture result mr mr uren sheep grazing upon bearing mind mr mr uren main defence loss claimed mr hancock exaggerated seems expert witness depasturing would desirable hand accept mr uren despite lack independence experienced local farmer might able give evidence issue explanation given mr bryan late arrangement made expert witness mr hancock serve statement expert witness ten day trial poor explanation mr bryan would known long trial case mr mr uren meet evidence would need call order establish counter claim satisfied mr bryan negligent failing make arrangement well trial expert witness give evidence failing prepare witness statement mr amor time served accordance thecounty court rule however satisfied loss flowed mr bryan negligence detailed evidence expert witness would said evidence furthermore seems term settlement reflect absence expert witness word limited amount evidence given settlement within rather wide range settlement regard reasonably achievable county court proceeding look loss term lost opportunity namely lost opportunity negotiate settlement knowledge appropriate expert witness available give evidence full knowledge expert witness say evidence given would enable ass value lost opportunity although impression value lost opportunity would small 3 mr mr uren next contended mr bryan joined parker amber pty ltd party proceeding sought contribution company towards damage paid mr mr uren mr hancock parker amber pty ltd trustee uren family trust mr uren indicated considerable animosity parker amber pty ltd indeed informed mr bryan acted mr uren supreme court proceeding brought parker amber pty ltd mr uren alleged mr uren misappropriated trust property valued 400 000 substance mr uren explained rationale contribution county court proceeding parker amber pty ltd taken step repair replace fence failure led sheep straying onto mr hancock pasture satisfied joinder parker amber pty ltd discussed mr bryan mr uren occasion mr bryan recommended parker amber pty ltd joined seems joining parker amber pty ltd proceeding capacity owner land farmed mr hancock might assisted resolving several issue might led repair replacement fence might led proper fence placed upon title boundary mr hancock erected temporary fence one foot inside title boundary sheep proof might clarified respective obligation adjoining owner occupier contribute repair fence furthermore might assisted mr mr uren contention either mr hancock parker amber pty ltd obliged mitigate depasturing loss ensuring sheep proof fence farm hand seems joining parker amber pty ltd probably would two effect might disadvantageous mr mr uren first joining parker amber pty ltd almost certainly would led joining mr uren senior party proceeding capacity owner land farmed mr mr uren secondly joining owner would increased number issue determined duration proceeding cost proceeding endeavoured demonstrate argument joining parker amber pty ltd competent legalpractitioners would recommended parker amber pty ltd joined competent legalpractitioners probably majority would recommended parker amber pty ltd joined mr bryan recommended parker amber pty ltd joined making recommendation much favour fell long way short amounting negligence 4 finally mr mr uren contended inadequate preparation case mr bryan forced settle particular annexed notice hearing recite follows 2 10 failing properly prepare client case legalpractitioner put undue pressure client settle matter 2 11 client confident case professionally competently prepared would settled claim hancock favour see contention second third contention mr mr uren repeated another form thing add comment made respect second third contention regard mr mr uren settled county court proceeding mr hancock favour satisfied settlement resulted properly considered assessment likely outcome proceeding even properly prepared within range settlement would provide fair reasonable settlement mr mr uren particular annexed notice hearing raise totally unrelated matter 1994 victorian producer co op obtained judgment mr uren 30828 14 november 1994 mr bryan wrote solicitor victorian producer co op conveying offer mr uren satisfy judgment paying 10000 20 december 1994 paying 12828 31 january 1995 saving mr uren 8000 offer accepted mr uren paid 10000 although 30 january 1995 pay 12828 12 april 1995 mr bryan wrote solicitor victorian producer co op conveying offer mr uren pay 12828 monthly instalment 1000 may 1995 mr uren paid 3000 mr bryan 20 june 1995 mr bryan paid 3000 solicitor victorian producer co op stage offer pay balance instalment 1000 per month accepted rejected 22 june 1995 mr bryan rendered account 880 mr uren service victorian producer co op matter 6 july 1994 victorian producer co op accepted offer pay balance rate 1000 per month 10 july 1995 mr bryan wrote letter mr uren asking send 1000 per month mr bryan 28 july 1995 mr uren sent cheque 1000 mr bryan mr uren also sent another cheque 1000 mr bryan 28 july 1995 respect different file 14 august 1995 mr bryan used 1000 pay account 880 thus leaving 120 trust account satisfied non payment victorian producer co op 1000 received 28 july 1995 led making demand solicitor victorian producer co op mr uren pay whole monies owing basis defaulted making agreed instalment bankruptcy proceeding would commenced demand led mr uren paying 9828 mr bryan august 1995 one cheque 1000 another payable victorian producer co op 8828 brought total payment made mr uren victorian producer co op matter 23828 sufficient pay 22828 victorian producer co op agreed accept full satisfaction judgment sufficient pay mr bryan account 880 mr uren contends mr bryan applied cheque 1000 received mr bryan 28 july 1995 pay account 880 agree cheque received mr bryan fiduciary capacity particular purpose namely pay monthly instalment victorian producer co op mr uren acknowledged evidence send covering letter cheque obvious mr bryan cheque 1000 intended mr uren used pay instalment 1000 payable victorian producer co op july pursuant arrangement made mr bryan following passage appears instumore v campbell co 1892 uklawrpkqb 44 1892 1 qb 314 316 appears money placed hand defendant solicitor particular purpose long purpose existed trust imposed upon bound accepted money employ lay particular way indicated trust find mr uren provided cheque particular purpose mr bryan use cheque another purpose breach fiduciary duty owed mr bryan mr uren must strict compliance fiduciary obligation order usually made restitution money misapplied hill v rose 1990 vicrp 13 1990 vr 129 144 however nothing gained making order restitution 1000 within month breach mr uren provided sufficient money pay balance owing victorian producer co op pay mr bryan account put another way mr uren longer suffers breach duty mr uren made related claim seemed based alternatively upon breach fiduciary duty upon failure follow instruction seems mr bryan breach fiduciary duty also amounted failure follow instruction prior mr bryan failure follow instruction 9828 remained owing victorian producer co op payable monthly instalment 1000 failure follow instruction 9828 owing payable immediately would prepared award compensation mr uren suffered loss result mr bryan failure follow instruction however mr uren give evidence loss state farmer need money urgently sell stock earlier would like sell lower price say course pursued occasion order raise 9828 acknowledge august instalment would payable event consequently evidence upon could make award compensation make following order dispute client legal practitioner dismissed signed malcolm howell registrar member legal profession tribunalnote copy document provided tribunal client legal practitioner legal ombudsman recognised professional association originally handled dispute conciliator
Australian Port and Marine Services Pty Ltd [2020] FWC 6367 (26 November 2020).txt	australian port marine service pty ltd 2020 fwc 6367 26 november 2020 last updated 1 december 2020 2020 fwc 6367fair work commissiondecisionfair work act 2009s 185 enterprise agreementaustralian port marine service pty ltd ag2020 3267 apms maritime union north west inshore agreement 2021maritime industrycommissioner williamsperth 26 november 2020application approval apms maritime union north west inshore agreement 2021 1 application made approval enterprise agreement known theapms maritime union north west inshore agreement 2021 agreement application made pursuant tos 185of thefair work act 2009 act made australian port marine service pty ltd agreement single enterprise agreement 2 satisfied requirement ofss 186 187and188of act relevant application approval met 3 maritime union australia bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 act note agreement cover organisation 4 agreement approved accordance withs 54of act operate 3 december 2020 nominal expiry date agreement 28 may 2024 printed authority commonwealth government printer ae509637pr724918
"Copyright" [2018] ELECD 2; in VerLoren van Themaat, Weijer; Reuder, Berend (eds), "European Competition Law" (Edward Elgar Publishing, 2018) iv.txt	copyright 2018 elecd 2 verloren van themaat weijer reuder berend ed european competition law edward elgar publishing 2018 ivbook title european competition laweditor verloren van themaat weijer reuder berendpublisher edward elgar publishingisbn 9781786435460section title copyrightnumber page 1extract editor contributor severally 2018 right reserved part publication may reproduced stored retrieval system transmitted form mean electronic mechanical photocopying recording otherwise without prior permission publisher published edward elgar publishing limited lypiatts 15 lansdown road cheltenham glos gl50 2ja uk edward elgar publishing inc william pratt house 9 dewey court northampton massachusetts 01060 usaa catalogue record book available british librarylibrary congress control number 2017950459this book available electronically law subject collection doi 10 4337 9781786435477isbn 978 1 78643 546 0 cased isbn 978 1 78643 547 7 ebook typeset column design xml ltd reading
Stratton v Van Driel Ltd [1998] VSC 75 (25 September 1998).txt	stratton v van driel ltd 1998 vsc 75 25 september 1998 last updated 9 november 1998supreme court victoriacauses jurisdictiondo send reportingnot restrictedno 4934 1998in matter appealunder section 92 themagistrates court act 1989kenneth peter strattonappellantvvan driel limitedrespondent judge byrne j held melbournedate hearing 1 september 1998date judgment 25 september 1998media neutral citation 1998 vsc 75 employment occupational health safety duty owed independent contractor matter employer control building site occupational health safety act 1985s 21 1 3 b appearance counselsolicitorsfor appellantmr p g priestvictoria workcover authorityfor respondentmr p tehan qc andmr russellcraig terrill associateshis honour 15 september 1995 barrie baum roofing plumber employed firm roofing contractor signal hobbs slipped fell climbing ladder building site result suffered serious injury accident occurred site new dandenong club dandenong signal hobbs engaged respondent van driel ltd supply fix roofing associated work result incident appellant kenneth peter stratton inspector appointed theoccupational health safety act 1985 23 july 1997 laid three information van driel alleging breach act third charge shall say nothing first second charge identical term 15 september 1995 corner stud road heatherton road dandenong pursuant 47 theoccupational health safety act 1985guilty offence act employer fail provide maintain far practicable employee working environment safe without risk health fail provide maintain plant system work far practicable safe without risk health contravention s 21 1 21 2 ofoccupational health safety act 1985 case particular given appellant show system work complaint made namely system work constructing box guttering newly constructed roof said address allegation unsafe system particularised first charge non compliance paragraph 2 1 c code practice safe working roof approved minister 55 1 act second charged non compliance paragraph 2 1 1 j code paragraph code deal method adopted protect injury falling charge heard magistrate court victoria dandenong 23 24 february 1998 transcript proceeding made affidavit filed behalf appellant challenged constituting accurate record hearing van driel pleaded guilty charge counsel appellant opened case called evidence support prosecution case closed counsel van driel made case submission upheld magistrate three charge dismissed appeal brought dismissal first second charge question law certified master raised appeal four number whether magistrate incorrectly interpreted applied section 21 3 theoccupational health safety act 1985when concluded respondent deemed employer within meaning section b whether magistrate incorrectly interpreted applied section 21 3 theoccupational health safety act 1985when concluded although respondent control control within meaning section c submission case magistrate misdirect matter taken consideration deciding whether prima facie case answer regard whole evidence particular evidence barrie baum see paragraph 24 mr costello affidavit 27 march 1998 ii sidney garland paragraph 32 37 43 iii peter signal paragraph 69 70 75 77 iv neil sewell paragraph 107 whether magistrate properly instructed would ruled case answer question involve examination 21 act set duty employer sub section 1 term 1 employer shall provide maintain far practicable employee working environment safe without risk health sub section 2 list number failure employee amount contravention 21 1 although paragraph alone relevant two charge appeal concerned others bear upon construction statute shall set full 2 without way limiting generality sub section 1 employer contravenes sub section employer fails provide maintain plant system work far practicable safe without risk health b make arrangement ensuring far practicable safety absence risk health connexion use handling storage transport plant substance c maintain far practicable workplace control management employer condition safe without risk health provide adequate facility welfare employee workplace control management employer e provide information instruction training supervision employee necessary enable employee perform work manner safe without risk health contravention 21 1 offence act indictable offence 47 one may heard determined summarily happened case magistrate court act 1989s 53 1 schedule 4 item 53 seen thats 21imposes duty upon employer take step protect employee injury employer employee defined act conventional term reference contract employment contract training 4 present case however mr baum employee van driel signal hobbs independent contractor engaged van driel carry roofing work section 21 3 enlarges scope thes 21 1 duty extends benefit independent contractor person upon duty imposed employee independent contractor provision whose meaning subject appeal term 3 purpose sub section 1 2 employee includes independent contractor engaged employer employee independent contractor b duty employer sub section extend independent contractor independent contractor employee relation matter employer control ii would control agreement employer independent contractor contrary use word employer little confusing reason purpose ofs 21 3 person upon duty imposed employer person usual even statutory definition term take effect ofs 21 3 applies simply insert word employee sub s 1 2 ofs 21 word independent contractor employee independent contractor word employer refers person engaged independent contractor person fixed thes 21 1 duty circumstance duty exists relation matter person control would control agreement contrary qualification caused magistrate dismiss first second charge subject present appeal necessary given term reason underline magistrate required decide considering case submission called upon accept reject evidence given prosecution witness asked find whether informant established beyond reasonable doubt factual ingredient charge required consider whether satisfied fact sense making making finding fact even criminal proceeding asked form view matter balance probability task examine evidence presented conclude whether assuming evidence accepted court could lawfully convict van driel charge done concluded could lawfully convict obliged accede case submission dismiss charge question whether assuming evidence called charge fact made entirely different may v sullivan 1955 hca 38 1955 92 clr 654at 658 put kitto j inzanetti v hill 1962 hca 62 1962 108 clr 433at 442 question whether case answer arising end prosecution evidence chief simply question law whether defendant could lawfully convicted evidence stand whether say respect every element offence evidence accepted would either prove element directly enable existence inferred question carefully distinguished question fact ultimate decision namely whether every element offence established satisfaction tribunal fact beyond reasonable doubt use word lawfully intended show magistrate must consider among thing legal element offence charged prosecution case involves interpretation statute magistrate accept correct conviction basis would lawful likewise identified element offence evidence support one essential conviction charge dismissed stage basis upon case submission put magistrate basis upon upheld van driel control roofing work carried signal hobbs extended definition employee contained in 21 3 application context case submission must mean either evidence control control evidence showed exist kind control envisaged bys 21 3 first submission put behalf van driel question fact open appellant raise appeal 92 themagistrates court act 1989 finding evidence fact control question law may v sullivan 1955 hca 38 1955 92 clr 654at 658 conclusion based interpretation statute reject submission debate meaning expression matter employer control in 21 3 b context van driel employer counsel van driel submitted roofing work specialist activity conducted expert performance work naturally enough left expert sense control client particular system work referred particular given first second charge namely system work constructing box guttering newly constructed roof matter technical nature signal hobbs van driel control although conceded control mean exclusive control sense person shared case apparent general contractor van driel would effective control roofing plumber work issue control argued determined right person exercise reference relationship employer independent contractor contrary submission put behalf appellant matter referred safety procedure according evidence defective procedure put control van driel contractor charge site term sub contract approach task construing statute conscious social legislation intended secure safety welfare person work protect risk 6 therefore construed generously object mind section 21 1 exemplified in 21 2 imposes employer extensive duty relation work environment employee including activity carried thing present environment may supposed duty imposed upon employer traditionally employer right control work practice employee employer provides plant machinery work employer arranges provides facility storage handling transport plant thing use workplace statutory duty extent reflects duty care imposed common law upon employer seer v australian char pty ltd 1995 79 crim r 427at 442 vic fc context relationship employer worker risk give rise statutory well common law duty employment relationship control worker working environment generally exercised exercisable employer within working environment thing activity may put worker risk harm may brought conducted person worker employment relationship scheme legislation therefore impose different duty upon person depending upon relationship likely source risk whether arises conduct undertaking 22 occupation workplace 23 fact manufactured supplied plant use workplace 24 whats 21 3 seek applies extend duty imposed bys 21upon employer worker risk person employer worker applies achieved introducing intos 21 1 modification created bys 21 3 section 21 1 would read person engaging independent contractor shall provide maintain far practicable independent contractor employee independent contractor working environment safe without risk health section 21 3 however imposes duty relation matter person control difficult question identify precisely nature control control must exist order attract extended duty word matter adopted parliament describe subject matter duty wide meaning wide enough cover activity thing working environment might involve risk safety health worker in 21 3 b duty imposed bys 21 1 exemplified in 21 2 duty relation matter conjunctive phrase indicates relationship duty subject matter duty also wide focusing moment paragraph ofs 23 3 b factor limiting imposition duty matter relates matter person engaging independent contractor control purpose construing word control referred oxford dictionary primary meaning given fact controlling checking directing action function power directing regulating domination command sway referred also case word control considered circumstance different present case demonstrate gibbs acj observed one word take meaning context found federal commissioner taxation v australian new zealand banking group ltd 1979 143 clr 499at 520 case court concerned determine whether certain document bank custody control inbotany fork crane hire pty ltd v new zealand insurance co ltd 1993 44 fcr 27 full federal court examined word part exception clause contained insurance contract clause excluded liability cover damage property custody control insured apparent case referred word control used relation thing refers degree domination normally relationship person control thing subject control arise ownership possession perhaps contract subject control person different consideration may apply example ordinary speech child said control adult speaker referring relationship two may arise family custodial relationship case undue influence speak person control another suggests de facto domination none case concerned control context expression control moreover none example quite fit case court relationship employer matter subject matter duty avoid risk matter may working environment thing activity working environment may cause injury harm word control found elsewhere act used conjunction word management part expression management control workplace definition occupier in 4and part expression workplace control management employer ins 21 2 c 21 4 31 2 mention also expression presumed control activity found in 44 1 suggested argument draw inference use word control different circumstance given great variety circumstance whichs 21 3 may apply neither desirable profitable attempt anything like exhaustive analysis word control expression control present case subject matter alleged duty manner mr baum went work roof without protection risk injury fall question determination circumstance might said activity control van driel direction given van driel activity case van driel would ordinary speech said control activity least two situation first legal right direct mr baum perform work way second notwithstanding person right give employer saw within area authority give direction importantly worker would accept act upon matter either situation person might also control activity turn tos 21 3 b ii difficulty paragraph ii predicated upon situation person engages independent contractor control matter question would control agreement contrary circumstance would control otherwise existed concluded case might exist legal right employer direct independent contractor employee conduct activity aspect acceptance asserted power give decision legal right might arise different way building contract commonly conferred contract employer independent contractor case logical difficulty applying paragraph ii would require contractual right control contractual provision contrary commence examining situation assumption contrary agreement exist contrary agreement part agreement independent contractor engaged perform work assumption agreement exist remove independent contractor workplace employer left perform independent contractor work case must follow would control work essence position adopted appellant performance roofing work part van driel contract proprietor van driel could work case controlled every aspect alternatively could sub contract work signal hobbs fact effect sub contract remove control right control paragraph ii applied van driel remained control paragraph applied accordingly argument appellant attached thes 21 1 duty van driel either situation find unable accept analysis section 21 3 b applies work given independent contractor one must start fact consequence employer nevertheless retains control activity thing question thes 21 1 duty attache employer distribution function contract engagement control retained employer necessary ask building project may arise nature sub contract work contractor let air conditioning contract example independent contractor independent contractor undertakes manufacture air conditioning plant site cannot suppose thats 21 3 b ii would apply make employer potentially breach due unsafe work practice sub contractor factory worker employed independent contractor injured position may otherwise injury suffered building site course installation plant term sub contract practice site rule law safety responsibility contractor section 21 3 b ii provision may operation great variety working environment say anything application beyond circumstance case sufficient conclude accept analysis proffered appellant since suggested either party paragraph ii application case shall put one side sole issue whether magistrate evidence could support finding van driel control matter working environment relation breach ofs 21 1 alleged matter evidence showed performance work roof mr baum circumstance without safety mesh harness protective device contemplated cl 2 1 c cl 2 1 1 j code practice submitted behalf applicant control given reserved van driel term sub contract signal hobbs immediate difficulty document evidence constituting subcontract incomplete significantly include detail may found preliminary section specification regarding site safety exists printed clause sc6 form agreement cl 21 may also deal matter magistrate however obliged deal evidence placed decision must evaluated basis nature signal hobbs work set first schedule sub contract describes labour material plant equipment necessary carry supply delivery installation metal roofing mesh insulation gutter gutter board sump flashing penetration flashing overflow including perimeter protection mobile scaffold accordance drawing specification issued project architect particular significance present purpose inclusion perimeter protection clause 3a obliges signal hobbs provide tool implement plant necessary performance work special condition 2 obliges signal hobbs issue van driel work started site description intended method safe system working may supposed intent requirement give van driel opportunity ass intended work method make suggestion improvement condition complied signal hobbs provided van driel letter dated 6 september 1995 another similar term dated 15 september 1995 setting safety measure taken stating code practice would complied clause 3a ii requires signal hobbs comply applicable act parliament would course include theoccupational health safety act 1985 clause 3a c obliges signal hobbs carry work directed time time directed van driel would seem therefore non compliance signal hobbs safety measure set letter given special condition 2 could constitute reason direction finally would open van driel insist compliance safety requirement act furthermore witness called informant variously employee signal hobbs van driel gave evidence relationship fact existed van driel employee signal hobbs employee respect safety aspect latter work mr baum said would complied asked stop work safety reason van driel employer union representative departmental representative sidney garland signal hobbs leading hand site said responsible paul barnes signal hobbs supervisor neil james sewell van driel general foreman site said also received instruction mr sewell would contact mr barnes would event comply leaving mr barnes mr sewell sort consequence peter john signal director signal hobbs gave evidence included statement manner performance contract generally left roofing contractor something odd van driel would give instruction job properly accordance regulation evidence necessarily related safety matter context open magistrate understand extending finally mr sewell said saw unsafe work practice site saw part role give verbal warning written warning presumably effect subcontractor desist practice repeat function court upon case submission accept reject evidence case submission must rejected magistrate evidence capable showing van driel control relevant safety aspect signal hobbs performance subcontract work evidence kind magistrate therefore error dismissing charge appeal therefore allowed order magistrate set aside happen information behalf appellant submitted remit charge magistrate court may heard de novo course urged said magistrate would difficulty recalling evidence given adopt course informant led evidence closed case magistrate presumably note event record proceeding contained affidavit filed court proceeding must therefore move forward point stopped appeal brought counsel van driel submitted counsel van driel went submitted case remitted magistrate enable make magistrate case submission effect evidence van driel failed comply far practicable safety obligation breach section 21 1 21 2 shown course likewise shall endorse defendant facing criminal charge opportunity make case submission aware authority practice would permit make second particularly appeal brought arising result first submission proper course mind magistrate take hearing basis rejected case submission made behalf van driel propose therefore following order 1 appeal allowed order magistrate court victoria sitting dandenong made 24 february 1998 dismissing first second charge contained information summons filed 23 july 1997 set aside 2 two charge remitted magistrate court hearing completed charge determined according law 3 respondent pay cost appellant appeal 4 certificate 13 appeal cost act
R v Garner [2004] NSWCCA 343 (1 October 2004).txt	r v garner 2004 nswcca 343 1 october 2004 citation regina v garner 2004 nswcca 343file number 2004 1796hearing date 29 september 2004judgment date 01 10 2004parties regina v andrew glen garnerjudgment dunford j barr j hoeben jlower court jurisdiction district courtlower court file number 03 11 07469lower court judicial officer gibson qc dcjcounsel applicant p byrne screspondent j girdhamsolicitors applicant l de luca corespondent kavanaghcatchwords legislation cited decision leave appeal granted appeal dismissed judgment 9 court ofcriminal appeal2004 1796dunford jbarr jhoeben j1 october 2004regina v andrew glen garnerjudgment1dunford j agree barr j 2barr j application leave appeal sentence imposed district court 10 october 2003 applicant andrew glen garner pleaded guilty charge may summarised follows 1 19 march 2003 manly armed offensive weapon namely knife robbed jing juan lin 400 and2 day cromer armed offensive weapon namely knife robbed ann zhuang 185 quantity cigarette 3 entered plea applicant asked gibson qc dcj take account provision crime sentencing procedure act one offence namely use cromer 19 march 2003 offensive weapon intent prevent lawful apprehension 4 first charge honour imposed non parole period twelve month overall sentence two year second honour imposed non parole period one year six month overall sentence three year honour took account applicant use knife intent prevent lawful apprehension effective sentence totality criminality therefore three year non parole period one year six month 5 9 05 wednesday 19 march 2003 applicant dressed dark clothing black beanie entered shop manly brandished knife mr lin proprietor business mr lin afraid retreated way shop applicant raised knife pointed mr lin mr lin wife heard commotion entered shop afraid walked cash register opened till applicant told wanted money stole 400 ran shop bystander saw removing beanie head went 6 11 45am day applicant entered shop cromer holding knife told proprietor mr zhuang hand money went till applicant required hand number packet cigarette mr zhuang acted thought applicant would use knife 7 applicant walked shop soon alarm raised bystander pursued applicant one came close applicant turned confront pointed knife asked want turned ran pursuer give one told drop bag carrying stolen money cigarette applicant pulled knife threatened use police called applicant arrested 8 applicant child twenty one year nine month age committed offence twenty two year four month sentenced six week offence applicant lived family life left school year eleven entered upon apprenticeship baker left apprenticeship two year order enter family business parent business furniture removal remained job 9 nineteen year old began smoke marijuana using drug six month began take methylamphetamine ecstasy relationship young woman deteriorated end 2002 beginning 2003 came end also end 2002 applicant ceased using illegal drug early 2003 began gambling began playing machine local rsl club went apparently looking new acquaintance ceased relation girlfriend time saving buy house little 20 000 lost money gambling club also ran bill 5000 credit card time working family business 10 february 2003 parent found row parent told welcome home sacked job went stay someone met club saving left wage committed offence somebody told would good way raise money 11 applicant gave evidence sentencing judge said sorry done written letter person robbed copy tendered large number testimonial tendered demonstrating high regard applicant held community offence 12 told court knowledge number event around family affected six seven year old learned cousin murdered applicant two year old said devastated heard age learned grandfather grandmother died young year six primary school friend found friend mother dead bed later friend injured motor vehicle accident suffered brain damage applicant became upset kicked door school referred psychologist treatment symptom anger 13 left home thought little contemplated committing suicide day robbery slept two day going jump cliff went place intended carry act however afraid go know going live going needed money therefore decided rob shop laid hand knife glove knife ornamental one brought home visit overseas time earlier dyed hair green 14 report psychologist mr rees psychiatrist dr westmore tendered applicant seen told traumatic event early life mr rees went detail dealt matter summarised well matter applicant told unable remember gave evidence 1987 uncle murdered mother law son daughter also tried murder applicant aunt committed suicide aunt left severe brain damage event well 15 history mr rees relied supplied principally applicant mother mr rees also account offence charged tested applicant standard psychological test expressed strong opinion thought high probability hypo manic episode psychotic feature said person state essentially mentally compromised capacity exercise judgment appropriate social behaviour significantly reduced psychotically disturbed state mind thought applicant suffering aberration mind time robbery psychotic nature thought applicant continuing care psychiatrist 16 dr westmore psychiatrist wrote report made passing reference stressor dealt mr rees noted applicant history hearing voice speaking thought applicant might suffered drug induced condition primary process schizophrenic illness thought choice diagnosis would determined applicant remained free illicit drug several month preferred diagnosis suffered drug induced early onset psychosis probably interrupted course course olanzapine prescribed 2001 applicant father took hospital suicidal thought cannabis consumption thought applicant condition probably responded positively cessation use illicit drug thought applicant become significantly depressed suffering major depressive illness probably affecting committed offence said illness would affected applicant judgment concurred mr rees opinion applicant offending behaviour complete contrast premorbid personality characteristic evidence said probable psychotic illness playing direct role offending behaviour thought applicant continue counselling would expect steady progressive improvement mental state 17 short report mr pickworth psychologist stated treating applicant since august 2003 thought applicant strong desire overcome long standing psychological problem appear need medication prognosis excellent 18 three ground appeal namely 1 total effective sentence imposed applicant excessive circumstance 2 learned sentencing judge failed properly ass give appropriate weight evidence bearing upon applicant medical condition time offence 3 learned judge found exceptional circumstance applicant case justified even greater departure guideline sentence established inr v henry 1999 nsw cca 111 1999 46 nswlr 346 19 ground may dealt together submitted three feature case made unusual first applicant robbed proprietor shop previously conducted business likely recognised made attempt cover face raised question whether really form cry help second offence committed shortly profound psychological disturbance evidence dr westmore mr rees mr pickworth showed applicant extremely disturbed committed offence third offence character demonstrated clean record strong evidence character reference attesting high moral standard offence explained mental condition applicant suffering time 20 dealing applicant mental condition honour said whilst acknowledge offender may suffering depression mean case need personal general deterrence disappears 21 remark attacked inadequate analysis applicant mental condition submitted complete thorough analysis would led different conclusion extensive reference made principle apply sentencing person suffering mental illness intellectual deficit see r v scognamiglio 1991 58 crimr 81andr v anderson 1981 vr155 latter case victorian court criminal appeal said sentencing generally necessary balance personal general deterrence one hand rehabilitation case offender suffering mental disorder abnormality general deterrence factor often given little weight general deterrence often given little weight case offender suffering mental disorder abnormality offender appropriate medium making example others 22 see alsor v letteri court criminal appeal new south wale 18 march 1992 unreported r v wright 1997 95 crimr 48 latter case hunt cj cl said 51 accepted principle sentencing general deterrence often given little weight case offender suffering mental disorder abnormality offender appropriate medium making example others case principle applied offender suffered asignificantmental illness retardation condition necessary condition principle applied consideration general even personal deterrence rendered completely irrelevant significance offender mental incapacity weighed evaluated light particular fact circumstance individual case reason principle interest society require person punished severely person without disability severity inappropriate circumstance full understanding authority requirement law attributed ordinary individual adult intellectual capacity cannot expected person whose intellectual function insufficient understanding mean court give effect principle instrument social administration moderate consideration general deterrence circumstance particular case offender act knowledge knowledge gravity action moderation need great 23 summarised relevant conclusion reached dr westmore mr rees difference illness applicant suffering decided commit robbery remarkable honour rejected opinion mr rees found evidence dr westmore opinion applicant suffering depression 24 think manner honour expressed conclusion indicates inadequate analysis failure understand dr westmore opinion think reference depression indicates honour qualifying dr westmore evidence word honour used suggest overlooked misunderstood relevant part opinion 25 remark hunt cj cl inr v wrightrecognise way offender may affected mental illness intellectual deficit vary enormously case effect law ought regard offender appropriate medium imposition sentence deter offender generally reason may little reason give weight sentencing personal deterrence 26 applicant though undoubtedly ill fall category person well able consider problem make plan put effect may accepted judgment affected depression told honour acted way would otherwise acted one part affecting seriously short money made enquires might raise made conscious decision rob obtained knife glove selected shop rob substance submission honour ought seen offence cry help correct say applicant cover face held proprietor shop entered number time carried risk would recognised however took trouble hide distinctive green hair beanie pursued second robbery made determined protracted effort get away 27 opinion honour entitled come conclusion applicant illness mean need sentence provide general personal deterrence 28 honour observed applicant offence except fact two robbery result conduct like contemplated inr v henry 1999 nswcca 111 1999 46 nswlr 346 starting range offence imprisonment four five year mitigating factor justify lower sentence see judgment spigelman cj paragraph 165 169 29 seems sentence imposed honour appropriately recognised extent applicant illness mitigated criminality opinion sentence well within proper range honour sentencing discretion would grant leave appeal would dismiss appeal 30hoeben j agree barr j last updated 08 10 2004
Mutual Assistance in Criminal Matters (Sweden) Regulations 2001 2001 No. 120.txt	mutual assistance criminal matter sweden regulation 2001 2001 120mutual assistance criminal matter sweden regulation 2001 2001 120explanatory statementstatutory rule 2001 120issued authority minister justice customsmutual assistance criminal matter act 1987mutual assistance criminal matter sweden regulation 2001section 44 themutual assistance criminal matter act 1987 act provides governor general may make regulation prescribing matter required permitted act prescribed necessary convenient prescribed carrying giving effect act paragraph 7 2 act provides regulation may provide act applies specified foreign country subject mutual assistance treaty country australia referred regulation act enables australia grant request following kind international mutual assistance criminal matter taking evidence search seizure arrangement witness give evidence assist investigation location restraint forfeiture proceeds crime regulation give effect australian domestic law treaty government australia government sweden mutual assistance criminal matter signed stockholm 18 december 1998 treaty treaty force bind australia sweden international law provide kind assistance listed provide document record locate identify person serve document provide similar assistance consistent object treaty inconsistent law requested state accordance government policy greater parliamentary involvement australia treatymaking process treaty tabled parliament together national interest analysis nia 16 february 1999 period fifteen sitting day following tabling elapsed allowing government take binding treaty action relation agreement article 22 treaty requires party treaty exchange instrument ratification stockholm soon possible australia requirement treaty entry force making regulation treaty enters force first day second month exchange instrument ratification exchange instrument ratification occur september 2001 treaty enter force 1 november 2001 accordingly 1 november 2001 commencement date regulation australia mutual assistance criminal matter treaty obligation provide assistance qualified certain internationally accepted safeguard chief amongst assistance shall granted relation political military offence request made purpose prosecuting punishing person account race sex religion nationality political opinion assistance shall also refused grant request would prejudice sovereignty security national interest essential interest requested state detail regulation follows regulation 1specifies name regulation regulation 2provides regulation commence 1 november 2001 date planned treaty enter force regulation 3provides mutualassistance criminal matter act 1987applies sweden subject scheduled treaty thescheduleto regulation contains text treaty government australia government sweden mutual assistance criminal matter done stockholm 18 december 1998 0102631a 010327b
Hardy v Commonwealth Bank of Australia [1999] VSC 41 (26 February 1999).txt	hardy v commonwealth bank australia 1999 vsc 41 26 february 1999 last updated 13 june 2000supreme court victoriacauses jurisdictiondo send reportingnot restrictedno 7247 1998gerald andrew hardy anorplaintiffsvcommonwealth bank australiadefendant judge warren jwhere held melbournedate hearing 1 february 1999date judgment 26 february 1999case may cited hardy anor v commonwealth bank australiamedia neutral citation 1999 vsc 41 order 5 09 originating motion stay proceeding end proceeding declaratory relief abuse process inherent power appearance counselsolicitorsfor plaintiffmr b j shaw q c withmr l glickstrongman crouchfor defendantmr l sifrisi purbrickher honour originating motion plaintiff gerald andrew hardy judith lorraine hardy seek declaration another proceeding 2051 1998 wherein commonwealth bank australia plaintiff hardy company starlight investment p l defendant come end virtue operation rule 5 09 chapter 1 general rule procedure civil proceeding 1996 proceeding bank claimed payment sum 281 223 84 bill facility account sum 75 674 46 overdraft facility together interest amount writ filed proceeding endorsed follows plaintiff claim debt pay debt namely 232 805 32 3 060 00 legal cost plaintiff solicitor within proper time appearance proceeding come end notwithstanding payment may cost taxed court statement claim filed writ proceeding bank claimed hardy payment sum 281 223 84 pursuant bill facility account sum 75 674 46 pursuant overdraft facility together interest writ proceeding served upon judith hardy came attention gerald hardy 21 july 1998 whilst overseas 24 july 1998 mr hardy attended office solicitor bank met solicitor bank mr c r thomson mr hardy tendered mr thomson four bank cheque totalling sum 235 865 32 total amount endorsed front writ amount debt mr hardy informed mr thomson wished return overseas wanted matter disposed requested receipt mr hardy accompanied mr findlay solicitor mr hardy left office solicitor bank whilst mr findlay waited receipt affidavit proceeding mr thomson deposed upon checking aggregate amount bank cheque totalled amount writ provided receipt mr findlay left thereafter mr thomson deposed short time later became aware total amount bank cheque tendered mr hardy equal total amount claimed statement claim delivered writ proceeding mr thomson attempted contact mr findlay immediately left message office bank would deposit bank cheque tendered mr hardy day mr thomson forwarded facsimile hardy solicitor following term commonwealth bank australia vga hardy jl hardy starlight investment pty ltdsupreme court proceeding 2051 1998 commercial list f 4911 refer matter mr hardy unexpected visit office morning delivered bank cheque payable client aggregate sum 235 865 32 record gave warning intention visit office order pay bank accepted cheque behalf client assuming sum paid money owing client defendant set statement claim subject referring matter client final instruction brought attention error writ principal sum stated 232 805 32 whereas read 356 898 30 amount claimed statement claim attached writ net difference amount paid bankand amount still owed bank thus 124 092 98 presumably mr hardy read statement claim may noticed discrepancy aggregate principal amount claimed writ opposed correct amount stated statement claim telephoned office earlier today drew matter tomr john honour attention presently advised bank seek payment total amountclaimed statement claim 356 898 30 together itscosts sum 3 060 00 ie total sum 359 958 30 bank bank cheque delivered stage accept proceeding settled request telephone writer matter urgency order attempt resolve obviously oversight behalf party presently advised instructed proceed proceeding attendcourt direction hearing 31 july 1998 seek consentto adjourn direction hearing 7 august 1998 order thatwe may attempt resolve matter alternatively matter willbe adjourned mr hardy understand overseas please would inform mr hardy mr hardy andyour client starlight investment development obviously unaware error writ accepted cheque handed receipt dated 24 july 1998 subsequently bank cheque tendered mr hardy returned bank thereafter proceeding hardy delivered defence alleging payment made mr hardy amount endorsed upon writ virtue payment proceeding concluded additional matter alleged bank proceeding respect third defendant starlight investment pty ltd concerning certificate title held security money said owed hardy bank order 5 09 rule provides 1 proceeding commenced writ plaintiff claim debt writ shall indorsed statement amount debt amount claimed cost statement proceeding come end within time limited filing appearance defendant pay amount claimed plaintiff solicitor 2 writ indorsed accordance paragraph 1 defendant pay amount claimed within time limited filing appearance except provided paragraph 3 proceeding shall come end 3 defendant may notwithstanding payment cost taxed one sixth shall disallowed plaintiff solicitor shall pay cost taxation mr b j shaw qc appeared plaintiff submitted plain intention rule 5 09 payment made accordance rule action come end support submission mr shaw relied upon fact amount claimed writ tendered accepted protest submitted circumstance tender acceptance constituted payment law seegeorge v clooney 1979 28 alr 57 62 63 mr shaw submitted rule 5 09 derived rule 3 5 rule previous form form provided 5 indorsement notice stay proceeding wherever plaintiff claim debt liquidated demand indorsement besides stating nature claim shall state amount claimed debt respect demand cost respectively shall state upon payment thereof within four day service case writ service within jurisdiction within time allowed appearance proceedingswill stayed statement may form appendix part iii section iii defendant may notwithstanding payment cost taxed one sixth shall disallowed plaintiff solicitor shall pay cost taxation mr shaw submitted former rule 3 5 effect relevant payment made proceeding stayed referred tolambert v mainland market delivery 1977 1 wlr 825and relied upon observation english court appeal support proposition previous provision contained rule 3 5 bring relevant action end whereas current rule contained rule 5 09 reflects deliberate intention namely payment made accordance rule action come end mr sifris appeared bank submitted error made amount paid pursuant rule 5 09 rule apply submitted correct interpretation rule deal payment debt actual debt owing mr sifris submitted rule 5 09 set rule court section concerned content filing duration originating process submitted rule procedural rule intended affect substantive right furthermore mr sifris emphasised bank proceeding claiming debt additional relief therefore pursuant rule 5 09 proceeding could come end manner submitted behalf hardy mr sifris submitted also purpose rule protect right defendant minimise cost amount claimed paid within time appearance asserted purpose rule facilitate containment cost defendant may subject amount claimed paid submission made mr sifris proceeding abuse process urged exercise inherent jurisdiction court including pursuant rule 23 01 dismiss proceeding constituting abuse process informed application proceeding rectify apparent mistake front relevant writ appears bank taken step regard proceeding mr sifris relied upon rule 1 14 provides exercising power rule court shall endeavour ensure matter disposed effectively promptly urged insofar may necessary pay heed slip rule provided rule 2 01 rule allow amendment writ proceeding mr shaw reply opposed latter course firstly basis application secondly particularly submitted power court respect proceeding gone end pursuant rule 5 09 finally mr shaw urged rule exist purpose change made rule change given effect submission argument put forward behalf party went described heading order 5 read content filing duration originating process rule order 5 concerned matter form appearance endorsement claim formal matter rule 5 03 provides writ must endorsed statement effect defendant file appearance within time stated plaintiff may obtain judgment without notice rule 8 04 requires appearance filed 10 day service within victoria rule 5 09 read conjunction rule 5 03 8 04 clear rule intended obviate need appearance within time filing appearance defendant pay amount debt endorsed writ amount claimed cost agreement party amount debt endorsed front writ tendered amount set statement claim despite rule 5 09 1 requiring writ endorsed statement amount debt amount claimed cost statement proceeding come end defendant pay amount claimed provision rule endorsement effected rule 5 09 refers endorsement debt cost claimed requirement contrasted rule 5 04 writ must contain endorsement claim rule 5 04 2 provides endorsement claim shall either statement claim statement sufficient give reasonable particularity notice nature claim cause thereof relief remedy sought proceeding endorsement required rule 5 09 1 therefore quite different require endorsement nature cause claim relief remedy sought rather rule 5 09 1 requires quite different matter view therefore rule 5 09 1 requires endorsement writ amount debt cost claimed description consequence amount paid intent purpose bank met requirement rule 5 09 1 hardy entitled act respect payment amount endorsed accordance rule 5 09 1 save amount debt wrongly stated endorsement bank adopt method generally endorsed writ usual way writ contained endorsement claim way statement claim bank submits amount stipulated statement claim higher amount correct amount issue arises therefore whether statement claim take precedence writ consequence amount statement claim prevail amount stated writ renowden v mcmullin 1970 hca 24 1970 123 clr 584is authority principle cause action plaintiff relies ascertained exclusively reference statement claim without regard endorsement writ owen j kitto menzies jj agreed barwick c j mctiernan j dissenting adopted observation inodgers pleading practice 19th ed 1966 171 179 owen j held position correctly stated inodgers 179 statement claim supersedes writ hence special form relief claimed writ statement claim taken much claim abandoned however question begged situation operate differently amount specified statement claim distinct cause action supersede amount specified writ think principle stated inrenowden v mcmullinmust confined endorsement claim writ statement claim contemplated rule 5 04 entirely different endorsement contemplated allowed virtue rule 5 09 1 current rule court came operation 1 january 1987 replaced rule supreme court victoria relating civil proceeding 1985 rule court originally implemented 1884 following enactment thejudicature act1883 useful history rule set judgment gillard j inwojcic v ind 2 1968 vr 533 536 538 also judgment smith j indep fed comm taxation v carpenter 1959 vicrp 68 1959 vr 470 472 thejudicature actthe practice procedure high court justice england existing time enactment thejudicature actwas adopted followed supreme court victoria rule supreme court 1884 made thejudicature actfollowed english rule express term rule revised amended number time form set 1985 rule equivalent rule 5 09 1 1985 rule rule 3 5 set previous rule 3 05 current rule 5 09 1 couched similar term save difference current rule rather use word proceeding stayed word proceeding end used said preface tocivil procedure victoriaby n j williams qc current rule drew upon common law system including england new south wale said also change derivative entirely new order trade drafting history rule 5 09 1 current rule useful consider english new south wale canadian approach equivalent rule english rule provides indorsement claim 6 r 2 2 1 writ issued must indorsed statement claim statement claim indorsed writ concise statement nature claim made relief remedy required action begun thereby b claim made plaintiff debt liquidated demand statement amount claimed respect debt demand cost also statement proceeding stayed within time limited appearing defendant except either case mentioned paragraph 2 pay amount claimed plaintiff solicitor agent ii either said case pay amount court new south wale provision follows english approach stipulates upon payment relevant amount proceeding shall stayed order 7 4 1 new south wale rule provides 4 1 plaintiff originating process claim adefendant liquidated demand liquidated demand togetherwith claim order interest section 94 act butmakes claim kind defendant may within time limited appearance pay plaintiffthe sum amount claimed including interest claimed thancosts ii amount cost equal originating process filed prior 1 july 1994 theamount fixed cost determination force date filing b otherwise amount fixed cost determination inforce 30 june 1994 notwithstanding repeal cost determination iii amount fixed cost determination includethe fee paid filing originating process amount equalto fee b may file notice payment 3 upon filing notice payment subrule 1 furtherproceedings shall stayed approach rule ontario canada different provide 14 10 1 plaintiff claim money defendant paying within time prescribed delivery defence time noted default amount plaintiff claim amount claimed cost may motion court dismiss action ontario therefore automatic suspension dismissal proceeding defendant make payment accordance rule necessary court order sought proceeding dismissed appear rule 5 09 1 current victorian rule draw ontario approach new south wale english provision cast different term current victorian provision stipulate claim debt liquidated demand amount claimed amount cost must endorsed writ together statement proceeding stayed payment made accordance rule unlike current victorian provision set rule 5 09 2 order england new south wale upon payment accordance rule proceeding shall come end considering whether court discretion lift stay respect rule type court appeal inlambert v mainland market delivery limited supra considered equivalent provision english county court rule held court jurisdiction set aside stay proper case loughton l j 834 stated action stayed come end judgment given order take away action inherent ability go forward becomes static sense cannot move action stayed started order court may well generally court decided action shall stayed reluctant indeed allow start mean cannot started similar view expressed english court appeal inrofa sport management g anor v h l international uk anor 1989 1 wlr 902 1989 2 e r 743 also cooper v williams 1963 2 qb 567 1963 2 e r 282 inrofa sport v h l ltdneill l j 911 observed judgment sake clarity certainty word stay order treated possible equivalent dismissal discontinuance action cannot proceed resume active life without order court consider properly regarded dead way action dismissed discontinued order incooper v williams anor 1963 2 qb 567the court appeal considered circumstance consent order made settlement infant deceased parent motor accident claim effect excluding claim widow deceased consent order provided proceeding action stayed lord denning r held 580 effect stay equivalent discontinuance judgment plaintiff defendant stay may removed proper ground shown cooper v williamswas cited approval inlambert v mainland market delivery limited latter case recently cited approval court appeal incockerill v tambrands limited 1998 ewca civ 882 1998 1 wlr 1379 1385 upon introduction current rule court clearly resolved change provision modelled upon english provision would appear far rule 5 09 1 2 concerned drafting sub rule draw upon experience common law system may entirely new substitution word proceeding stayed word shall come end change purpose rule whereas previous rule proceeding stayed could reinstated exercise discretion court accordance authority new rule could approach court incooper v williams lambert v mainland market delivery limitedandrofa sport v dhl limitedis applied rule 5 09 said even payment made rule proceeding dismissed discontinued order hence accordance observation neill lj inrofa sport v dhl limited supra proceeding cannot properly regarded dead rule 5 09 come play judgment given rather proceeding becomes word lawton lj inlambert v mainland market limited p 834 static sense cannot move action stayed started order court certain circumstance seelambert v mainland market limited supra proceeding come end contemplated rule 5 09 different situation proceeding come end result judgment order purpose rule 5 09 considered light apparent proceeding forever terminated would case order judgment made arising application rule case intent purpose upon defendant taking step accordance rule 5 09 proceeding frozen court change status basis ofs 36of theinterpretation legislation act1984
BHQ15 v Minister for Immigration & Anor [2018] FCCA 181 (26 February 2018).txt	bhq15 v minister immigration anor 2018 fcca 181 26 february 2018 last updated 27 february 2018federal circuit court australiabhq15 v minister immigration anor 2018 fcca 181catchwords migration judicial review decision former refugee review tribunal iranian citizen muslim converting christianity complementary protection claim whether error misapplying test whether real risk significant harm applicant return iran whether jurisdictional error writ issued legislation migration act 1958 cth s 5 36 65 474 476cases cited attorney general state new south wale v quin 1990 170 clr 1 1990 64 aljr 327 1990 33 ir 263 1990 93 alr 1chan v minister immigration ethnic affair 1989 169 clr 379 1989 63 aljr 561 1989 87 alr 412minister immigration citizenship v szqrb 2013 fcafc 33 2013 210 fcr 505 2013 296 alr 525 2013 132 ald 269minister immigration citizenship v szqrb 2013 hcatrans 323minister immigration ethnic affair v guo anor 1997 hca 22 1997 191 clr 559 1997 71 aljr 743 1997 144 alr 567 1997 48 ald 481minister immigration ethnic affair v wu liang 1996 185 clr 259 1996 70 aljr 568 1996 136 alr 481 1996 41 ald 1minister immigration multicultural affair v yusuf 2001 hca 30 2001 206 clr 323 2001 75 aljr 1105 2001 180 alr 1 2001 62 ald 225plaintiffs157 2002v commonwealth australia 2003 hca 2 2003 211 clr 476 2003 77 aljr 454 2003 195 alr 24 2003 72 ald 1srbb v minister immigration multicultural indigenous affair 2003 fca 1387 2003 79 ald 723szgts v minister immigration citizenship 2009 fca 1353 2009 112 ald 443szmkk v minister immigration citizenship 2009 fca 1340 2009 112 ald 278szmkk v minister immigration citizenship 2010 fca 436 2010 114 ald 634szrci v minister immigration citizenship anor 2012 fca 965 2012 214 fcr 584szskc v minister immigration anor 2014 fcca 938applicant bhq15first respondent minister immigration border protectionsecond respondent administrative appeal tribunalfile number peg 309 2015judgment judge antoni lucevhearing date 20 may 2016 29 july 2016date last submission 29 july 2016delivered perthdelivered 26 february 2018representationfor applicant person assistance interpreter 20 may 2016 mr r jahnke counsel 29 july 2016solicitors applicant reuben saul jahnke 30 june 2016 counsel first respondent mr p macliver 20 may 2016 andmr p corbould 29 july 2016 second respondent submitting appearance save costssolicitors respondent australian government solicitororders 1 writ certiorari issue quashing decision second respondent made 12 june 2015 2 writ mandamus issue requiring second respondent rehear application review made applicant 21 march 2014 federal circuit courtof australiaat perthpeg 309 2015bhq15applicantandminister immigration border protectionfirst respondentadministrative appeal tribunalsecond respondentreasons judgmentintroductionon 8 july 2015 applicant lodged application judicial review judicial review application pursuant tos 476of themigration act 1958 cth migration act seeking review decision refugee review tribunal administrative appeal tribunal tribunal decision tribunal respectively dated 12 june 2015 affirm decision delegate delegate decision delegate respectively first respondent minister immigration border protection minister dated 14 march 2014 delegate decision refuse applicant protection class xa visa protection visa unders 65of themigration act copy tribunal decision court book cb 200 222 background prior tribunal decisionthe background prior tribunal decision follows applicant citizen iran born 17 april 1987 arrived australia christmas island illegal maritime arrival 10 august2012 cb 1 26 129 12 november 2012 applicant applied former department immigration citizenship department immigration border protection department protection visa cb 26 applicant interviewed delegate 26 march 2013 14 march 2014 delegate decision refuse grant protection visa applicant cb 106 128 142 21 march 2014 applicant applied tribunal review delegate decision cb 157 159 applicant invited attended hearing tribunal 1 april 2015 give evidence present argument together migration agent representative assistance interpreter cb 172 173 194 196 201 3 andon 12 june 2015 tribunal affirmed delegate decision grant applicant protection visa cb 200 222 applicant advised delegate decision letter dated 16 june2015 cb 223 224 tribunal decisionin tribunal decision tribunal noted applicant claimed fear returning iran principally conversion christianity cb 202 9 andobserved response question tribunal applicant indicated feared returning iran blacklisted claimed promoting christianity interest authority andwas also scared travelled outside iran authority aware whereabouts cb 215 79 relation applicant claim evidence tribunal found applicant credible witness result cumulative concern arising inconsistency inability provide convincing credible explanation aspect claim gap claim tribunal formed view truthful reason departing iran cb 208 46 accept applicant friend muslim converted christianity iran attended church weekly basis accept applicant went church tehran friend cb 210 53 54 accept applicant converted christianity converted heart christianity iran iranian authority secret police etilaat visited father taken adverse interest applicant reason cb 211 56 satisfied applicant fact genuine convert christianity rather advanced conversion claim purpose securing permanent visa remain australia cb 213 63 satisfied applicant baptism church attendance since arriving australia engaged otherwise purpose strengthening claim refugee conclusion arrived amongst reason applicant lack pre existing interest christianity lack research religion aspect christianity australia cb 215 74 accept applicant baptism church attendance would known iran given tribunal found applicant baptism church attendance done sole purpose strengthening claim refugee accept would told anybody iran converted therefore accept anybody would know conversion iran cb 215 75 accept applicant abandoned islam would imputed done genuine convert christianity would imputed convert cb 215 77 said cb 215 78 follows 78 tribunal reject proposition applicant would practise christian worshipper return tehran tribunal find applicant genuine christian convert satisfied would perceived regarded one return iran therefore real chance would persecuted reason christian religious belief fear harm respect christian conversion therefore well founded found applicant never involved political religious activity within iran fit profile person appear risk return iran cb 216 84 accept applicant blacklist iranian authority accept result seeking asylum australia returnee western country applicant would imputed political opinion opposed iranian regime cb 216 84 accepted real chance applicant would questioned monitored return iran found treatment amount serious harm persecution within meaning refugee convention cb 216 85 found applicant well founded fear persecution reason membership particular social group failed asylum seeker failed asylum seeker western country person spent time western country reason imputed political opinion iranian regime result seeking asylum western country cb 217 86 considered applicant claim individually cumulatively satisfied applicant person australia owes protection obligation refugee convention found applicant satisfy criterion in 36 2 themigration act cb 217 87 andin assessment applicant claim complementary protection criterion in 36 2 aa themigration act regard earlier finding accept substantial ground believing necessary foreseeable consequence applicant removed australia iran real risk applicant would suffer significant harm defined in 36 2a themigration act cb 217 218 88 95 particular tribunal accept applicant genuinely converted christianity would seek practise promote christianity iran anyone iran aware likely become aware applicant interest christianity baptised attended church therefore satisfied substantial ground believing real risk applicant suffer significant harm return iran consequently accept substantial ground believing necessary foreseeable consequence applicant removed australia iran real risk suffer significant harm basis claim cb 217 89 amended judicial review applicationpursuant order made court 20 may 2016 applicant filed amended judicial review application amended judicial review application 30 june 2016 containing single ground application follows 1 second respondent erred law misapplying test whether substantial ground believing necessary foreseeable consequence applicant removed australia receiving country real risk suffer significant harm particularsa applicant raised claim unders 36 2 aa themigration act 1958 cth act necessary foreseeable consequence removed australia iran likely suffer cruel inhuman degrading treatment perpetrated agent iranian government b second respondent accepted real risk applicant would questioned monitored returned iran accept anyone iran aware islikelyto become aware applicant interest christianity baptised attended church emphasis added c consequently second respondent satisfied substantial ground believing real risk applicant suffer significant harm return iran applicant may still face real risk significant harm even harm likely occur e finding applicant would face real risk significant harm harm likely second respondent made error law considerationjurisdictional error requiredthe tribunal decision judicially reviewable court affected jurisdictional error migration act s 474and476 plaintiffs157 2002v commonwealth australia 2003 hca 2 2003 211 clr 476 2003 77 aljr 454 2003 195 alr 24 2003 72 ald 1at 76 per gaudron mchugh gummow kirby hayne jj tribunal make jurisdictional error identifies wrong issue asks wrong question ignores relevant material orrelies irrelevant material way tribunal exercise purported exercise power thereby affected resulting decision exceeding failing exercise authority power given themigration act minister immigration multicultural affair v yusuf 2001 hca 30 2001 206 clr 323 2001 75 aljr 1105 2001 180 alr 1 2001 62 ald 225at 82 per mchugh gummow hayne jj merit reviewthis court jurisdiction review merit tribunal decision determine applicant protection visa claim minister immigration ethnic affair v wu liang or 1996 185 clr 259 1996 70 aljr 568 1996 136 alr 481 1996 41 ald 1 wu liang clr 272 per brennan cj toohey mchugh gummow jj attorney general state new south wale v quin 1990 170 clr 1 1990 64 aljr 327 1990 33 ir 263 1990 93 alr 1 quin clr 35 36 per brennan j ground 1 submissionsapplicant submissionsthe applicant submission follows tribunal erred law misapplying test whether substantial ground believing necessary foreseeable consequence applicant removed australia receiving country real risk suffer significant harm assessing applicant claim unders 36 2 themigration act tribunal considered relevance applicant conduct australia namely christian baptism church attendance considering conduct tribunal satisfied applicant baptism church attendance since arriving australia engaged otherwise purpose strengthening claim refugee cb 215 74 tribunal required correctly disregard applicant conduct australia making assessment well foundedness applicant claim protection unders 36 2 themigration act tribunal stated tribunal decision 91r 3 themigration act requires tribunal disregard conduct determining whether claimant well founded fear persecution find carried sole purpose strengthening refugee claim cb 215 76 considering applicant complementary protection claim unders 36 2 aa themigration act tribunal wasrequired consider applicant conduct australia namely christian baptism church attendance previously disregarded assessment unders 36 2 themigration act tribunal accepted real risk applicant would questioned monitored return iran cb 218 93 accept anyone iran aware likely become aware applicant interest christianity baptised attended church cb 217 89 based finding likely anyone iran would become aware applicant conduct australia baptism church attendance tribunal concluded real risk applicant would suffer significant harm necessary foreseeable consequence removed australia iran said cb 217 89 consequencethe tribunal accept substantial ground believing necessary foreseeable consequence applicant removed australia iran real risk suffer significant harm basis claim emphasis added finding applicant would face real risk significant harm risk occurrence likely minister made error law reason follow firstly real risk test prescribed bys 36 2 aa themigration actimposes standard real chance test applicable assessment well founded fear unders 36 2 themigration act minister immigration citizenship v szqrb 2013 fcafc 33 2013 210 fcr 505 2013 296 alr 525 2013 132 ald 269 szqrb 246 per lander gordon jj case honour found threshold likely appropriate standard szqrbat 247 per lander gordon jj andsecondly language used tribunal indicates approached assessment balance probability significantly higher standard required real chance real risk test applicant may still face real risk significant harm even harm unlikely occur inchan v minister immigration ethnic affair 1989 169 clr 379 1989 63 aljr 561 1989 87 alr 412 chan clr 429 per mchugh j stated decision sivakumaran cardoza fonseca also establish fear may well founded purpose convention protocol even though persecution unlikely occur united state supreme court pointed cardoza fonseca applicant refugee status may well founded fear persecution even though 10 per cent chance shot tortured otherwise persecuted obviously far fetched possibility persecution must excluded real chance applicant persecuted fear characterised well founded purpose convention protocol describing standard risk likely minister used language akin unlikely term described inszskc v minister immigration anor 2014 fcca 938 szskc 39 per judge lloyd jones infelicitous language test satisfied need precise selection wording inszskcat 82 per judge lloyd jones court found independent merit reviewer fell jurisdictional error assessing real risk observed follows resolution matter within relatively narrow compass depends upon correct test applied reviewer determining whether applicant entitled operation complementary protection criterion fair reading reviewer reason disclose precise test applied reasoning process however assessment language used appears balance probability test approach adopted although word balance probability appear face decision record language used unlikely mean generally language leaf open real possibility applicant imprisoned return iran language consistent high court decision chan supra guo supra also consistent honour flick j decision szrci stated need show probable occur simply need real risk negligible insignificant assistance found decision srbb supra mansfield j considered phrase extremely unlikely found consistent application real chance test form description make clear reviewer applying balance probability test applicant may still face real risk significant harm even harm likely occur description risk likely left open real possibility applicant suffer significant harm minister submissionsthe minister submission follows sole basis applicant contends tribunal failed apply correct test tribunal use word likely tribunal decision cb 217 89 tribunal accept applicant genuinely converted christianity though sic baptism church attendance would seek practise promote christianity iran anyone iran aware islikelyto become aware interest christianity baptised attended church tribunal satisfied substantial ground believing real risk applicant suffer significant harm return iran emphasis added need borne mind tribunal decision must read whole beneficially construed construed minutely search error erroneous adopt narrow approach searching tribunal decision verbal slip said warrant error law inferred wu liang clr 271 272 per brennan cj toohey mchugh gummow jj 291 per kirby j tribunal failure accept event likely occur demonstrate misapplied real risk test tribunal decision tribunal repeatedly referred real risk test cb 201 4 cb 217 89 twice 90 91 92 cb 218 93 94 95 cb 220 111 113 4 time term balance probability appears nowhere within tribunal decision long leap required conclude tribunal fact applying balance probability assessment proper role court undertaking judicial review taken account wu liang clr 280 per brennan cj toohey mchugh gummow jj particularly tribunal sentence us word likely also correctly refers real risk test event tribunal reference likely cb 217 89 inconsistent correct application real risk real chance test andthe tribunal statement accept anyone iran aware likely become aware applicant interest christianity baptised attended church cb 217 89 equated finding real possibility someone iran would become aware applicant interest christianity baptised attended church even tribunal consider real possibility nothing suggest failed take account reaching conclusion satisfied substantial ground believing necessary foreseeable consequence applicant removed australia real risk would suffer significant harm ground 1 considerationthe tribunal decision lengthy running attachment 23 page 119 paragraph tribunal examination claim factual material submission application detailed see tribunal decision cb 201 207 8 42 tribunal finding tribunal decision also lengthy detailed examine claim made applicant factual material relation thereto plus relevant country information various federal court authority relation assessment genuineness religious belief cb 208 218 43 95 attribute tribunal decision require court give careful cautious consideration tribunal ultimate determination relation applicant complementary protection claim tribunal finding relation complementary protection entirety follows 88 concluded applicant meet refugee criterion in 36 2 tribunal considered alternative complementary protection criterion in 36 2 aa 89 tribunal accept applicant genuinely converted christianity baptism church attendance would seek practise promote christianity iran anyone iran aware likely become aware interest christianity baptised attended church tribunal satisfied substantial ground believing real risk applicant suffer significant harm return iran consequence tribunal accept substantial ground believing necessary foreseeable consequence applicant removed australia iran real risk suffer significant harm basis claim 90 reason discussed tribunal find applicant come adverse attention iranian authority attended church iran took photo inside church iran promoted christianity iran considering available evidence tribunal satisfied applicant religious activist religious activist future tribunal satisfied substantial ground believing necessary foreseeable consequence removed australia iran real risk suffer significant harm basis claim 91 reason discussed tribunal satisfied substantial ground believing necessary foreseeable consequence removed australia iran real risk suffer significant harm seeking asylum western country returnee west reason imputed political opinion iranian regime seeking asylum western country returnee west 92 reason discussed tribunal satisfied substantial ground believing necessary foreseeable consequence removed australia iran real risk suffer significant harm iranian authority political opinion anti islamic stance actual imputed membership particular social group failed asylum seeker failed asylum seeker western country person spent time wester country combination thereof 93 tribunal accepts real risk applicant would questioned monitored return iran may questioned away left tribunal find treatment amount significant harm within meaning ofs5and s36 2a act 94 regard finding fact respect specific claim made factual basis claimed fear harm well considering applicant claim cumulatively tribunal accept substantial ground believing necessary foreseeable consequence removed australia iran real risk arbitrarily deprived life death penalty carried subjected torture subjected cruel inhuman treatment punishment subjected degrading treatment punishment defined 95 accordingly tribunal accept substantial ground believing necessary foreseeable consequence applicant removed australia pakistan real risk suffer significant harm defined insubsection 36 2a act tribunal therefore satisfied person australia protection obligation unders 36 2 aa cb 217 218 88 95 tribunal also set attachment tribunal decision relevant law cb 219 222 100 119 including explanation tribunal understanding constitutes well founded fear persecution cb 220 108 follows 108 fourth applicant fear persecution convention reason must well founded fear add objective requirement requirement applicant must fact hold fear person well founded fear persecution convention genuine fear founded upon real chance persecuted convention stipulated reason real chance one remote insubstantial far fetched possibility person well founded fear persecution even though possibility persecution occurring well 50 per cent law relation complementary protection criterion set cb 220 111 113 follows 111 person found meet refugee criterion in 36 2 may nevertheless meet criterion grant protection visa non citizen australia respect minister satisfied australia protection obligation minister substantial ground believing necessary foreseeable consequence applicant removed australia receiving country real risk suffer significant harm 36 2 aa complementary protection criterion 112 significant harm purpose exhaustively defined in 36 2a 5 1 person suffer significant harm arbitrarily deprived life death penalty carried person person subjected torture cruel inhuman treatment punishment degrading treatment punishment cruel inhuman treatment punishment degrading treatment punishment torture defined in 5 1 act 113 certain circumstance taken real risk applicant suffer significant harm country arise would reasonable applicant relocate area country would real risk applicant suffer significant harm applicant could obtain authority country protection would real risk applicant suffer significant harm real risk one faced population country generally faced applicant personally 36 2b act basis applicant contends tribunal failed apply correct test tribunal use word likely cb 217 89 set see 9 11 relevant passage fromchanis set 8 g ii show order real chance real risk persecution 10 per cent chance persecution might suffice thus well founded fear persecution might exist even though persecution unlikely occur chan clr 418 per mchugh j evident reading relevant paragraph cb 217 89 tribunal accept likely anyone iran would become aware applicant interest christianity baptism church attendance whilst australia court find use phrase accept conjunction word likely equates finding likely unlikely relevant purpose importance ofchanwas recognised inminister immigration ethnic affair v guo anor 1997 hca 22 1997 191 clr 559 1997 71 aljr 743 1997 144 alr 567 1997 48 ald 481 guo clr 572 per brennan cj dawson toohey gaudron mchugh gummow jj high court said fear well founded real substantial basis chan show substantial basis fear may exist even though far le 50 per cent chance object fear eventuate fear well founded purpose convention unless evidence indicates real ground believing applicant refugee status risk persecution insrbb v minister immigration multicultural indigenous affair 2003 fca 1387 2003 79 ald 723 srbb 31 per mansfield j held tribunal finding extremely unlikely eritrean government might aware application protection visa consistent proper consideration real chance test insrbbthe federal court went find jurisdictional error reason misapplication real chance test tribunal elsewhere expressed term consistent high court view term likelihood srbbat 32 per mansfield j inszmkk v minister immigration citizenship 2009 fca 1340 2009 112 ald 278 szmkk 1 federal court allowed application extension time file notice appeal judgment federal magistrate court observed 16 per jagot j although federal magistrate considered issue potential misapplication real chance test great care honour also careful record difficulty resolving issue involves drawing inference tribunal reason inference nature inherently contestable hearing appeal extension time granted inszmkk 1 federal court dismissed appeal circumstance plausible evidence show appellant would suffer significant harm reasonably foreseeable future returned country origin expressly found evidence established real chance persecution would suffered szmkk v minister immigration citizenship 2010 fca 436 2010 114 ald 634at 54 per barker j szmkk 2 appear finding made inszmkk 2 basis likelihood certain event occurring event applicant returned country origin fact federal court referred plausible evidence evidence established real chance szmkk 2 54 per barker j mean finding tribunal decision case equivalent finding extremely unlikely referred insrbbat 31 per mansfield j consistent view bothszmkk 2 andsrbbthose comment said give rise misapplication real chance test inszgts v minister immigration citizenship 2009 fca 1353 2009 112 ald 443 szgts federal court dealt appeal decision federal magistrate court alleged federal magistrate court misconstrued criterion grant protection visa in 36 2 themigration actand thereby constructively failed exercise discretion szgtsat 14 per tracey j federal court noted inszgtsat 18 per tracey j tribunal directed applicant fear persecution convention reason must well founded fear add objective requirement requirement applicant must fact hold fear person well founded fear persecution convention genuine fear founded upon real chance persecution convention stipulated reason fear well founded real substantial basis merely assumed based mere speculation real chance one remote insubstantial far fetched possibility person well founded fear persecution even though possibility persecution occurring well 50 per cent contended tribunal misdirected quoted passage federal court acknowledged consistent authority bothchanandguo szgtsat 19 per tracey j impugned passage tribunal decision consideration inszgtswas set federal court inszgtsat 20 per tracey j follows appellant case despite correct statement principle tribunal applied balance probability test rejected claim well founded fear persecution error submitted discerned passage appears heading future harm last page tribunal reason decision tribunal said noted satisfied applicant falun gong practitioner china member family ever suffered harm reason reason believe would face harm return china anything occurred prior departure accept since arriving australia involved degree falun gong practitioner activity satisfied reason strengthen claim refugee satisfied would seek practise falun gong involve falun gong activity returned china satisfied would flow fear part consequence regard nature falun gong activity australia satisfied would targeted chinese authority anything done federal court isolated tribunal finding follows set inszgtsat 24 per tracey j satisfied would seek practise falun gong involve falun gong activity returned china satisfied would flow fear part consequence satisfied would targeted chinese authority anything done inszgtsthe federal court concluded follows 25 26 per tracey j 25 read context finding amount prediction flow logically conclusion dedicated committed falun gong practitioner australia embraced movement purpose assisting application protection visa first two prediction relate indirectly question whether appellant objectively well founded fear persecution return china substance tribunal reasoned appellant committed falun gong practitioner would practise china failure would result lack commitment fear consequence reason satisfied real chance appellant would suffer harm china involvement falun gong australia 26 third finding deal directly question whether appellant well founded fear persecution reason activity australia context use word would open criticism suggestive application balance probability test however possible reconcile use word application real chance test regard reason whole particular ultimate finding follow line later persuaded tribunal applied wrong test court observes finding inszgtsincluded fact tribunal considered reason believe applicant case would face harm return china szgtsat 20 per tracey j language analogous language used insrbbwhere tribunal decision said extremely unlikely government applicant home country might aware application protection visa srbbat 31 per mansfield j inszrci v minister immigration citizenship anor 2012 fca 965 2012 214 fcr 584 szrci 38 per flick j observed meaning well founded fear persecuted settled referred tochan including passage cited 8 g ii federal court inszrciat 39 per flick j observed follows claimant need therefore positively prove persecuted even event probable szmkk v minister immigration citizenship 2010 fca 436at 25 per barker j remote chance real chance szqgn v minister immigration citizenship 2012 fca 436 2012 127 ald 299at 4 per katzmann j inszqrbat 242 246 per lander gordon jj said 242 proper test szqrb contended whether real risk szqrb returned afghanistan would arbitrarily deprived life question real chance course test applied application protection visa unders 36 2 themigration act considering whether applicant well founded fear applicant face persecution convention reason returned applicant country nationality chan per mchugh j clr 429 mason cj clr 389 dawson j clr 398 toohey j clr 407 246 opinion test fors 36 2 themigration act stated szqrb real chance szqrb suffer significant harm defined in 36 2a themigration act returned afghanistan application special leave appeal high court fromszqrbwas refused inminister immigration citizenship v szqrb 2013 hcatrans 323 inszskcthe issue arose whether independent merit reviewer erred misapplying complementary protection test applicant claimed fear harm account faili kurd ethnicity status stateless person failed asylum seeker returning iran latter giving rise claim faced real risk significant harm account prison condition would face upon return iran szskcat 7 10 per judge lloyd jones summary inszskc independent merit reviewer referred material authoritative source suggested person imprisoned iran may face significant harm considered unlikely applicant would imprisoned upon return andconcluded unlikely applicant imprisoned substantial ground believing applicant would suffer significant harm direct foreseeable consequence returned iran szskcat 12 per judge lloyd jones inszskcthe court reviewed authority includingchan szqrb szrciandsrbb court also referred toszcbt v minister immigration multicultural affair 2007 fca 9 szcbt federal court dealt argument tribunal decision refugee review tribunal given beneficial construction consistent withwu liang clr 271 272 per brennan cj toohey mchugh gummow jj federal court observed szcbtat 26 per stone j giving tribunal decision beneficial construction phrase used inwu liangwas intended mean ambiguity tribunal decision ought resolved tribunal favour andrather construction tribunal decision ought beneficial sense tribunal decision ought zealously scrutinised search error inszskcat 39 per judge lloyd jones court described use term unlikely infelicitous language andsaid test satisfied need precise selection wording inszskcat 82 per judge lloyd jones court went observe independent merit reviewer reason disclose precise test applied reasoning process assessment language appeared balance probability test applied even though appear face tribunal decision andthe use unlikely mean generally leaf open real possibility applicant imprisoned return iran court inszskcwent contrast language used independent merit reviewer language tribunal decision considered insrbbwhere phrase extremely unlikely found consistent application real chance test szskcat 82 per judge lloyd jones court accept minister argument applicant zealously scrutinised tribunal decision find use word likely cb 217 89 use foundation assertion jurisdictional error respect given nature various judgment high court full court federal court federal court court relation similar issue period almost 30 year sincechanwas decided alleged error one might said stand thus readily observable legal practitioner experience judicial review proceeding themigration actacting applicant case circumstance tribunal decision read searching error narrowly ought construed beneficially expressly refer balance probability test andis otherwise comprehensive thorough court must careful consideration whether infelicitous use single word likely single sentence tribunal decision cb 217 89 indicates tribunal properly apply real risk test plain tribunal understood real chance test nature set described tribunal decision cb 201 4 220 108 mere recitation correct test however substitute proper application matter lengthy detailed tribunal decision might srbbat 28 30 per mansfield j szgtsat 23 per tracey j accepted real chance test real risk test szqrbat 242 246 per lander gordon jj readily apparent however tribunal appreciated whilst court might ordinarily infer regard nature frequency function carried tribunal court note nowhere equivalence real risk real chance test referred tribunal decision court note tribunal accepted real risk applicant would questioned monitored return iran cb 218 93 tribunal went find applicant would questioned away left find constitute significant harm within meaning ofss 5and36 2a themigration act tribunal however said nothing nature monitoring applicant iran despite accepted applicant monitored real risk upon return iran cb 218 93 fact real risk applicant would monitored return iran considered tribunal regard country information set earlier tribunal decision albeit relation applicant muslim friend said converted christianity tribunal also regard dfat report perceived apostate likely come attention iranian authority event public manifestation new faith attendance church informant also allegation authority monitor attendance church religious holiday ensure muslim present cb 210 53 although tribunal accept applicant would seek practise christianity iran anyone likely become aware interested christianity baptised attended church australia use likely context leaf open real possibility activity australia might come attention iranian authority particularly circumstance possible would monitored iranian authority informed upon informant exposed penalty apostasy iran cb 210 211 55 according country information available tribunal included death penalty see cb 119 freedom house report cb 123 guardian cb 127 amnesty international possibility exposed passage precise test applied set likelihood someone iran becoming aware applicant interest christianity baptised attended church australia couched language particularly factual background informant monitoring acknowledged tribunal make possibility likelihood far fetched remote circumstance sufficient indicate real ground applicant well founded fear persecution considered tribunal properly apply real risk test court note finding applicant christian suffice exclude possibility activity baptism church attendance australia might matter brought attention iranian authority would preclude applicant well founded fear persecution basis engaged activity australia even found tribunal christian intend practise christianity returned iran circumstance court concluded tribunal apply real risk test applicant purpose assessing applicant complementary protection claim relation whether anyone iran might become aware applicant interest christianity baptised attended church whilst australia whether gave rise well founded fear persecution upon part applicant suffices establish jurisdictional error tribunal decision alleged sole ground amended judicial review application conclusion ordersthe court concluded sole ground amended judicial review application made therefore jurisdictional error tribunal decision prerogative relief afforded applicant way writ certiorari mandamus court hear party cost certify preceding forty three 43 paragraph true copy reason judgment judge antoni lucevassociate date 26 february 2018
Construction, Forestry, Maritime, Mining and Energy Union [2021] FWCA 2990 (25 May 2021).txt	construction forestry maritime mining energy union 2021 fwca 2990 25 may 2021 last updated 26 may 2021 2021 fwca 2990fair work commissiondecisionfair work act 2009s 185 enterprise agreementconstruction forestry maritime mining energy union ag2021 5107 raw recruitment service pty ltd cfmeu victorian construction general division indigenous employment training enterprise agreement 2020 2023building metal civil construction industriescommissioner johnssydney 25 may 2021application approval raw recruitment service pty ltd cfmeu victorian construction general division indigenous employment training enterprise agreement 2020 2023 1 application made approval enterprise agreement known theraw recruitment service pty ltd cfmeu victorian construction general division indigenous employment training enterprise agreement 2020 2023 agreement application made pursuant tos 185of thefair work act 2009 act made construction forestry maritime mining energy union agreement single enterprise agreement 2 satisfied requirement ofss 186 187and188as relevant application approval met 3 pursuant tos 202 4 act model flexibility term prescribed thefair work regulation 2009is taken term agreement 4 clause 21 1 agreement provides employer shall remain life agreement participating employer construction building union superannuation scheme cbus employee shall commence employment unless registered member cbus clause 21 1 appears inconsistent thetreasury law amendment superannuation choice act 2020 super choice act super choice act amended thesuperannuation guarantee administration act 1992 sga act super choice act amended sga act clause workplace determination enterprise agreement restricts employee choice superannuation enforceable agreement made 1 january 2021 5 construction forestry maritime mining energy union bargaining representative agreement given notice 183 act want agreement cover accordance 201 2 note agreement cover organisation 6 agreement approved accordance 54 act operate 1 june 2021 nominal expiry date agreement 30 june 2023 commissionerprinted authority commonwealth government printer ae511597pr730140
Benclutch Pty Limited v Liverpool City Council [2012] NSWLEC 1284 (15 October 2012).txt	benclutch pty limited v liverpool city council 2012 nswlec 1284 15 october 2012 last updated 10 december 2012land environment courtnew south walescase title benclutch pty limited v liverpool city councilmedium neutral citation 2012 nswlec 1284hearing date 3 4 october 2012 final order 30 november 2012decision date 15 october 2012jurisdiction class 1before hussey cdecision appeal upheld condition consent dfe development 20 scrivener street warwick farm modified shown attachment b exhibit may returned except 1 3 5 p catchword development modification extension early morning operating hour heavy vehicle access industrial use traffic safety sleep disturbancelegislation cited environmental planning assessment act 1979liverpool local environmental plan 2008cases cited telstra corp ltd v hornsby shire council 2006 nswlec 133category principal judgmentparties benclutch pty limited applicant liverpool city council respondent representation counsel counselms duggan sc applicant mr pickle bar respondent solicitor solicitorsblackstone waterhouse lawyer applicant sparke helmore respondent file number 10022 2012judgmentbackgroundthis appeal council refusal 96application modify approved hour operation direct freight express dfe warehousing distribution development located 20 scrivener street warwick farm whilst subject property situated within warwick farm industrial area vehicular access adjoining lowdensity residential area containing equine activity development consent granted 13 august 2007 included following condition 24 hour operation24 hour operation must limited 6 00am 9 30pm monday friday order facilitate orderly receipt distribution good warehouse applicant initially sort extend operating hour 24 7 basis however consideration issue raised council modification proposes following traffic arrangement table 1weekdays3 30am 6 00amsemi trailer b doublesmaximum 8trucks arrivingper weekdayworkforce cars42 car arrivingwith majority 30 car 5am 6am and8 car departingthe premise per weekday9 30pm 10 30pmsemi trailer b doublesmaximum of4 truck departingper weekdayworkforce cars2 car departingthe premise per weekdaysaturday3 30am 6 00amsemi trailer b doublesmaximum of12 truck arrivingper saturday and2trucksdeparting premise per saturday 7 00am middayworkforce cars12 car departingper saturday workforce cars6 car arrivingat premisesand 6 car departingper saturday sunday7 00am 9 00amsemi trailer b doubles1 truck arrivingat premise per sunday workforce cars1 car departingthe premise per sunday 4 00pm 7 00pmsemi trailer b doublesa maximum of1 truck arrivingat premise and3 truck departingthe premise per sunday workforce cars3 car arrivingand2 car departingthepremises per sunday consequently amended contention concern potential traffic conflict heavy vehicle equine activity extended early morning period andii acoustic issue concerning sleep disturbance arising early morning passage heavy vehicle adjacent residential area sitethe subject site described lot 201 dp 801262 irregular shape combined street frontage scrivener street 269 area approximately 7 416 ha site located within general warwick farm industrial area currently occupied warehouse distribution centre site adjoins rosedale park north various industrial us south west residential development exists north west site east lie liverpool sewerage treatment plant one route vehicle access industrial area via priddle street manning street munday street lesser extent warwick street area detail shown plan attachment planning controlsthe main control theliverpool lep2008 site zoned in1 general industrial subject development permissible according thepart 2provisions relevantly zone objective include provide wide range industrial warehouse us encourage employment opportunity tominimiseany adverse effect industry land us support protect industrial land industrial purpose adjoining zone containing equine facility zone r2 low density residential following objective provide housing need community within low density residential environment enable land us provide facility service meet day day need resident provide suitable low scale residential character commensurate low dwelling density ensure high level residential amenity achieved maintained clause 16 specifically applies low density zone follows 16 use certain land warwick farm zone r2 1 clause applies land zone r2 low density residential east southern rail line warwick farm 2 development following purpose permitted consent animal boarding training establishment b farm building c veterinary hospital associated development control contained within theliverpool dcp2008 dcp part 7deals industrial development basis following relevant control amenity environmental impactbackgroundindustrial related development potential cause significant environmental impact term odour noise discharge impact addressed theprotection environment operation act 2008 however design operation development industrial area contribute avoiding issue impact may sensitive land us nearby residential area us within industrial area range us permitted industrial area quite significant necessary consider impact land us within industrial zone objectivesa ensure neighbouring property adversely affected operationon site b minimise potential detrimental impact pollution dust noise odour traffic control hour operationdevelopment would adverse impact adjoining nearby residential area limited 7 6 pm monday friday 7 12 pm saturday work undertaken sunday evidencedetailed evidence response contention presented mr c wiafe council traffic engineermr j coady applicant traffic engineermr cooper council acoustic consultantdr r tonin applicant acoustic consultant traffic issuesthe main traffic issue concern potential safety risk arising truck movement extended early morning operating hour arises heavy vehicle route industrial area pass low density residential area considerable number horse training establishment horse area horse training involves access nearby warwick farm racecourse via part transport route however tunnel located hope street provides main access governor macquarie drive racetrack main safety risk concern possible conflict handler taking horse track use cross existing road particularly manning street would subject redistribution large vehicle movement 3 30 however majority land occupier horse area alternative route racecourse thereby avoiding risk respect modified truck movement mr coady say involves redistribution existing truck movement spreading longer period number truck generated extended early morning hour relatively minor shown table 1 say benefit avoids congestion existing approved hour 6 00 b double routeinsofar discussion route applicant heavy vehicle shown attachment collector road designated b double route following discussion traffic expert limitation designated route use appears unrestricted applicant applied b double access december 2006 rta referred council consideration according letter marked received 20 february 2007 consequently b double route approved unrestricted basis shown b double travel restriction exhibit j considered content exhibit note significant number restriction b double route including time restriction shown following example b double travel restrictionsno descriptionb105no travel permitted 6 00 10 00am 3 00 7 00pm epping railway bridge b107access hume hwy delivery possible outside 8 00 9 30am 2 30 4 00pm mon fri b109no travel permitted 7 00 10 00am 3 00 7 00pm weekday left turn victoria rd b111no travel permitted 7 00 9 00am 3 00 5 00pm school day b112no travel permitted 7 00 9 00am 3 00 5 00pm school day trailer must left 6 hour uncoupling area public reserve b113no travel permitted 7 00 9 00am 4 00 6 00pm b115no travel permitted 7 30 8 30am 3 30 5 00pm school day b116no travel permitted 7 30 8 30am 4 00 5 00pm school day b118no travel permitted 7 30 9 00am 3 00 4 30pm school day b119no travel permitted 7 30 9 00am 3 00 5 00pm maximum speed limit 80km h applies b120no travel permitted 7 30 9 00am 3 30 5 00pm school day b121no access permitted school bus time maximum speed limit 80km h applies accordingly mr coady say route assessment process would considered existence constraint existing horse training area include time restriction restrictive hour operation contained within dcp reasonably varied circumstance application mr wiafe say extended hour allowed would inconsistent zone objective minimise adverse effect industry land us say potential conflict road safety concern horse vehicular traffic early morning also sleep disturbance impact therefore considers extended hour permitted achieve intent lep dcp objective response concern mr coady mr wiafe undertook separate road use survey ass horse crossing vehicle count compiled table 2 table 2jc surveycw reportcrossing manning stapproach depart manning st3 4am4404 5am2430115 6am2639446 7am344341the associated horse crossing diagram friday 6 july 2012 show early morning period concentration horse crossing manning street opposite national street secondary crossing opposite southern laneway follows 3 4am4 5am5 6am6 7ameastboundnational street0161211southern lane4551westboundnational street00617southern lane0335from survey mr coady say level horse activity relatively small manning street area early morning period therefore considers level activity adequately safely integrated relatively low level redistributed large delivery vehicle movement way atraffic management plan tmp proposed tmp contained exhibit f based fact proposed early morning delivery dfe truck company driver accordingly driver performance monitored sanction undertaken driver disregard tmp provision tmp provision include b double confined approved b double route driver specially instructed presence handler horse road morning period 3 1 pm must take due care avoid conflict horse semi trailer b double travel maximum speed 30 kph extended hour compression braking air horn used period parking dfe vehicle take place street instead must able enter dfe site directly arrival complaint procedure implemented notwithstanding proposed tmp provision mr wiafe maintained concern accord resident objection relating heavy vehicle movement current speed profile according traffic count carried 2010 2012 manning street 85th percentile speed 60 kph 2010 55 kph 2012 considering existing speed profile concerned enforceability reduced speed dfe truck however mr coady say caution exercised utilising result speed data vehicle travelling along manning street 24 7 basis necessarily representative dfe vehicle extended period considering vehicle unlikely representative dfe large vehicle expected travel slowly car consequently considered disparate traffic opinion conjunction associated acoustic impact issue main concern regard sleep disturbance impact sleep disturbancein considering sleep disturbance impact expert initially disagreed appropriate evaluation criterion dr tonin say applicable criterion arising vehicular traffic epa road noise policy rnp came effect 1 july 2011 say rnp access road site would classified sub arterial accordingly applicable assessment criterion existing residence affected additional traffic stated table 3 rnp level 60 laeq 15 hour 7 10 pm level 55 laeq 9hr 10 pm 7 level measured outside residential premise 1 facade 1 5 floor including upper level two storey residence clause 3 4 1 state existing traffic noise level assessment criterion range feasible reasonable mitigation measure considered rnp recommends increase total traffic noise level existing road generated land use development limited 2 db corresponding build option respect sleep disturbance rnp confirmed ongoing review issue nevertheless main noise characteristic influence sleep disturbance number noisy event heard distinctly background level emergence event highest noise level rnp conclusion maximum internal noise level 50 55 db unlikely awaken people sleep one two noise event per night maximum internal noise level 65 70 db likely affect health wellbeing significantly whilst acknowledging insufficient evidence set definitive indicator potential sleep disturbance due road traffic noise rnp refers nsw rta practice note 3 environmental noise management manual enmm outline protocol assessing reporting maximum noise level potential sleep disturbance however expert also disagree applicability practice note 3 dr tonin say enmm protocol followed potential sleep disturbance arising increased traffic public road e irrespective whether increase traffic arises new redeveloped road traffic generated land use development mr cooper say absence specific council policy dcp relation traffic noise reference could made provision epa environmental criterion road traffic noise ecrtn referred applicant initial application according mr cooper enmm used rta road development assessment industrial site identified significant difference ecrtn rta utilising different traffic noise assessment procedure rta responsible noise control developer required provide noise control concept comparing leq 15 db nominated enmm versus background 15 db vastly distorts concept sleep disturbance nominated rnp notwithstanding mr cooper note council adopted restrictive time policy allowed extension permit haulage activity 7 00 9 30 pm considering existing noisy environment support extended operating hour heavy vehicle however dr tonin undertook noise assessment local environment ass impact arising change vehicular movement night time period due redistributed traffic movement following joint conferring assessment updated per truck leq sel calculation exhibit h summary result noise testing show adjustment thursday night 0 6 db weekday 1 0 db saturday 1 1 db sunday 0 3 db increase le specified 2 db rnp dr tonin say proposal represents minor impact acceptable average person subject compliance proposed noise mitigation measure measure include aforementioned speed restriction truck restriction air horn compression braking internal noisea separate issue concerned noise impact site operation 5am 6am dr tonin assessed matter recommended erection specified 2 5 high acoustic barrier along northern boundary ensure noise level comply epa industrial noise policy mr cooper agrees solution satisfactory outcome rely expert agreement matter satisfactorily dealt way condition conclusionfor determination matter considered evidence submission undertaken view application 96 modification condition 24 existing consent firstly satisfied application relates substantially development next satisfied modification application notified considered various objection conjunction contention raised council term merit application think important context development given appropriate weight warehouse distribution centre operating industrial area since approval 2007 access via designated b double route traverse low density residential area horse area via manning street however industrial area substantially developed attracts variety truck heavy vehicle appears situation ipmg development located opposite subject site subject restricted heavy duty vehicle movement consequently horse area contains mix horse training facility associated residence relatively noisy area determined noise monitoring agreed acoustic expert notwithstanding applicant applied rta approval b double route referral council consideration b double route confirmed without time restriction previously mentioned circumstance note dcp restriction night time heavy vehicle operating hour 6 pm 7 weekday seek qualify b double route usage however council relaxed current circumstance allowing evening operation 9 30 pm accordingly think circumstance unrestricted b double route past variation dcp control allows discretion operating hour subject proposal reasonably achieving stated objective minimise amenity impact extended period stated main issue concern traffic safety sleep disturbance impact regard traffic safety concern proposed redistribution traffic table 1 involves increase workforce vehicle heavy vehicle including semi trailer b double early morning period stated tmp understand evidence mr wiafe primary concern relative subject application heavy truck movement workforce vehicle movement accept position regard mr coady undertook traffic count considered conjunction council past traffic count considered proposed change relative existing traffic movement agree mr coady opinion additional eight 8 heavy vehicle 3 30 6 00 period relatively small increase traffic movement assessment potential interaction additional 8 truck early morning period equine activity able safely managed stated mr coady apparent survey main location conflict along manning street especially crossing leading national street otherwise majority equine activity alternate access racecourse assuming compliance tmp provision specificifically driver training instruction limit speed maximum 30 kph taking account road alignment somewhat constrained think horse handler would receive reasonable notice approaching truck able take precaution obviously approaching vehicle would heard case would light based mr coady traffic study apparent existing heavy vehicle movement early morning period therefore note enquiry made police regarding horse related road incident past 2 year within subject section bdouble route police response incident confirms conclusion redistributed heavy vehicle 8 vehicle extended period result unacceptable traffic safety risk approved b double route reasonably managed way condition traffic safety impact residential area minimised notwithstanding still interested provision form appropriate delineated person animal crossing opposite national street additional safety precaution also concerned mr wiafe issue enforceability tmp provision think take time fully implement provision therefore approval 12month trial basis ensure new safety regime fully operational additional safety facility could considered period seems reasonable regard associated noise issue accept horse area classified relatively noisy based noise monitoring result determination issue complicated disparate opinion presented acoustic consultant satisfied appropriate control contained rnp adopted nsw government 1 july 2011 replace previous control ecrtn policy outline range measure minimise road noise impact section 2 rnp assessment criterion state noise assessment criterion presented section consistent current international practice managing traffic noise impact however achieving noise assessment criterion would guarantee people would find resulting level traffic noise acceptable wide variation individual reaction noise context criterion set approximately point 90 resident highly annoyed noise criterion various road category land us presented insection2 3 identify noise level provide degree amenity appropriate land use road category specified noise level based well documented social survey defining dose response relationship noise level effect annoyance disturbance listening talking relaxing studying seesection 5 1 level supported comparison overseas criterion section 3 4 state existing traffic noise level noise assessment criterion primary objective reduce feasible reasonable measure meet assessment criterion secondary objective protect excessive decrease amenity result project applying relative increase criterion consequently increase 2 db represents minor impact considered barely perceptible average person assessment dr tonin followed suggested procedure recommended certain mitigation measure ensure noise increase comfortably specified 2 db allowance noisy environment challenged mr cooper aspect assessment dr tonin able indicate within sensitivity modelling exercise conservative still comfortable compliance specified 2db allowance factor nevertheless challenge modelling reveal uncertainty various contribution heavy vehicle night time period dfe truck operating outside approved hour lead various adjustment modelling result consequently make think whilst justification extending operating hour sought modelling longer period different time year warranted ensure noise impact minimised long term indicated previously number objection raised application objection summarised proposed development result noise level adverse impact amenity neighbouring residential area proposed development result noise level would cause sleep disturbance resident home located near site along truck route site proposed development result light pollution night adverse impact neighbouring residential areathe proposed development inconsistent existing neighbouring development residential various equine industry would create safety hazard pedestrian horse road user early morning weekday day weekendsthe proposed development would worsen existing heavy traffic would negative effect viability area training area property value proposed development use truck route neighbouring residential area inconsistent zoning area nature area horse racing precinctthese objection main consistent contention raised council considered appeal substantive evidence presented regarding impact property value viability training area therefore give little weight regard inconsistency zoning understand strategic planning review consideration area compelling evidence reject application ground one review thestrategic review warwick farm horse training precinct review considered result public consultation assessment land use conflict investigation secondary road access address traffic volume manning street street car parking control horse trainer safety andsustainability longevity horse training boarding establishment number action recommended including pursuit bypass road preparation local area traffic management plan address parking issue speed limit truck driver training matter undetermined stage summary consider applicant made reasonable case merit variation approved operating time freight distribution operation therefore discretion exercised dcp control regard note submission regarding matter oftelstra corp ltd v hornsby shire council 2006 nswlec 133 wherein preston cj said application australian standard rps398 appropriate court set aside disregard authoritative scientifically credible standard australian standard rps3 connell wagner pty ltd v city port phillip 1998 vcat 606 15 january 1999 pp 18 21 heland pty ltd anor v telstra unreported vcat ref p 3620 2004 8 march 2005 7 99 appropriate court pioneer standard creation new standard responsibility authority special expertise arpansa hyett v corangamite shire council telstra 1999 vcat 794 30 april 1999 p 5 telstra corporation ltd v pine river shire council 2001 qpelr 350 9 march 2001 364 61 379 117 lucent technology v maribyrnong city council or 2001 vcat 1955 27 september 2001 52 57 peasley or v frankston city council 2002 vcat 642 25 july 2002 telstra corporation ltd v moreland city council 2002 vcat 1294 23 october 2002 32 optus mobile ltd v whittlesea city council 2003 vcat 968 16 june 2003 24 optus pty ltd v cardinia shire council 2004 vcat 581 2 april 2004 17 19 telstra ltd v mornington peninsula shire council 2005 vcat 863 9 may 2005 20 hutchison 3g australia pty ltd v hobsons bay city council 2005 vcat 1470 18 july 2005 28 29 100 court accept apply australian standard rps3 sinclair v loddon shire council 1997 vcat 241 1 december 1999 p 3 telstra corporation ltd v pine river shire council 2001 qpelr 250at 364 61 optus mobile ltd v whittlesea city council 2003 vcat 968 16 june 2003 26 blake dawson waldron behalf telstra corporation v west tamar council 2004 tasrmpat 201 20 august 2004 43 hutchison telecommunication australia limited v ku ring gai municipal council 2004 nswlec 665 10 november 2004 15 see also mcintyre v christchurch city council 1996 nzrma 289 5 march 1996 new zealand environment court 295 whilst consider finding limited application subject matter satisfied rnp appropriate control adopt regarding road noise assessment accordingly think providing overall objective achieved along qualitative objective lep dcp minimise adverse traffic safety noise impact area quantitative control dcp operating hour varied finding based evidence acceptable balance competing interest industrial area user residential area achieved extended hour operation heavy vehicle permitted basis 12 month trial period allow various tmp measure fully implemented provide reasonable period effective self regulation ii evening period extension limited 10 pm 10 30 pm regard note frequent reference rnp 10pm change time evening period night time period 10 pm 7 seems relevant consideration enable horse area resident reasonable opportunity sleep period prior early morning horse training activity iii early morning heavy vehicle movement listed table 1 commence 4am seems reasonable relatively low number redistributed heavy vehicle arrival could effectively scheduled avoid quiter period 3 30 4 00am term horse activity thereby minimising adverse traffic noise impact iv effective noise traffic monitoring program implemented provide accurate evaluation criterion end 12 month trial period program address issue raised mr cooper regarding contribution vehicle various source also cover enforceability issue raised mr wiafev 12 month trial period would enable council progress strategic planning area particularly preparation latm plan could presumably address b double route operating restriction introduction traffic control measure pedestrian horse crossing facility across manning street measure specifically addressed hearing party invited make submission regard file amended condition achieve desired outcome minimise adverse amenity impact area prior making final order court orders1 appeal upheld 2 condition consent dfe development 20 scrivener street warwick farm modified shown attachment b 3 exhibit may returned except 1 3 5 p r husseycommissioner courtattachment aattachment b
N93_01941 [1995] RRTA 2493 (8 November 1995).txt	n93 01941 1995 rrta 2493 8 november 1995 refugee review tribunaldecision reason decisionrrt reference n93 01941tribunal roslyn smidtdate 8 november 1995place sydneydecision tribunal find applicant refugee affirms decision grant husband protection visa decision reviewthe applicant husband applied review decision delegate theminister immigration ethnic affairsunder themigration act 1958that refugee entitled domestic protection temporary entry permit applicant husband notified delegate decision letter dated 29 october 1993 applied review 22 november 1993 satisfied applicant husband made valid application review jurisdiction review delegate decision result change law since applicant lodged application must dealt tribunal application review decision refuse husband protection visa criterion grant protection visaprotection visa given people australia hasprotection obligationsunder 1951convention relating status refugee amended 1967 protocol relating status refugee convention australia protection obligation applicant meet definition refugee contained article 1 convention part definition state 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 deciding application refugee status tribunal must consider three important issue applicant awell founded fearof persecution harm fear amount topersecutionunder convention persecution result applicant race religion nationality membership particular social group political opinion answer one three question applicant refugee therefore cannot granted protection visa well founded fearan applicant well founded fear afraid return country nationalityandthere areal chancethat persecuted return however well founded fear remote insubstantial chance persecuted return country nationality chan yee kin v minister immigration ethnic affair 1989 hca 62 1989 169 clr 379 mason cj p 389 dawson j p 396 398 toohey j p 407 mchugh p 429 deciding applicant well founded fear tribunal must take account may happen within thereasonably foreseeablefuture keely j mok gek bouy v minister immigration local government ethnic affair 1993 fca 545 1993 47 fcr 1 p 66 persecutionpersecution precisely defined convention australian law however generally agreed mean serious harm discrimination abuse fundamental human right inflicted group individual part systematic course conduct government group individual country nationality loss life prolonged detention torture clearly form persecution serious form social economic political discrimination may also considered persecution convention example serious restriction right work earn livelihood gain basic education practice religion participate equally political life nation may considered persecution chan case mason c p 388 mchugh j p 430 james c hathaway law refugee status butterworths canada ltd pp 103 105 minor form discrimination harassment would generally considered serious enough amount persecution however applicant face number relatively minor form discrimination harassment combined effect problem serious nature harm involved may considered persecution united nation handbook procedure criterion determining refugee status geneva 1988 paragraph 53 harm suffered result random incidental violence civil war communal unrest generally considered persecution however individual group target systematic attack civil war treatment communal unrest part pattern serious harassment discrimination directed may considered victim persecution wilcox j periannan murugasu v minister immigration ethnic affair federal court 28 july 1987 p 8 13 see also mchugh j chan case p 430 hathaway p 188 applicant claim evidencebackgroundthe applicant arrived australia 28 september 1989 husband arrived november year applied refugee status 30 april 1990 application prepared without assistance however 1993 applicant assisted solicitor legal aid commission nsw lac applicant interviewed officer thedepartment immigration ethnic affair department 30 september 1993 also made written submission tribunal attended hearing 23 october 1995 husband daughter m v also gave evidence hearing mr gerogiannis solicitor lac also present hearing summary claimsthe applicant husband claim faced violence harassment discrimination sri lanka government member singhalese ethnic community prior departure sri lanka tamil ethnicity activity child believed support different political group sri lanka fear may detained government security force face violence serious harm hand authority people singhalese ethnicity return sri lanka tamil detail evidence provided applicant husbandpersonal detailsthe applicant 70 year old married woman tamil ethnicity sri lanka born colombo lived life except period 1983 1987 husband 76 year old come jaffna lived many year colombo worked colombo municipal council entitled pension government result service retirement mid 1970s applicant husband divided time family colombo property jaffna applicant remained colombo child studying working applicant husband speak english tamil first language applicant husband three child m currently life canada m v life australia dr h currently united kingdom loss propertythe applicant husband claim lost property sri lanka ethnicity applicant husband owned tea estate w central province according applicant primary application land requisitioned unp politician 1981 compensation paid interviewed department applicant said paid compensation believed property worth money received hearing applicant husband explained problem began land taken squatter local village believed squatter encouraged local politician applicant husband took legal action squatter removed government intervened acquired land without paying adequate compensation decided pursue matter court difficult fight government want spend money court case applicant owned house colombo family lived house destroyed 1983 riot applicant daughter m v barrister lodged application compensation government prior departure country 1984 however compensation ever paid family land property stood since sold applicant husband also owned coconut estate near jaffna initial application applicant claimed land requisitioned army 1985 believed used hide ltte hearing applicant explained land never formally acquired government however 1985 everyone told leave area fighting unable return area since time war applicant unsure whether area land located currently controlled government ltte political involvementthe applicant husband supported socialist party 1983 longer exists applicant said voted involved politics since 1983 said husband initially sympathetic aim ltte changed mind ltte became violent jaffna used buy ltte paper contributed financially small way however never active supporter problem resulting ethnic conflictapart form acquisition land w applicant husband problem authority prior 1983 1983 home destroyed anti tamil riot lasted several day hearing m v said believed house targeted legal work family provided accommodation group young tamil men forced hostel singhalese people following riot 1983 applicant husband went live husband old village jaffna m v moved work barrister took back colombo time time applicant said 1983 arrival indian peacekeeping force ipkf 1987 sri lankan army frequently come home look member ltte house near open land ltte thought active area applicant husband never detained mistreated sri lankan army period however ipkf came sri lanka began killing people local area including older people furthermore house applicant husband living badly damaged bombardment government force result left area returned colombo colombo applicant husband rented house son wife also lived problem sri lanka authority colombo son left country may 1989 following departure army police came house three four occasion asked applicant explained gone overseas experience applicant childrenthe applicant husband believe two child suspected political involvement sri lankan authority fear increase chance face problem return eldest daughter m married mid 1970s lived husband middle east number year however returned spend time parent moved back colombo 1987 problem authority insulted local singhalese people decided leave sri lanka parent came australia initially came australia student since migrated canada second daughter m v barrister represented member ltte detained theprevention terrorism actin legal proceeding 1981 1982 direct problem authority result belief one reason family home destroyed 1983 left country 1984 returned since time son dr h worked government doctor claim suspected supporter member ltte another anti government organisation janatha vimukthi peramuna jvp hearing applicant said shortage doctor sri lanka dr h required travel regularly number different hospital one hospital anuradhapura singhalese area sometime 1986 petrol storage tank blown anuradhapura dr h working tamil interrogated police applicant know long interrogation lasted aware problem faced son result suspicion ltte link however belief tell everything happened wish worry also hearing m v stated believed brother suspected link ltte two friend joined group 1984 since left country also anuradhapura petrol tank blown belief brother questioned possible involvement ltte occasion know detail country since 1984 correspond regularly tribunal advised applicant m v evidence suggested anyone seriously suspected involvement ltte would detained short period particularly suspicion involved sabotage applicant m v maintained dr h suspected involvement ltte m v suggested detained prolonged period shortage doctor colombo also noted people detained well educated brother long term resident colombo applicant also claimed son faced problem treated wounded member jvp initial application stated son harassed member jvp force provide treatment wounded colleague interviewed department said questioned authority treated member jvp time government ban treatment hearing applicant stated son treated wounded jvp member said main reason problem government said treated jvp member hospital worked forced gunpoint knife point said feared would harmed jvp never reported threat authority although know m v gave evidence later hearing said brother told treated wounded jvp member hospital home tribunal pointed different evidence given mother stated son treated jvp member hospital tribunal noted applicant lived house son time seemed unlikely would unaware incident occurred m v replied mother memory good applicant agreed always remember everything added always home result problem government dr h decided leave sri lanka may 1989 travelled ireland stayed wife sister later found work since gone england applied refugee status applicant claim son left sri lanka without resigning job seeking permission travel abroad believed would allowed resign due shortage doctor feared would even greater suspicion told superior decided leave country include profession passport avoid problem airport wife travelled maiden name avoid problem problem faced relativesthe applicant also claim three four brother disappeared possibly killed result conflict recent year aged 63 life colombo applicant aware faced problem authority initial application applicant said brother g 66 year old india made mention fact disappeared family heard interviewed department applicant saidthat g doctor clinic jaffna family heard five year since 1988 submission tribunal dated 31 may 1994 prepared assistance solicitor applicant stated g spent time india returned jaffna three year earlier family heard two year since 1991 1992 letter sent answered hearing applicant said brother never lived india although visited attend music festival said heard since 1987 tried contact postal service functioning jaffna asked reason believe come harm applicant said know anything happened tribunal pointed differed information provided earlier said information given hearing correct know differed earlier statement initial application applicant stated brother n barrister lived jaffna disappeared 1987 period intense fighting ltte ipkf heard since repeated claim interviewed department asked n hearing applicant said last seen 1986 added disappeared several time past reappeared however arriving australia 1989 told n disappeared probably dead knew nothing circumstance disappeared tribunal pointed previously stated disappeared 1987 heard since applicant maintained reappeared disappearance told disappeared last time arrived australia m v asked n disappearance later hearing first stated heard since 1987 taken hostage ltte child left country study overseas rule imposed ltte pointed conflicted evidence given mother reappeared disappearance disappeared 1989 said fact disappeared 1989 however discussion reverted original statement disappeared 1987 applicant brother r barrister lived colombo claim disappeared december 1989 travelled colombo batticaloa conduct court case hearing applicant said heard r died haemorrhage however know died cause haemorrhage exception elderly brother remains colombo applicant husband sibling either died left country applicant husband claim five elderly relation massacred ipkf attacked village october 1987 another eleven relative died various incident time village village one applicant husband lived period 1983 1987 destroyed deserted uninhabitable loss identification cardsthe applicant husband claim lost sri lankan identity card fear greater risk return able identify evidence regarding current situation sri lankathe applicant husband claim current situation sri lanka extremely bad point war ltte central government resumed recent cease fire result tamil people detained colombo believe tamil including elderly risk detention background lack identity document problem child faced past mean susceptible others treatment state people returning australia visiting sri lanka told rumoured tamil forced leave colombo also claim ethnic tension rise sri lanka including colombo two tamil recently lynched singhalese mob also point ltte security force kidnap detain people extort money claim greater risk treatment overseas applicant provided number newspaper clipping relating breakdown cease fire ltte sri lankan government article deal situation jaffna also deal situation colombo noting arrest occurred since breakdown peace talk ltte attack oil tank city lynching two tamil apparently thought member ltte compassionate humanitarian claimsthe applicant also asked age poor health taken account state dependent daughter australia physical financial support would home income returned sri lanka assessment applicant claim evidencei accept applicant husband fear returning sri lanka inter ethnic violence plagued country 10 year accept fear relate tamil ethnicity race political opinion may imputed support tamil separatist cause thus come within convention reason however find chance experience harm amounting persecution reason return sri lanka remote finding facti find applicant husband exaggerated extent problem member family faced sri lanka result ethnicity supposed political view affiliation accept applicant husband deprived property sri lanka result ethnicity clear evidence paid compensation tea plantation furthermore still appear coconut plantation unable gain access due war also find applicant husband exaggerated extent home searched sri lankan armed force 1983 1987 note initial application applicant claimed search conducted every day hearing stated occurred every two week also note sri lankan army remained largely camp mid 1985 ltte took effective control much jaffna peninsula arrival ipkf seethe far east australasia 1995 europa publication 1995 p 946 circumstance accept applicant house subjected frequent search period however doubt home searched police army looking ltte member period applicant husband lived near jaffna doubt member security force visited home number occasion time accept dr h seriously suspected involvement either ltte jvp placed risk detention government accept dr h like government employee may come pressure jvp strike certain day also accept may treated wounded jvp member came hospital worked however find claim forced gunpoint incident reported authority implausible accept secretly treated jvp member home asked son problem jvp hearing applicant confident treated people hospital however daughter claimed later hearing also forced care home stated memory good always home dr h forced treat jvp member home period sure mother lived house throughout period jvp insurrection would aware find claim dr h seriously suspected supporting assisting jvp implausible first place jvp began life maoist group became strongly nationalist organisation singhalese buddhist dr h hindu tamil secondly discussed accept dr h assisted wounded jvp member extent claimed applicant m v third finally jvp insurrection met extremely violent response government suspected involvement arrested killed army death squad dr h suspected jvp involvement authority would sure taken step question detain none evidence tribunal suggests occurred jvp insurrection see example robert c oberst war without winner sri lanka current history vol 91 563 march 1992 p 128 accept dr h suspected involvement jvp follows accept security force came home look left sri lanka evidence provided applicant disappearance brother vague contradictory accept disappeared circumstance described accept applicant husband suffered manner described 1983 anti tamil riot accept home searched member security force living jaffna returned colombo escape violence occurred following commencement conflict ipkf ltte also accept relative may killed abducted jaffna year conflict although result tendency exaggerate unable determine extent timing occurrence applicant husband prospect returnthe applicant husband lived life colombo lived immediately came australia therefore examined chance would face persecution colombo way background colombo capital sri lanka population two million prior outbreak hostility 1983 250 000 people tamil many tamil fled city 1983 riot since returned estimated current long term tamil population colombo 150 000 since 1990 150 00 tamil fled colombo avoid fighting north sri lankan monitor april 1995p 4 harm authoritiesi find chance applicant husband arbitrarily detained held prolonged period face serious harm hand government authority colombo tamil remote certainly true currently large military presence colombo many people particularly tamil stopped asked identify roadblock security force also conduct periodic sweep area tamil predominate tamil unable identify suspected involvement ltte may well arrested detained varying period circumstance likely applicant husband stopped roadblock asked identify may also face questioning security force home however consider treatment constitutes persecution convention find chance either applicant husband would experience serious problem security force return simply tamil remote international law recognised state right take special measure including limitation certain right freedom safeguard general population legitimate interest state time widespread civil disturbance national emergency see article 4 1 theinternational covenant civil political right circumstance prevailing sri lanka consider institution measure roadblock identity check questioning even brief period detention identity established investigation circumstance reasonably suspected involved knowledge terrorist group activity acceptable general security measure persecutory nature suggest measure taken time acceptable unreasonably harsh disproportionate treatment may constitute persecution even time emergency evidence tribunal indicates tamil colombo subjected prolonged repeated period detention without charge case torture treatment would clearly constitute persecution even time national emergency however evidence tribunal suggest tamil colombo face real chance treatment applicant husband experienced harm amounting persecution past evidence tribunal suggest people background long term resident colombo aged 70 record political involvement face remote chance prolonged detention form serious harm amounting persecution hand authority colombo evidence tribunal clear intensity security action colombo varied considerably period civil war major sweep conducted following assassination bombing ltte colombo breakdown peace negotiation doubt people seriously suspected ltte involvement would risk detention colombo throughout period civil war security sweep involving short term detention recently arrived young men north occurred following ltte attack colombo observer appear agree tamil suspicion could lead relatively normal life colombo latter half 1980s early 1990s particularly long term resident city example department foreign affair trade cable cl 32936 3 september 1991 advised thatthose tamil south centre island safe tamil cabinet minister tamil permanent secretary tamil chief justice tamil major general numerous wealthy businessmen living quite safely south centre similarly research directorate canadian immigration refugee board reported insri lanka internal flight alternative december 1992 pp 12 13 colombo capital remains destination choice many tamil fleeing violence east north city relative island calm asia watch 21 october 1992 war torn country established tamil community already provided refuge support many displaced tamil rodgers 22 oct 1992 jr feb 199 7 slrc 20 october 1992 keeping applicant husband experience time colombo 1987 1989 situation changed following assassination president premadasa may 1993 next six month 15 000 people detained intensive security operation directed ltte suspect colombo since start war launched following evidence provides insight nature action security force period theamnesty international report 1994 cover situation sri lanka preceding year state thousand suspected government opponent particularly tamil arbitrarily arrested included prisoner conscience soon released others held long period unacknowledged detention hundred political suspect arrested previous year continued detained without charge trial throughout year torture ill treatment custody continued 25 disappearance reported p 269 paper entitledhalt repatriation sri lankan tamilsdated 11 august 1993 asia watch stated although civilian south face serious combat related risk exposed danger related perception security force tamil security threat danger include arbitrary arrest detention associated risk mistreatment police custody pervasive throughout sri lanka course war thousand tamil civilian arrested round ups colombo june 1993 many hundred arbitrarily detained report ltte infiltration colombo connection investigation assassination april may opposition politician lalith athulathmudala president premadasa questioned released hour others held several day may still detention many case arrest seem made solely basis ethnicity tamil colombo regularly stopped questioned police without identification new city yet registered police detained massive arrest june 1993 even tamil identification could prove lived worked colombo arrested result protest tamil politician colombo government agreed implement safeguard prevent mistreatment protect detainee issue arbitrary nature round ups yet addressed unhcr advice dated 14 october 1993 gave following information security operation colombo although checking method tough generally include ill treatment people screened also detain people arbitrarily hand never grant benefit doubt word slightest suspicion people detained investigation para 8 assassination premadasa 1 may 1993 larger number people rounded detained questioning almost people arrested released within 48 hour kept detention emergency regulation extensive interrogation released within 48 hour fear ill treatment torture whilst case investigated remainder however might face ill treatment well informed source report 4 person 10 average subject ill treatment sometimes bordering torture para 10 although tamil mainly affected search round ups believe government activity aim tamil general ltte cadre definition tamil search round ups therefore constitute harassment persecution particular ethnic group legitimate government reaction vi vi threat terrorist ltte suicide squad context noted october 1993 suicide bomb kit discovered near colombo confirms concern security force possibility bomb attack colombo diplomatic source well international committee red cross recognize concern unjustified para 11 dfat cable cl35901 dated 28 september 1993 quote unnamed non government organisation stating perceives difficult situation tamil colombo 15 000 tamil picked systematic security sweep city since mid may police accept bribe check identity quickly pay quicker released estimate 20 percent arrested police singhalese tamil tortured another 20 percent mistreated article thetamil timesof 15 november 1993 state police reportedly targeting wealthy youth leading school prosperous business ltte threat city continues add tamil age walk life taken custody also state even people known innocent taken custody order extort money secure release also note large number tamil held detention two year united state committee refugee issue paperpeople want peace repatriation reintegration war torn sri lanka january 1994 described wave arrest since mid may 1993 following term arrest often arbitrary based solely ethnicity detained released within 24 hour arrest following wave arrest government agreed several safeguard arrested including reasonable ground arrest police give written receipt relative arrested home according december 1993 report british refugee council brc five month later guideline observed according december 1993 brc report last eight month 1993 sri lankan authority arrested 8 000 tamil colombo estimated 1 000 2 000 remained detention december report said young men without job relative capital posse national identity card tamil find difficult obtain particularly vulnerable added according source colombo police run flourishing extortion racket demanding large sum money relative seeking secure detainee release pp 3 6 report theorganisation suisse aide aux refugies os time yet ripe bern april 1994 state follows tamil monitored arrested interrogated specific cause suspicion exists suspect also tortured second half 1993 alone 15 000 tamil affected approximately 5 estimated detained prolonged period week mobile army police check point apparent every street corner colombo particularly active night dark person screened check point armed security force identified tamil subjected particularly thorough questioning tamil taken nearest police station military post least suspicion uncertainty identity exists tamil also frequently arrested purpose obtaining money extortion police military personnel detain tamil group release individual payment several thousand rupee detainee relative since assassination president premadasa august sic assassinated may 1993 security force adopted new security doctrine whereas previously assumed ltte member travelled sporadically colombo specific operation security force convinced colombo permanently infiltrated ltte e network ltte commando life colombo strike time accordingly security force assume every tamil potentially member ltte unless proven otherwise consider necessary round group tamil questioning every tamil threat regardless social economic status basis logic member security force consider legitimate use force interrogation case systematic torture since suspected tamil might ltte member tamil without permanent address national identity card exposed particular problem risk tamil returnees europe exposed risk danger general tamil population colombo discussion partner believe exposed special risk due fact sought asylum europe particularly since international community would closely monitoring fate returnees hand many discussion partner assumed would considered wealthy military police personnel thus likely victim frequent arrest purpose extortion principle every returnee considered wealthy thus capable paying release one occasion also evidence government security force tamil militia supported secretly detained dozen suspected ltte sympathiser latter part 1993 u department state country report human right practice 1993 p 1390 although security sweep continued occur following ltte attack seriously suspected ltte involvement still arrested whenever wherever found number short term long term detention tamil colombo area control central government declined considerably 1994 particularly following thevictory people alliance august parliamentary election ended 17 year rule united national party unp sri lanka new government lifted emergency regulation part island initiated dialogue ltte resulted cease fire agreement 8 january 1995 raising hope peaceful solution conflict dfat cable 1997 dated 27 february 1995 noted dramatic decline number detainee representative unnamed non government organisation attributed number release sharp decline number people detained representative also noted reduction extent detained ill treated interrogation stage due concern changed circumstance may brought justice beat torture prisoner however cease fire broke april 1995 ltte withdrew negotiation attacked vessel naval shipyard trincomalee claiming government making good promise regarding lifting embargo north soon resumption hostility large number people mostly tamil detained colombo according theinform sri lanka information monitordated april 1995 round operation tamil around colombo intensified resumption hostility police given instruction police station examine house hotel tamil suspect lodge according newspaper report number arrest day high 1 000 however human right observer commented many people released initial questioning within period 48 hour article fromthe australiadated 25 april 1995 state according defence official sri lanka 1 500 people mostly tamil community detained screening check possible link ltte 24 released short time article entitled tiger gate thesri lankan monitordated april 1995 p 5 state around 2 000 young tamil arrested 10 day following breakdown cease fire 19 april 1995 many released hour around 400 remain custody arrest continue around 200 day dfat cable cl37604 dated 9 may 1995 state police security force maintaining tight security colombo well informed source told u ltte cadre lookout economic security service target well prominent individual widely reported including australian news medium police conducting sweep operation area colombo attempt catch ltte cadre operating city far government claiming success source said result search number ltte operative arrested explosive communication equipment discovered great care taken avoid excessive use force complaint score colombo senior police officer provided detailed briefing colleague sweep operation said senior rank police government aware resentment towards sweep among affected tamil community point taken highest level better alternative admitted intelligence effective enough said tried set criterion detention based certain assumption example addition young tamil recently arrived jaffna identification would also looking person moved around lot paying high rent behaved secretly said order achieve better control fastest possible turnaround time three police station used aim 24 hour turnaround achieved 95 case international ngo confirmed much source said spokesman office told colleague sweep conducted 23 april 1 500 people taken custody vast majority released within 24 hour remaining custody formally detained order pursuant emergency regulation ngo thought significantly order 7 day renewable previously 90 day order granted matter course 4 may 10 originally detained 23 april remained custody theinform sri lanka information monitorfor may 1995 give following overview security measure south sri lanka war led increasing security operation south fear ltte may expand operation colombo troop placed alert colombo suburb well provincial town many check point different point colombo household check determine registered resident fact living house become common newspaper report may 1995 point 500 people arrested greater colombo area alone human right group however noted redress grievance regarding arrest detention still possible thesri lankan monitorfor may 1995 state 300 people detained sweep early month another 600 detained late month 10 later released police claim arrested 250 ltte cadre colombo 19 april end may june edition ofinform sri lankan monitornoted heightening security check point road colombo following two bomb blast first two week month thesri lankan monitorof june 1995 note arrest 600 people following explosion colombo july august edition ofinform sri lankan monitoralso carry report detention tamil suspected ltte involvement make mention large number detention occurred previous month dfat cable cl 37745 8 june 1995 state real complaint police action conducting extensive sweep search operation interrogation suspect however problem remain according sri lanka state run human right task force hrtf 600 prisoner remain illegal detention jail across sri lanka furthermore evidence elite special task force involved abducting torturing killing tamil youth however evidence also indicates new government taking step change situation president established committee look illegal detention secure release concerned new regulation put place curb power organisation stf member stf others accused involvement murder 21 tamil youth whose body recently found colombo arrested mohan samarashinghe sri lanka right group say 600 illegal prisoner reuters news service 30 september 1995 evidence tribunal clear large number tamil arrested colombo recent year illegally detained prolonged period tortured even murdered security force however also clear even period intense arbitrary sweep tamil area majority people detained taken custody could identify fitted certain profile young tamil men recently arrived north country majority released within short period hour several day without experiencing serious ill treatment furthermore break cease fire resulted renewal security sweep tamil area many people detained detention le arbitrary 1993 detained released quickly incidence ill treatment dropped overall evidence tribunal suggest detention tamil colombo time recent year arbitrary widespread applicant husband never involved politics fit profile sought authority faced remote chance detained prolonged period subjected ill treatment form harm amounting persecution hand authority colombo tamil ethnicity find chance applicant husband would face harm reasonably foreseeable future remote reaching conclusion noted claim applicant husband would increased risk child left country following problem authority evidence tribunal suggest tamil family member abroad greater risk detention form serious harm colombo tamil living according information unhcr outside sri lanka regarded higher security risk tamil civilian relative ltte member part organisation usually endangered result relative activity un advise dated 14 october 1993 para 4 2 13 furthermore discussed find applicant husband exaggerated extent child viewed suspicion authority circumstance accept activity applicant child prior departure sri lanka prolonged absence country would significant impact treatment applicant husband return also considered claim applicant husband increased risk lost national identity card accept lack national identity card cause difficulty people recently arrived sri lanka find extremely unlikely elderly people applicant husband would face detention card particularly posse passport confirm identity furthermore applicant husband could apply new card return sri lanka according canadian immigration refugee board documentation centre lost identity card replaced although sometimes difficult lengthy process due war bureaucratic inefficiency event applicant husband risk result holding identity card brief period detention identity confirmed doubt would extremely distressing discussed consider persecution convention finally considered claim tamil risk detention member security force seeking extort bribe noted evidence cited many tamil forced pay bribe secure speedy release detention case avoid false accusation link ltte canadian immigration refugee board documentation information research branch paper internal flight dated march 1995 state upper class tamil youth detained solely extort bribe detainee may pay bribe ensure release within 48 hour report also note canadian high commission advice extortion demand individual rather systematic scope generally limited small bribe accepted order speed processing identity check article leon berenger thesunday timesof 11 june 1995 confirms existence police extortion racket state police chief colombo launched investigation allegation member police force including high ranking officer extorted money threatening link wealthy tamil colombo ltte however tamil face extortion attempt security force associated press article entitled 20 police soldier arrested atrocity reported 25 october 1989 least 20 policeman soldier arrested charge rape attempted extortion crime struggle singhalese extremist police arrested four army lieutenant allegedly posed front member tried extort money wealthy businessman town wellawatte south colombo militant group criminal also engage extortion ltte example regularly demand money exert power influence associated pressreported 2 april 1988 indian troop seek elusive sri lankan rebel nexis despite presence ipkf ragtag band tamil tiger rebel continues kill maim indian soldier massacre singhalese villager extort money tamil singhalese moslem alike recently australian high commission stated advice dated 12 may 1993 information regarding ltte action opponent large body evidence support claim ltte tax realistically extorts money property civilian pay activity past held people ransom especially muslim regularly seizes family property last family member leaf jaffna anamnesty internationalreport entitled assessment human right situation 1993 refers kidnapping elderly man believed selected relative living europe presumed wealthy p 15 circumstance possibility applicant husband might face attempt extort money cannot ruled although evidence suggest face remote chance arrested kept detention prolonged period security force order extort bribe advice canadian high commission quoted indicates likely face demand small bribe expedite checking identity document may well also pay bribe expedite issuing new national identity card dealing government official doubt act illegal view serious harm amounting persecution say act extortion never amount persecution sum demanded sufficiently large seriously affect livelihood concerned consequence refusing pay sufficiently serious extorting bribe could perhaps constitute serious harm amounting persecution however evidence suggest applicant husband face remote chance kind problem return furthermore launching investigation mentioned thesunday timesarticle quoted indicates currently charge police force would take action member security force involved attempting extort large sum money people applicant husband even could said extortion applicant husband may face serious harm amounting persecution evidence tribunal suggest would face problem ethnicity race reason listed convention clear evidence security force extort bribe many different type people tamil militant group criminal also extort money believe able pay extortion bribe circumstance part policy course action directed tamil ethnicity race criminal act carried individual thought wealthy sole purpose financial gain see full bench federal court case ofkuldip ram v minister immigration ethnic affair refugee review tribunal unreported 27 june 1995 pp 3 10 thus may member security force others may attempt extort money applicant husband perceived money face problem one reason listed convention harm member singhalese communityi accept applicant home destroyed singhalese rioter 1983 tamil violence destruction caused rioter period well known 3 000 tamil killed another 150 000 displaced also widespread destruction property doubt experience time created lasting fear mind applicant husband however consider 1983 riot outbreak communal violence part systematic pattern harm amounting persecution directed tamil sri lankan government member singhalese community furthermore even could argued 1983 violence amounted persecution refugee convention find chance applicant husband would seriously harmed sri lankan government member singhalese community reasonably foreseeable future remote widespread outbreak violence tamil colombo since time even event assassination president premadasa 1993 opposition leader gamini dissanayake 1994 breaking cease fire ltte 1990 april year sparked recurrence level violence colombo tamil may experienced minor discrimination area work education colombo none evidence tribunal suggests tamil face serious problem amounting persecution area dr h example able complete medical degree obtain employment public service departed country 1989 suggest tamil colombo faced problem result ethnicity since 1983 accept relation tamil singhalese colombo greatly strained continuing civil conflict accept applicant husband member family may faced minor harassment name calling singhalese however consider difficulty constitute serious harm amounting persecution convention humanitarian issuesi considerable sympathy applicant husband whose wish live peaceful atmosphere close least one child understandable however explained hearing tribunal able take matter account decide whether eligible protection visa conclusionsi accept applicant husband fear returning sri lanka however find chance persecuted one reason included convention remote refugee therefore people australia protection obligation entitled protection visa decisionthe tribunal find applicant refugee affirms decision grant husband protection visa
Reynolds & Walls [2018] FamCA 905 (7 November 2018).txt	reynolds wall 2018 famca 905 7 november 2018 last updated 22 november 2018family court australiareynolds wall 2018 famca 905family law child child spends time parental responsibility mother contends child life spends time father father proposes child live mother undergoes counselling child introduced spend time father recommended counsellor mother alleges father risk sexual emotional harm child relationship child father severely fractured father found unacceptable risk child child genuinely belief father pose risk harm child wish taken account mother proposal least likely cause harm child mother sole parental responsibility child live father spend time child permitted communicate writing child four time per year family law act 1975 cth s 4 4ab 60b 60ca 60cc 61da 65daa 65dacevidence act 1995 cth s 140banks bank 2015 famcafc 36mauldera orbel 2014 flc 93 602wacando v commonwealth 1981 hca 60 1981 148 clr 1neat holding pty ltd v karajan holding pty ltd 1992 hca 66 1992 67 aljr 170n separate representative 1996 flc 92 655m v 1988 166 clr 69harridge anor harridge 2010 famca 445re andrew 1996 famca 43 1996 flc 92 692applicant m wallsrespondent mr reynoldsindependent child lawyer m wallacefile number tvc403of2009date delivered 7 november 2018place delivered cairnsplace heard mackayjudgment tree jhearing date 4 5 6 september 2018representationcounsel applicant m lyonssolicitors applicant everett family lawthe respondent personcounsel independentchildren lawyer mr collinssolicitors independent child lawyer legal aid queenslandorders 1 x born 2008 child live m wall mother 2 mother sole parental responsibility child exercise parental responsibility must keep mr reynolds father informed child education involvement extra curricular activity health including within 24 hour advising father medical emergency change child living arrangement save medical emergency mother advise father end month talking parent similar app 3 father shall permitted send present card letter child birthday easter christmas one occasion per year note father writes card letter must make reference family law issue mother make reference father restrained spending time child 4 event child wish communicate father mother facilitate communication 5 order sufficient authority father obtain copy child school report seek information child school relation attendance progress 6 parent communicate via talking parent app similar parent restrained denigrating course communication 7 independent child lawyer discharged thanks court upon later expiration appeal period respect order determination appeal 8 otherwise extant application dismissed matter removed list active pending case note form order subject entry order court record notedthat publication judgment court pseudonymreynolds wallshas approved chief justice pursuant tos 121 9 g thefamily law act 1975 cth note copy court reason judgment may subject review remedy minor typographical grammatical error r 17 02a b thefamily law rule 2004 cth record variation order pursuant r 17 02family law rule 2004 cth family court australia e townfile number tvc403 2009ms wallsapplicantandmr reynoldsrespondentreasons judgmentintroductionthese proceeding relate appropriate parenting order child party relationship x born 2008 hence presently 10 year age child part m wall mother contends sole parental responsibility child would live neither spend time obliged communicate mr reynolds father extent contemplated ongoing involvement father child life permitted communicate child writing card letter gift four occasion per year obliged keep father informed medical emergency regarding child authorised obtain detail child school progress mother justified regime order basis father pose risk sexual emotional harm child could kept safe virtually complete exclusion life part ultimately formulated end trial father proposed equal shared parental responsibility child would live mother required undergo counselling clinical child psychologist specialist experience parental alienation either conclusion counselling child would introduced father therapist recommendation spend time communicate also recommended implicit position denial pose risk sexual harm tacit concession least present without assistance specialist counselling engagement father pose risk emotional harm child part independent child lawyer supported order proposed mother said support appeared least mind begrudging said arrived process elimination option mother contended position least worst outcome child conclusion hearing reserved decision judgment reason background factsthe fatherthe father born 1960 hence presently 58 year age know little life prior 2006 stage qualified professional previously married period 24 year marriage born three son presently 27 25 24 year age point father moved b town district employed profession seems separated wife 2006 aged 46 met mother commenced relationship motherthe mother born 1971 hence presently 47 year age appears difficult childhood largely consequence father war veteran stage placed foster care age unclear evidence father asserts 12 year old mother say older ran away foster home western australia sydney appears became involved illegal drug living detained someone sexually assaulted eventually returned perth although unclear whether returned living foster parent father annexed father trial affidavit number email maternal grandfather wife maternal grandmother claim mother late 1980 experiencing considerable difficulty drug violence living perth claimed assaulted father motor cycle helmet mother denied cross examination later stage mother moved away perth ultimately ending town northern new south wale period time lived commune plain stage life smoking considerable quantity marijuana say plain whilst june 2000 commenced counselling counselling service note variously record smoke quite lot marijuana trying smoke le marijuana smoking way much marijuana albeit noting 12 april 2001 mother partner stopped smoking marijuana part cessation likely mother partner expecting child born 2001 presently 17 year age time birth appears though mother partner broken certainly recorded counselling note 12 june 2001 oral evidence mother denied ever partner like relationship father counselling note make plain correct mother would smoked marijuana since fell pregnant however must rejected light counselling note 25 january 2005 record mother feel really ready leave town also ready permanently leave marijuana habit begun work drug alcohol counsellor end time contemplating moving victoria boyfriend however appears though august 2005 relationship either certainly going well also mother claimed sexually assaulted neighbour commune babysitting counselling note 8 august 2005 record contemplating moving back perth two week later counselling note record since sexual abuse allegation neighbour little son community divided many friend speaking hence decided move b town area good network friend precisely unclear plainly stage life met father formed relationship 2006 either 35 36 year age relationshipit appears though party relationship initially went well although interesting alternative snapshot provided counselling note mother arising seems telephone counselling counselling service undertook towards end 2007 mother six month pregnant child counselling report relevantly read mother presented overwhelmed situational stress mother six month pregnant reported father inconsistent commitment relationship saying want together providing financial support told co worker friend otherwise mother also estranged father stepmother mother sister feel isolated unable cope issue childhood describes traumatic also sexual assault adolescent depression general stress severe level anxiety level scored moderate alcohol use hazardous level however mother overall score 3 alcohol use dependant harmful level mother reported improvement capacity cope sense optimism regarding future without new partner third final session seems though party relationship punctuated period separation although agreement many separation nothing turn certainly appears though party agree separated september 2008 time believed likely permanent although shall seen prove case seems likely separation associated altercation father asserts mother assaulted mother denies unnecessary determine particular episode asserted family violence clear family violence feature party interaction thereafter separation child five month old still breast fed meant father able spend short period time child without overnights apparently least initially party able agree regime queensland department child safety department appears first involved party consequence notification made 15 december 2008 notification evidence heavily redacted relevantly read follows mother smoke marijuana every day notifier belief mother smoking marijuana breastfeeding baby dope go child breast milk department contacted cardiologist relation concern following day ultimately advised impact smoking marijuana unborn child would similar smoking cigarette nothing seems ensued notification sometime prior 12 january 2009 mother privately sought domestic violence order father application seem evidence however served police father 12 january 2009 appears police served application concerned entry diary maintained mother annexed affidavit support application police report note private application involved emotional physical abuse child could actually linked party led police referring matter department interestingly departmental record show police previously investigated family mother suspect father informant particular episode appear police record produced pursuant subpoena seems arisen father concern child dehydrated according police note 19 march 2009 mother withdrawn domestic violence order father second police notification department appear occasioned action 24 march 2009 consequence father contacted police 23 march claimed assaulted mother according police report mother attended father house 2 00pm day stated enough longer wanted contact child father agreed take child nonetheless breastfed every three hour led later attending mother address verbal argument ensued course father say mother ripped shirt scratched face photograph purporting show evidence appears though father left mother unit 23 march mother drove father unit demanding return child incident ensued resulted mother crashing car tree police attending taking mother custody according told departmental officer september 2009 four hour police note attendance occasion read follows approximately 02 00am sunday 22 march 2009 police called attend father residence mother attendance police attended located mother walking along street short distance father residence mother stated attended father residence effort breastfeed child however father demanded leave residence mother stated distressed state crashed vehicle father property leaving police attended father residence stated mother attended demanded return infant child father stated verbal altercation however would state obtained new visible injury face police detained mother transported b town watch house application domestic violence order furnished released custody condition police investigation concluded level risk future abuse neglect child minor however police brought application protection order father behalf mother ultimately led mutual order made 22 march episode party appear unable agree regime child spending time father 9 april 2009 father involved solicitor wrote mother requesting father spend time child father commenced proceeding federal magistrate court titled 15 june 2009 interim order made court provided equal shared parental responsibility child live mother spend day time father specified occasion week order reviewed 29 march 2010 appears though party thereafter complied order although 29 january 2010 child concern report noted department child red vagina anus visiting father 21 july 2010 department notified child sexually abused father notifier stated informed allegation raised child bad nappy rash vagina anus also quite red reported mother sought several medical examination various doctor e town area contact professional organisation around allegation sexual harm appears though 29 january 21 july 2010 involvement department summary july investigation noted information received department 31 march 2010 f medical centre reporter mother attended surgery four 4 time order subject child ongoing medical examination detected sign child abuse occasion whilst relatively extensive cp history relation family closer inspection raised concern appear tit tat type concern similar information reported time previously recorded family court dispute progress present may fuelling repeated report child safety time information available evidence child unacceptable risk suffering future harm current information recorded child concern report 12 september 2010 mother presented g hospital child hospital note evidence presenting condition identified redness around labium swollen labium presenting history record mother concern redness noted claim always worse get back father later note said mother concerned sexual abuse father indistinct due sexual abuse seen two x gps little result person attending mother hospital undertook vaginal examination child noted hospital record child hymen intact mild swelling labium note continue explained mother appears simple thrush chafe something appears 24 hour time may flare time evidence abuse candide abuse possible child wet nappy getting washed properly father able tell examination therefore seen time mother took child g hospital concern relation sexual abuse circulating well six month indeed troubling allegation commenced raised department although unclear le four month separation notification made department 13 september 2010 relation child presentation upon return father occasion nappy rash broken skin noted mother child checked sexual abuse past check hymen intact child said daddy oww department simply noted child concern report took action 18 september 2010 incident occurred mother father mother later told police comprised father attending house drop child spent time mother claimed father threatened asserting front child mother drink take drug transpired mother recorded conversation however police noted played recording tone voice used mother describe threat vastly different quiet monotone actually used father made actual threat violence damage next 21 september 2010 mother attended police complaining inappropriate comment facebook page father set child police took action probably 4 october 2010 child returned spending time father redness genital area mother took child hospital diagnosed urinary tract infection department notified 4 october 2010 child returned father vaginal rash last five time row seen departmental note suggest fact parent attended e town base hospital 4 october continue father reported doctor mother give child something visit order give child diarrhoea result nappy rash mother provided doctor photo sore child vulva doctor take hospital paediatrician consultation parent displayed degree animosity towards whilst hospital blamed rash child notification relating vaginal rash sore made department 5 october 2010 recorded notifier stated father belief child mother deliberately making child diarrhoea set father neglect daughter however department concluded evidence mother deliberately inducing symptom 2 february 2011 notification department child facebook account notification made 19 april 2011 related number concern said mother relation child including child extremely red vulva distant withdrawn departmental note relating notification observed 21 recorded intake relation child clearly documented family court dispute parent relation child whilst mean legitimate child protection concern information requires careful consideration determine actual harm risk child noting child concern report department took action relation 19 april 2011 notification appears brief relatively quiet period involvement police department 26 august 2011 mother contacted police following child returning care time father day police report say mother reported child said mum sore bottom really sore naughty game play daddy mother told police observed inside child bottom quite red attempted take child doctor unable find one open mother child ring father recorded conversation digital voice recorder police record note child said phone princess game like like fucking interpretation informant recording heard reporting officer cd copy made reporting officer interprets conversation slightly differently believing victim child state like flipping going state taking tinkerbell castle icare interview conducted child 28 august 2011 child discussed princess game play father showing bowing curtsy dancing around said bottom sore father throw describing flipping makeshift castle child denied knowing naughty game police concluded concern sexual offence time least evidence thing thereafter seem quietened father continuing spend time child fortnightly basis friday evening saturday afternoon june july 2013 father commenced working regularly melbourne october 2013 relocated h town western australia december 2013 mother also moved western australia although area south state march 2014 party recommenced relationship cohabiting h town western australia living child party considerable disagreement occurred period cohabitation h town however contemporaneous record contained principally three source firstly mother counselling service note secondly western australian police report thirdly document held department child protection western australia first time appears involvement counselling service mother seems commenced service 6 may 2014 presenting issue largely anxiety poor relationship father although record first consultation appear note mother needing drink two glass wine night settle much drinker 20 may 2014 note record anxiety issue like going requires one half day prepare go shopping us alcohol calm feeling little later note record currently socially isolated financially dependent upon father important undated note contained tab 11 tender bundle positioning allows identified likely created may 2014 however precise date probably overly relevant plainly pertains time cohabitation report physical assault mother father approximately ten day earlier particularly said later evening question mother father bedroom apparent reason father grabbed mother aggressively threw across bed causing slam railing bed mother reportedly received two large bruise incident note continue mother reported next morning bathroom father came bathroom forced upon sexually wish note go record mother sought legal advice initiated plan leave return perth little later record mother mainly fearful father react leaving confident adequate plan place father say evidence thereafter occurred part deliberate plan enable mother child leave h town elsewhere like effect counselling note 24 june 2014 record mother preoccupied regarding relationship father compared feel different considering moving back perth south west western australia live child intending make arrangement father regular access appears reported incident father forced upon sexually despite mother stating want engage mother felt unable unwilling stop however describe scenario abusive incident mother described inappropriate mother report event father mother subsequently alleged fact father raped report effect ready although 22 july 2014 mother reported improvement feeling anxiety 5 august 2014 reported physical assault upon father 1 august 2014 made disclosure student service school note disclosure follows came student service saying needed speak met said worried sister said came back weekend dad withdrawn said sister said uncomfortable sharing bed dad also said sister reported father slept bed together naked jammies difficult put context least according counselling note parent fact still residing together 18 august 2014 mother reported counsellor event allegedly occurred previous friday seemingly 15 august note read mother admitted h town woman refuge following aggressive verbal altercation father last friday mother advised father unexpectedly stayed home work friday silent day began drink early evening verbal altercation escalated yelling directly mother face point mother retreated bedroom two kid mother believe could leave point however upon waking saturday morning able gather emergency pack left child woman refuge disclosure made school counsellor 26 august 2014 recorded school follows said worried sister came home dad house moody went tell icky thing icky thing bed said watched movie people naked according school record mother advised conversation 29 august 2014 interim violence restraining order made naming mother person protected father person restrained 1 september 2014 worker domestic violence victim support agency made contact m j social worker employed organisation known q group h town m j spoke mother told daughter came home father house saturday afternoon 30 august behaviour abnormal went detail child refusing take clothes shower indeed taken morning get shower mother brought child see m j following day introductory appointment answer leading question m j child said watched rude movie father went say people naked leading question asked child sleeping bed father child disclosed father come bedroom bed sometimes touch private part sometimes hurt occurs say daddy please stop daddy please listen child said returned mother felt angry m j contacted western australian department child protection police due course child interviewed m k seemingly attached western australian police interview child disclosed father tickled pinched vagina caused get red another occasion whilst pretending cuddle one arm touched vagina pulled dress little bit make sure right spot stage unclear father contacted police declined interviewed however investigation continued although appear transcript child interview m k handwritten comment police record dated 10 september 2014 noted cai child indicated mum told tell thing everything 5 september 2014 western australian dcp wrote mother advising investigation recommending investigation finalised time child father suspended 19 september 2014 m k interviewed school repeated much previously told school counsellor appears note police record follows appeared officer somewhat coached response identified sister told thing father able particularise icky thing icky movie meantime western australian police made contact new south wale police identified mother noted year earlier made allegation relation abused seems though officer charge western australian investigation became suspicious mother may using child ulterior motive mother commenced proceeding h town magistrate court seeking parenting order 19 september 2014 26 september police contacted father reported concern mother drinking feared going take child eastern australia 27 september father collected child school prompted mother make contact department determined intervene 22 october 2014 department provided father correspondence identifying view child would immediate significant risk harm contact proceeding transferred family court western australia 23 october 2014 24 october father recommenced spending time child returning overnight time allegedly told mother sleep daddy anymore slept bed left lot lolly paper bed 12 december 2014 consent order made suspending father contact child seemingly mother could holiday away h town whilst holiday mother child allegedly made disclosure saying mummy happened child interviewed western australian police 16 january 2015 made disclosure including father touched private part three time five two time six described father inserting fingernail vagina also made disclosure father physically assaulting bashing dropping departmental officer advised mother interview told permit child spend time father 6 february 2015 departmental officer met father according note date advised assessed ash assessed causing significant harm sexual abuse daughter evidence enable confident ash assessed mean late march 2015 appears though western australian police resolved proffer charge father sexual abuse child addition lack corroborating evidence note conversation relevant police officer departmental officer record stated mum helped matter given made allegation would much defence lawyer could use notwithstanding absence intention charge father 13 april 2015 order made permitting mother relocate child b town queensland order also made father spend supervised time child e town contact centre 1 may 2015 mother child relocated b town father spent time either child since december 2014 subsequently father engaged department persuaded overturn finding substantiation sexual harm notwithstanding order permitting father spend time child e town contact centre 10 december 2015 also present occasion first family report writer mr l interview child told mr l unsupervised time father would touch private part pinch mr l recorded observation father engagement child first family report mr l noted although initially polite reserved child appeared begin relax visit progressed nonetheless child kept distance father made attempt touch touched conclusion visit child made clear wish touch father whilst saying goodbye mr l interviewed child asked felt father reported shrugged shoulder asked whether nice stated two around nice paragraph 60 first family report continues child asked thought would one else immediately stated would touching private part mean child asked whether felt would mean time replied always mean thing every time saw pinching asked touch father said really scared 83 mr l recorded thought child disclosure immediately following visit father real concern concluded manner disclosure indicate coaching view need taken seriously opined may well substance allegation sexual abuse recommended father time suspended 17 december 2015 father second supervised visit child e town contact centre mother evidence child behaviour afterwards noticeably odd appeared fearful including destroying toy card father given visit around time direction preparation matter trial made matter listed hearing however 16 march 2016 interim consent order made providing equal shared parental responsibility relation child child live mother regime therapeutic counselling also ordered child counsellor left determine child commence spending time father circumstance time might occur anticipated introduction child father updated family report would prepared due course matter proceed trial counsellor child commenced see m six session occurred however ultimately m declined involved noting child consistent session regarding father speak positively want contact citing fear related past event fear future harm reason would concerned child emotional well forced contact father nonetheless reason altogether clear fact supervised visit thereafter ensued appear though mother prepared child child told second family consultant later prepared family report mother simply told one day going see father note contact centre supervised visit evidence first visit 19 november 2016 initially child reluctant engage father although ultimately however child told supervisor nervous supervisor recorded child wringing hand together visit conclusion father asked hug whilst child permitted hold held body face away whilst put arm around shoulder gave squeeze moved quickly away next visit appears 10 december 2016 initially child refused give father hug would consent hand shake conversation appeared limited child giving short response father touched father arm visit refused hug conclusion instead shook hand third visit occurred 17 december 2015 appeared go reasonably well contact centre note state father child watched video together played soccer game smiling laughing chatting conclusion father asked hug christmas child agreed although contact centre note record hugged quickly moved away visit occurred 15 january 2017 commencement father went hug child however return hug conversation appeared stilted asked would like see brother b town child declined child observed jiggling leg nervous way frequently checked time conclusion visit father hugged child hugged back one arm patted back co ordinator note contact centre record 15 january observed serious concern supervision lack support child lack intervention supervisor said particular supervisor longer work e town contact centre next visit 11 february 2017 according contact centre note child observed father walking towards wringing hand together time appear though physical greeting verbal one child deployed short answer response father question stage child began tapping foot answer supervisor question indicated ok although play game father appears though child anxious session conclude conclusion father asked hug child permitted reciprocate 4 march 2017 visit occurred appear physical touching commencement visit characterised father asking child question ask visit conclude prompted supervisor father child played game water conversation note record child kicking leg wringing hand father talked child said supervisor think enough asked visit conclude conclusion supervisor suggested father bring lunch next visit father asked child would like would like note record decided fish chip conclusion visit father asked hug whilst child moved turned body away apparently reciprocate hug final visit sunday 19 march 2017 physical touching commencement visit initially father sat opposite child agreed brought fish chip asked child hungry responded quiet voice father said rude father asked whether lunch child nodded head said yes contact centre note record father stared child said texted mother let know getting lunch really looking forward lunch together father plainly upset child already lunch child appears picked eye began tear father began eating whilst looking child contact centre note state father looked child said going join come something eat child shook head negatively eye began redden minute child indicated supervisor want go observation note shoulder slumped wringing hand together head eye red teary tear began run face told supervisor stomach tight sore also anxious supervisor told father child wanted end visit upset father stated shaking head negatively said end visit supervisor advised father visit ended child visibly upset best interest contact centre note record father responded best interest father concedes became emotional teary child father apologised child said upsetting looked forward lunch child verbally respond father gave consent photo album various age birth child flicked album gave back father indicating wished go contact centre note continue father became teary telling child look forward seeing used really good relationship fun together talking child began wringing hand together shredding tissue held moving leg jerky movement eye wide body straight tight stared father supervisor looked father shook head negatively whilst put hand child knee moving jerky quick movement asked ok child shoulder slumped let deep breath leg movement ceased verbally respond father said sharply comforting said told lot lie child straightened said firm voice looking father directly told anything father stated quickly give u going keep trying father got chair said going child said bye father said bye left tv room last occasion father spent time child e town contact centre thereafter refused supervise time 15 may 2017 interview updated family report undertaken mr n child refused meet father occasion paragraph 61 70 second family report mr n reported follows 61 child said way could foresee feeling safe around father nothing people could help feel safe whilst discussing previous supervised arrangement child advised presence contact supervisor allowed feel little bit safer 62 asked identify three wish respect wanted different regarding father child said first would wish father safer like normal dad would hurt anymore secondly would like nicer finally calmer person alleging becomes agitated nice child asked thought could possible improve situation responded dad perhaps may feel bit safer however later discussion suggested father life would make thing better 63 child asked recall last supervised visit father said brought fish chip rude speak nicely child said left contact room early burst tear uncertain father removed asked leave room supervisor instead child uncertain father make upset cried wanted leave end visit particularly noted issue discussed child seemed become stressed started fidget quite lot 64 child expressed criticism nearly every visit father would purchase gift stated gave thing away want anything usually placed item recycling bin 65 child asked describe father like dislike cooking reportedly would give mother food supposed positive memory slideshow father whilst comparing contrasting parent child identified positive quality regarding mother stating liked everything safe helped pronounce different word question posed respect father child advised liked blue eye asked whether anything disliked sought different regarding parent father child said wanted safer person regarding mother child said m wall would like move house kind want 66 returning issue safety child spoke asked provide detail comment appeared lacking said father done weird stuff reference lived unit bed child continued alleging father would take bed stuff later pretended asleep child said remembered something happened struggled recall detail 67 asked view court decided spend additional time father child said would feel sad angry unsupervised time future consideration child advised would feel angry frightened would uncertain father may possibly conversely child asked would feel time father longer occurred stated would feel happies rated intensity joy 10 10 however advised future time father ended mother would likely feel 9 10 rate happiness father 3 10 low happiness regarding outcome somewhat poignantly child stated would like forget father even opposed indirect future contact 68 respect current parenting arrangement child said becomes angry frustrated spend time father said body get angry sad want asked rate much want see father responded immediately advised rated level intensity 10 10 indicating high rate moreover child adamant wish participate counselling father view would little benefit difficulty father viewed permanent 70 asked final time seeing father even momentarily day scheduled family report interview advised court often expectation child needed seen parent family consultant response child firmly said would come angry upset yell family consultant child view examined multiple occasion attempt ass possibility facilitating observation session father child consistently refused stage displayed physical reaction suggestive high anxiety face neck cheek turned red seemed flustered also course second family report preparation interviewed 78 79 mr n reported follows relation interview 78 explained child return time father seems change becomes angry experience random outburst run bedroom cry said become withdrawn mother comfort watching television together playing board game artwork together added sister sad angry even hit whilst tell mother understands feeling frustration 79 said regular visit father child seems nervous sad angry feeling extent displayed visit first commenced said generally child fine appears feel worse visiting father get mad angry hard see big brother added noticed sister hearing improved well pronunciation various word general term advised sister seems lot better spending time father later report discussing vehemence child refusal spend future time father mr n concluded issue explored exhaustively eventually child appeared demonstrate physical reaction suggestive heightened level anxiety strong feeling becoming uncomfortable family consultant position assessed appropriate insisted coerced compelled child see father opposed strongly done would professionally unethical child focussed decision 31 october 2017 child made disclosure fellow student school reported teacher turn contacted police child interviewed queensland police 1 november 2017 interviewed 8 november mother interviewed 10 november know little investigation eventually transferred queensland police western australia police apparently western australia police received information queensland police 14 november 2017 ultimately concluded investigation april 2018 advising mother insufficient evidence lay criminal charge father trial continued prepared although one stage appeared though father disengaged proceeding later engaged current situationas time trial mother remained living b town area employed service industry child continued live child presently grade five school g town whilst know little current progress 2017 mr n contacted grade four teacher advised child display behavioural issue follows school rule asked occasionally may require clarification due hearing issue although occasion hearing issue mean misreads social cue may react differently compared child age learned various coping mechanism helped apparently academically average likely reflective hearing loss part father presently living p town obtained employment day week brisbane also work commission salesman neither mother father partnered issueswith assistance party course trial management hearing identify following issue matter sense determination likely substantially inform exercise discretion nature relationship parent child would child benefit meaningful relationship parent might best facilitated risk parent pose child would parent facilitate meaningful relationship child parent would likely effect child change primary residence mother father could party communication adequately support equal shared parental responsibility nature relationship parent child would child benefit meaningful relationship parent might best facilitated risk parent pose child would parent facilitate meaningful relationship child parent would likely effect child change primary residence mother father could party communication adequately support equal shared parental responsibility considered relevant statutory provision legal principle advance traverse residually relevant 60cc factor shall discus issue individually proceed determine appropriate order case relevant statutory provision legal principlesthe statutory regimepart vii thefamily law actcontains relevant statutory provision dealing child section 60bspecifies object ofpart vii principle underlying object following term 1 object part ensure best interest child met ensuring child benefit parent meaningful involvement life maximum extent consistent best interest child b protecting child physical psychological harm subjected exposed abuse neglect family violence c ensuring child receive adequate proper parenting help achieve full potential ensuring parent fulfil duty meet responsibility concerning care welfare development child 2 principle underlying object except would contrary child best interest child right know cared parent regardless whether parent married separated never married never lived together b child right spend time regular basis communicate regular basis parent people significant care welfare development grandparent relative c parent jointly share duty responsibility concerning care welfare development child parent agree future parenting child e child right enjoy culture including right enjoy culture people share culture section 61da 1 thefamily law actprovides court must apply presumption best interest child child parent equal shared parental responsibility child event either presumption applies otherwise child best interest order providing equal shared parental responsibility court obliged pursuant tos 65daa 1 consider certain matter including whether child spend equal time parent substantial significant time howevers 61da 2 provides presumption apply reasonable ground believe parent child person life parent child engaged either abuse child another child time member parent family person family family violence subsection 61da 4 provides presumption may rebutted evidence satisfies court would best interest child parent equal shared parental responsibility context convenient also advert tos 65dac set effect parenting order provides shared parental responsibility subsection 3 order taken require person subject consult person relation decision made major long term issue relation child make genuine effort come joint decision issue therefore seen obligation order effecting equal shared parental responsibility imposes potentially onerous finallys 60caprovides deciding whether make particular parenting order court must regard best interest child paramount consideration matter court must regard determining best interest child set in 60cc consideration mean discussion bank bank 2015 famcafc 36at 49 1 inmauldera orbel 2014 flc 93 602the full court occasion consider interrelationship betweens 60bandss 60cc 72 court applied principle enunciated inwacando v commonwealth 1981 hca 60 1981 148 clr 1in concluding object clause contained withins 60b 1 used aid construction word legislation cannot used cut plain unambiguous meaning provision meaning textual contextual surroundings clear quoting froms v australian crime commission 2005 fca 1310 2005 144 fcr 431at 22 per mansfield j 79 court concluded primary judge could attach greater weight factor referred in 60bthan outcome 60ccdeliberations honour erred abuse neglect family violence abuse defined in 4of thefamily law actin following term abuse relation child mean assault including sexual assault child b person thefirst person involving child sexual activity first person another person child used directly indirectly sexual object first person person unequal power relationship child first person c causing child suffer serious psychological harm including limited harm caused child subjected exposed family violence serious neglect child neither term neglect indeed serious neglect appears defined act absent indication act contrary therefore usual dictionary meaning discern contrary indication act relevant definition word neglect macquarie dictionary remiss care treatment family violence defined in 4ab 1 thefamily law actin following term purpose act family violencemeans violent threatening behaviour person coerces control member person family cause family member fearful section 4ab 3 provides purpose act child exposed family violence child see hears family violence otherwise experience effect family violence section 4ab 2 4 respectively give example behaviour may constitute family violence example situation may constitute child exposed family violence standard satisfaction requiredsection 140of theevidence act 1995 cth provides follows 140 1 civil proceeding court must find case party proved satisfied case proved balance probability 2 without limiting matter court may take account deciding whether satisfied take account nature cause action defence b nature subject matter proceeding c gravity matter alleged inneat holding pty ltd v karajan holding pty ltd 1992 hca 66 1992 67 aljr 170at 170 171 majority high court stated ordinary standard proof required party bear onus civil litigation country proof balance probability remains even matter proved involves criminal conduct fraud hand strength evidence necessary establish fact fact balance probability may vary according nature sought prove thus authoritative statement often made effect clear cogent strict proof necessary serious matter fraud found statement effect however understood directed standard proof rather understood merely reflecting conventional perception member society ordinarily engage fraudulent criminal conduct judicial approach court lightly make finding balance probability party civil litigation guilty conduct therefore consistent withs 140 2 taking account gravity party allegation propose carefully evaluate evidence relied upon support contended finding particularly vigilant identify place reduced weight upon inexact proof indefinite testimony indirect inference 2 notion unacceptable riskit useful consider authority give guidance unacceptable risk particularly relationship risk order court contemplating useful starting point decision full court inn separate representative 1996 flc 92 655 well known passage 82 713 4 fogarty j said thus essential importance unacceptable risk question see direction judge give real substantial consideration fact case decide whether fact could said raise unacceptable risk harm child thus value expression magical provision appropriate standard direction judge consider deeply fact particular case fall explain adequately finding regard inm v 1988 166 clr 69 high court occasion consider approach family court proceeding context allegation sexual abuse child 20 25 court said follows 20 mistake think family court duty resolve definitive way disputed allegation sexual abuse court exercising criminal jurisdiction would trying party criminal offence proceeding custody access dispute inter party ordinary sense expression reynolds v reynolds 1973 47 aljr 499 1 alr 318 mckee v mckee 1951 ac 352 pp 364 365 proceeding kind court enforcing parental right custody right access court concerned make order custody access opinion court best promote protect interest child deciding order make court give great weight importance maintaining parental tie much parent right custody access prima facie child interest maintain filial relationship parent cf j v lieschke 1987 hca 4 1987 162 clr 447 pp 450 458 462 463 464 25 effort define greater precision magnitude risk justify court denying parent access child resulted variety formulation degree risk described risk serious harm v 1976 vicrp 24 1976 vr 298 p 300 element risk appreciable risk marriage 1986 famca 62 1987 11 fam lr 765 p 770 p 771 respectively real possibility b v b access 1986 famca 52 1986 flc 91 758 p 75 545 real risk leveque v leveque 1983 54 b clr 164 p 167 unacceptable risk g minor 1987 1 wlr 1461 p 1469 imposing array indicates court striving greater degree definition subject capable yielding devising test court endeavoured effort protect child paramount interest achieve balance risk detriment child sexual abuse possibility benefit child parental access achieve proper balance test best expressed saying court grant custody access parent custody access would expose child unacceptable risk sexual abuse inharridge anor harridge 2010 famca 445murphy j referred ton separate representative supra proceeded adopt following list inquiry relation risk assessment 3 1 harmful outcome potentially present situation 2 probability outcome coming 3 risk probable situation short medium long term 4 factor could increase decrease risk probable 5 measure available whose deployment could mitigate risk probable gratefully adopt passage helpful case analysing asserted risk contact ordersplainly serious matter order child neither spend time communicate parent order properly ought restricted case outcome plainly mandated best interest child regime order appropriate workable order commonly employed court satisfied parent pose unacceptable risk harm child cannot ameliorated supervision time communication parent child authority germane situation reviewed full court inre andrew 1996 famca 43 1996 flc 92 692 however court would cut relationship child parent ground considerable hesitation issue 1 nature relationship child parentultimately evidence relation nature child relationship parent particularly controversial mr n said observation child relationship mother positive intact thought child primary attachment clearly mother relationship derived nurture comfort support child relationship father mr n said possible observe therefore view relationship formed balance material thought even father correct previously enjoyed positive relationship child although mr n expressed concern whether may accurate nonetheless deteriorated quite substantially opined currently severely fractured relationship child derived neither nurture comfort support challenge evidence made father accept issue 2 benefit meaningful relationship best mean facilitationmr n evidence child benefit meaningful relationship mother best mean facilitating relationship would regularly spending face face time mother mother involved area child life leaving aside issue alleged parental alienation father seriously challenge evidence accept benefit child may obtain relationship father mr n evidence leaving aside issue risk otherwise potential child obtain benefit relationship however child highly resistant relationship resuming point mr n despite best effort could persuade child spend even fleeting visit father time second family report interview appears though father successfully parented three son young men leaving aside propensity engage perhaps overly direct communication demonstration anger time time cannot really doubted father something offer child considerable life experience likely realistic gateway child family paternal side reason doubt child would benefit relationship substance family member follows therefore persuaded father benefit offer child however mr n indicated seems highly unlikely least present child would countenance relationship resuming issue 3 risk posed parentoverviewthis central battleground case mother contends father unacceptable risk sexual harm child alternatively unacceptable risk emotional harm part father asserts mother alienated child however develop assert child move care recognising unrealistic fatherwith assistance party course trial identified point suggest father unacceptable risk sexual harm child follows child made disclosure sexual emotional abuse father several occasion b child disclosure sometimes contained considerable detail albeit occasion little context c recipient child disclosure varied including mother counsellor albeit response leading question school teacher police much later first family report writer m occasion child evidenced distress spending time father may consistent abused e initially western australian doc found notification sexual abuse substantiated albeit later reversed hand following factual matter suggest father unacceptable risk sexual harm child child told interviewer mother told say mother rationalisation child said namely encourages child disclose whatever happened rather suggesting particular version seems rather contrived b child disclosure often lacked context c father never charged offence child timing disclosure child coincided mother desire particular gain eg leaving h town hence coaching make would strategically advantageous e evolution mother allegation rape father initially reported raise question credibility generally f nothing father history otherwise suggest sexually interested child g mother recommencing cohabiting father 2014 seemingly inconsistent view 2009 10 sexually abused child h child claim father caused deafness strangled 2 year old patently false yet one held child fervour claim abuse mind weighing various factual consideration balance tell strongly conclusion father unacceptable risk sexual harm child place particular significance upon reversal substantiation risk previously found western australian department absence police action father fact mother recommenced cohabitation father 2014 notwithstanding view history father sexually abused child year earlier say father pose risk sexual harm child disclosure necessarily mean risk must acknowledged however ass likelihood father sexually abusing child greater minimal second specie risk father said pose emotional harm point suggest father pose risk follows recent attempt coax child see father resulted mr n aborting attempt given child display physical reaction suggestive high anxiety b e town contact centre refused conduct supervised visit father time child basis posed risk emotional harm child c m social worker declined therapeutically engage child view reintroducing father child indicated wish spend time father quite contrary vehement wish e prospect father fact sexually abuse child forcing spend time may traumatise mr n evidence identical traumatising may occur father abuse child nonetheless belief seems case f father demonstrated history poor emotional self regulation mother child hand following point suggest father unacceptable risk emotional harm child child able degree enthusiasm engage father brief period time e town contact centre time b likely child exposed mother view father may reflecting rather experience based belief although mother put aspect case unacceptable risk seem though evidence demonstrates father per se present unacceptable risk harm child emotional kind least sign evidence spending time past affected sort harm rather seems likely reaction child spending time father matter take account assessing best interest context whether order time communication father motherthe evidence would permit conclude mother set alienate child father said matter point direction particularly several occasion associated allegation sexual misconduct others child b h town allegation relation child plainly used basis obtaining permission relocate away region c campaign 2010 involving repeatedly taking child medical examination suggests desire achieve adverse finding father however may seriously doubted level detail disclosure child given occasion could wholly without specie factual foundation albeit perhaps necessarily sexual assault way h town allegation first came light disclosing counsellor school rather mother child making disclosure unusual mother individual long history initially troubled childhood later drug alcohol abuse sexual abuse poor emotional functioning asserted belief relation father abused child must understood background persuaded mother pose unacceptable risk harm alienating child father event noted notwithstanding father case press change living arrangement child issue 4 would parent facilitate meaningful relationship childmr n evidence unchallenged accepted mother supportive relationship child father contemplated even order made requiring relationship resume mother would find extremely difficult support accept mother interest inclination supporting relationship child father father mr n evidence although father indicated child live would support relationship mother facilitate child spending time mother uncertain genuinely held thought good prospect father capacity promote relationship would limited beyond share concern event father seek order child live issue 5 would likely effect child party proposalsthe mother proposal child spend time communicate father mr n opined likely see child settled content lifestyle living father given hold steadfastly belief father pose risk harm child belief harmed past young informs child likely perceive safer arrangement said absence father child life might cause sense loss thought long safety attended perceived safe mother care likely child could supported sense loss accept evidence time mr n gave evidence father primary position child undergo counselling remain mother care mr n thought impact child would extremely difficult one seem optimistic prospect therapy would convince memory inaccurate thought going path would difficult journey moreover risk traumatisation child father alternative proposal time mr n evidence still pressed child moving live mr n thought would disastrous child primary attachment mother said sense security emotional warmth derived entirely described mother child safety net perceives mother protects thought remove someone derives sense safety care someone belief abused would make feel like thrown lion den thought description justified perception sense fear child father predicted child might withdraw forced father care abscond even though still young thought prospect self harming limited could exclude accept evidence issue 6 could party communication support equal shared parental responsibilitymr n evidence point emphatic said answer question absolutely accept evidence party cannot communicate civil way follows therefore order equal shared parental responsibility would complete failure section 60cc considerationsit appreciated already addressed primary consideration number additional consideration traversing issue nonetheless make following observation difficult ass nature relationship child member paternal family evidence likely aware recollection presently derives real benefit relationship fractured event vintage father somewhat inexplicably make effort spend time communicate child april november 2015 notwithstanding order permitting father presently pay child support albeit reflects state present assessment father life p town mother b town inevitably would practical difficulty expense child spending time father regular basis satisfied family violence party family violence order made time time inference draw latter party occasion behave violent way towards various situation whilst would preferable make order least likely lead institution proceeding case consideration cannot outweigh factor otherwise inform child best interest lie parental responsibilityi satisfied reasonable ground believe family violence party presumption equal shared parental responsibility therefore arise event satisfied order equal shared parental responsibility would wholly unworkable need order sole parental responsibility need reflect primary living arrangement child child liveas indicated ultimately father press order would see child move primary care satisfied indeed order would child best interest always lived mother primary attachment never lived solely father genuinely held fear father posing risk harm plainly child best interest live mother time communication fatherthe mother proposal child neither spend time communicate father father case child live mother undergo counselling clinical child psychologist possible could persuaded start spend time course trial party assistance identified following point favour mother proposal father proposal child primary attachment mother relationship derives principal nurture comfort support b child always primarily mother care never primarily lived father spent time whatsoever since april 2017 c mother proposal would wholly eliminate risk harm child posed father child relationship father currently severely fractured e child regularly expressed strong view wanting spend time father predicts limited prospect success either positively engaging counselling otherwise working towards rebuilding relationship father f level consistency child independently expressed view various expert lengthy period time wish relationship father therefore require view given weight g father sexually abuse child spending time father would likely traumatise h credibility claim parental alienation mother supervised contact visit would given opportunity evidence positive loving relationship father child surface mother support relationship child father predicts prospect rebuilding low j even allegation sexual abuse false mother coached child make child belief attitude towards father may nonetheless never change even intervention proposed father k father proposal premised fact child counselled child psychologist undo parental alienation however certainty work may even damage mental health hand identified following point favouring father proposal telling mother father proposal would likely optimise benefit child would derive relationship b father proposal one see realistic prospect child ever meaningful relationship indeed paternal family generally including three half sibling c father proposal one might see child meaningful relationship parent father proposal would disrupt child attachment mother sibling bond e father proposal might degree mitigate risk mother household pose child alienated father f father proposal perhaps one least likely lead litigation concedes obtain order seek seek litigate g family report writer supported recommendation counselling clinical child psychologist finding potential risk sexual harm posed father although precise finding made h extent child belief abuse false father proposal way child may best disabused belief weighing matter balance unfortunately lead firmly sad conclusion mother proposal least likely harm child give pleasure whatsoever conclude particularly given view father something offer child however really doubt mother proposal one sufficiently protects child consequence belief father harmed continues pose risk harm moreover place weight upon fact m unable move child forward view reunifying father repeat process albeit clinical child psychologist rather social worker mean likely lead different conclusion particularly child subsequent behaviour e town contact centre mr n predicts likely respond negatively attempt introduce father experience serious distress anxiety upset plainly form emotional harm mind far outweighs chance intervention may achieve success introducing father therefore unfortunately sad circumstance case satisfied child best interest lie mother proposal father therefore order father spend time child save permitted occasional written communication able send gift special occasion contemplated independent child lawyer mother ordersotherwise order largely proposed independent child lawyer mother satisfied child best interest conclusionfor reason order set commencement judgment certify preceding one hundred seventy two 172 paragraph true copy reason judgment honourable justice tree delivered 7 november 2018 associate date 7 november 2018 1 although case relation interim order reason think equally apply final order 2 seek v r 1997 famca 57 1997 22 famlr 592andre w sex abuse standard proof 2004 famca 768at 15 3 taken b mahendra psychiatric risk assessment family child law 2008 38family law569
Khanna v Baweja & Anor [2019] NSWCA 193 (8 August 2019).txt	khanna v baweja anor 2019 nswca 193 8 august 2019 last updated 8 august 2019court appealsupreme courtnew south walescase name khanna v baweja anormedium neutral citation 2019 nswca 193hearing date 22 july 2019decision date 8 august 2019before white ja 1 mccallum ja 37 decision 1 extend time filing application leave appeal order district court made 2 february 2018 date filing summons leave appeal 2 order summons leave appeal order district court made 1 september 2017 2 february 2018 dismissed cost catchword landlord tenant application leave appeal summary dismissal statement claim merit various complaint habitability premise identity landlord addressed new south wale civil administrative tribunal statement claim reformulates many claim whether landlord failure provide approval occupation certificate entitles tenant refund rent whether allegation precluded issue estoppel issue principle general importance application leave appeal dismissedlegislation cited environmental planning assessment act 1979 nsw s 109h 109mevidence act 1995 nsw s 69 91residential tenancy act 2010 nsw s 77 187cases cited khanna v baweja 2017 nswcatap 107khanna v baweja baweja v khanna 2017 nswcatcd 8khanna v gunesekara or 2018 nswdc 133port melbourne authority v anshun pty ltd 1981 147 clr 589 1981 hca 54ppk willoughby pty ltd v baird 2019 nswca 48category principal judgmentparties sanjeev khanna applicant jaskeerat singh baweja first respondent powerlist pty ltd response real estate baulkham hill second respondent representation counsel berberian respondent solicitor colin biggers paisley first respondent moray agnew second respondent file number 2018 67966decision appeal court tribunal district court new south walesjurisdiction civilcitation n adate decision 1 september 2017 2 february 2018before taylor sc dcj cowdroy adcjfile number 2017 80538 note theuniform civil procedure rule 2005provide rule 36 11 unless court otherwise order judgment order taken entered recorded court computerised court record system setting aside variation judgment order dealt byrules 36 15 36 16 36 17and36 18 party particular note time limit fourteen day inrule 36 16 judgmentwhite ja application leave appeal order district court made 1 september 2017 taylor sc dcj 2 february 2018 cowdroy adcj dispositive order cowdroy adcj 2 february 2018 refusing applicant leave file notice motion draft amended statement claim summarily dismissing applicant proceeding first respondent application entered residential tenancy agreement applicant wife occupy residential property dairy road glenwood second respondent first respondent managing agent named residential tenancy agreement summons leave appeal also challenge earlier order made taylor sc dcj 1 september 2017 honour struck applicant existing pleading including amended statement claim filed 15 june 2017 ordered 2 direct motion filed plaintiff motion seeking leave file amended statement claim desired joinder mr khanna plaintiff notice produce served called upon time plaintiff given leave file amended statement claim 3 grant leave defendant relist renew application dismissal proceeding event leave granted filing amended statement claim 31 october 2017 4 plaintiff pay defendant cost today summons leave appeal filed 26 september 2018 well time would grant extension time appeal order made taylor sc dcj 1 september 2017 explanation delay order interlocutory dispositive applicant given right seek leave replead respondent application summary dismissal acceded although respondent given leave renew application applicant obtain leave file amended statement claim 31 october 2017 dispositive order cowdroy adcj 2 february 2018 applicant adduced evidence ill health explain delay 2 february 26 september 2018 filing summons leave appeal notice intention appeal order cowdroy adcj filed 1 march 2018 respondent point prejudice extension time given respondent submit court accept applicant unable prepare appeal document period february may 2018 asserted time applicant appeared person unrelated proceeding cross examined witness respondent sought rely reported decision district court khanna v gunesekara or 2018 nswdc 133 assuming 1 without deciding judgment used evidence existence fact issue proceeding judgment given evidence act 1995 nsw 91 1 suffices note judgment record applicant appear 23 february appear 13 april 18 21 may 2018 district court judge noted applicant suffered coronary heart disease health condition awaiting heart surgery judge said applicant ultimately made focused cogent submission matter issue also represented wife proceeding absence relevant prejudice regard evidence applicant ill health well evidence relied upon respondent showing applicant need attend legal business given significance summary dismissal proceeding time filing summons leave appeal order cowdroy adcj 2 february 2018 extended applicant wife occupied premise dairy court glenwood 2010 2013 first respondent bought property 8 march 2015 relevant residential tenancy agreement property signed applicant wife tenant first respondent landlord 10 march 2016 first respondent gave notice rent increase 13 april 2016 applicant wife commenced proceeding new south wale civil administrative tribunal tribunal challenging rent increase seeking order unders 187 1 h theresidential tenancy act 2010 nsw requiring first respondent comply act regulation application asserted landlord kept property repair foreshadowed claim compensation injury alleged sustained applicant wife january march 2015 primary judge recorded applicant essential claim dwelling never approved occupation final occupation council property fit occupation defect building mould moisture leak uneven driveway 21 july 2016 applicant wife made application tribunal including application compensation 15 000 unspecified ground 7 october 2016 first respondent made application tribunal seeking order terminating residential tenancy agreement giving first respondent possession premise 1 february 2017 ancillary application made tribunal tribunal rejected applicant contention raising rent excessive rejected applicant contention landlord required pay compensation upheld landlord claim possession khanna v baweja baweja v khanna 2017 nswcatcd 8 tribunal also refused belated application applicant wife amend claim recover rent paid residential tenancy agreement claim described 79 claim compensation equivalent whole rent paid rta basis either residential premise uninhabitable since commencement tenancy landlord registered proprietor residential premise therefore entitled collect rent respect tribunal considered substantially dismissed applicant complaint concerning fitness premise residential habitation para 111 146 17 may 2017 appeal panel confirmed order tribunal khanna v baweja 2017 nswcatap 107 appeal panel said 39 40 argument support appellant claim premise could subject residential tenancy agreement relation claim rent excessive considered submission premise approved tribunal member evidence relating building permission approval certification premise summarised 28 142 4 found evidence building non compliance notice similar ever issued building approval certification authority paragraph 142 4 member found 149 evidence capable supporting finding legal impediment occupation residential premise time tenant entered residential tenancy agreement premise provided tenant state fit habitation finding open member evidence error law established member making finding appellant claim entitled order monies collected rent 26 august 2013 refunded claim term made first instance proceeding noted paragraph 7 leave refused tribunal member amend application add claim extent claim raised appeal appears based appellant contention valid residential tenancy agreement even appropriate permit appellant raise claim appeal appeal panel find basis satisfied reason given error law demonstrated member determination valid residential tenancy agreement tenant landlord respect residential premise appeal panel refused leave appeal nonetheless dismissed appeal order self contradictory leave appeal refused would appeal dismiss contradiction may important determining whether arguable issue estoppel could arise appeal panel order amended statement claim struck taylor sc dcj proposed amended statement claim considered cowdroy adcj 2 february 2018 included allegation registered proprietor concealed middle name address residential premise residential tenancy agreement alleged give rise identification fraud complaint rejected taylor sc dcj 7 13 repeated proposed amended statement claim leave sought cowdroy adcj claim manifestly untenable claim effect advanced tribunal support argument established first respondent registered proprietor hence landlord residential tenancy agreement entered applicant wife therefore neither managing agent could terminate agreement 57 tribunal pointed inherent contradiction applicant position sought compensation first respondent landlord tribunal also rightly observed first respondent registered proprietor would follow could landlord 58 tribunal found evidence clearly established first respondent registered proprietor 59 60 proposed amended statement claim also alleged property rented respondent certificate approval property statement claim pleaded building permit clearly stated building shall used occupied approved council obtaining certificate approval building erected 1995 statement claim clearly plead certificate approval required given alleged building uninhabitable latter contention rejected tribunal contrary fact applicant wife inhabited building year attempted rent increase applicant alleged first respondent required return rent paid wife occupation property apparently unlawful first respondent let property absence relevant approval certificate effect illegality tenant applicant could recover rent paid even though benefit occupying property reasonable rent contention determined taylor sc dcj rejected cowdroy adcj ground identical claim made tribunal tribunal first instance found 149 case evidence whatsoever capable supporting finding tribunal legal impediment occupation residential premise time tenant entered rta evidence capable supporting finding residential premise provided tenant state fit habitation however said relation specific issue whether landlord breached provision residential tenancy agreement relation dimension garage door gradient driveway tribunal reason 146 conclusion essential determination applicant claim tribunal compensation breach residential tenancy agreement appear tribunal first instance determined wider claim made proposed statement claim filed district court indeed appears reason appeal panel although claim least claim similar effect sought raised appeal panel appeal panel refused leave appeal arguable order tribunal created issue estoppel precluding raising claim district court claim ananshunestoppel port melbourne authority v anshun pty ltd 1981 147 clr 589 1981 hca 54 would raise question fact claim propounded due time tribunal explained application summary dismissal arguable ground upon part claim summarily dismissed cowdroy adcj erroneous nonetheless claim applicant wife entitled return rent paid occupation premise approval certificate obtained plainly untenable oral submission applicant contended certificate required never given certificate approval council required condition building permit issued may 1995 building shall used occupied approved council noted first respondent purchased property 2013 applicant wife commenced occupation 2010 period occupation premise 109m theenvironmental planning assessment act 1979 nsw provided 109moccupation use new building requires occupation certificate 1 person must commence occupation use whole part new building within meaning section 109h unless occupation certificate issued relation building part 2 section apply occupation use new building purpose erection building form part exempt development development otherwise require development consent b occupation use new building time expiration 12 month date building first occupied used c occupation use new building person circumstance may prescribed regulation occupation use new building erected behalf crown behalf prescribed person applicant plead building question new building within meaning 109h evidence tribunal built 1995 three year 109m commenced operation even building new building defined restriction occupancy building apply occupation use 12 month date building first occupied used 109m 2 c applicant occupation building plainly expiration 12 month even 109m section identified precluded letting building applicant wife applicant identify arguable basis saying would entitle applicant return rent paid without allowance reasonable occupation fee occupation premise applicant plead attempt show statutory provision rendered agreement occupation illegal failure consideration rent paid applicant wife benefit year accommodation building applicant could complain breach cl 13 2 tenancy agreement warranty legal impediment applicant occupation premise even mounted complaint even could establish legal impediment existed would still justify refund rent paid amended statement claim applicant sought leave file plead cause action made sense plead fact might give claim relief named powerlist pty ltd trading response real estate baulkham hill second defendant far allegation understood second defendant second respondent entered residential tenancy agreement behalf first respondent applicant wife business name response real estate cancelled asic register 2000 new company second respondent created 2002 authority collect rent alleged despite fact agency agreement entered 2015 clearly correctly name powerlist pty ltd agent second respondent authority collect rent otherwise misled plaintiff named powerlist pty ltd tenancy agreement rather powerlist pty limited section 149of thecorporations act 2001 cth provides ltd acceptable abbreviation limited first respondent concealed middle name residential tenancy agreement applicant wife fraudulent misrepresentation name jasheerat singh baweja rather jaskeerat baweja identified lip register registered proprietor allegation concedes first respondent registered proprietor first respondent agreed sell property 5 000 accepted agent respect allegation applicant plead term alleged contract sale provide particular made claim damage breach claim return deposit property uninhabitable unsafe result plaintiff suffered injury pleaded matter property unfit habitation first respondent failed repair condition building permit requiring council approval property used occupied pleaded unfulfilled first respondent breached various provision theresidential tenancy act 2010 nsw first respondent falsely deceived plaintiff representing residential premise final certificate construction according drawing material fact alleged representation pleaded applicant plead reliance representation basis claiming damage second respondent acted fraudulently response real estate cancelled 2000 response real estate powerlist pty ltd fraudulently took rent property approved council applicant entitled amount loss damage refund rent letting without certificate approval service address residential premise response real estate authority ever rent common property claim rent first plaintiff must return interest pursuant ucprrule 3definition repeat paragraph 11 4 11 4 1 para 11 4 11 4 1 applicant wrongly evicted earlier property agent acted owner prior sale property acted fraudulently apparently property manager use true name first respondent owed applicant duty care breached noted claim damage alleged alleged breach duty care allegedly resulting injury allegation made variation theme allegation proposed pleading determined applicant wife tribunal giving rise issue estoppel tribunal decision final subject appeal bound party respect finding fact law legally indispensable decision extent new claim raised district court finding tribunal essential decision proposed statement claim incoherent plead material fact suggested viable cause action reasonably arguable applicant claim district court properly summarily dismissed obtain leave appeal applicant would need show issue principle question public importance reasonably clear injustice going beyond something merely arguable ppk willoughby pty ltd v baird 2019 nswca 48 6 present application raise issue principle question public importance applicant contention reasonably clear injustice even rise level arguability merit claim addressed tribunal internal appeal appeal panel new formulation claim far understood unmeritorious well futile reason propose following order 1 extend time filing application leave appeal order district court made 2 february 2018 date filing summons leave appeal 2 order summons leave appeal order district court made 1 september 2017 2 february 2018 dismissed cost mccallum ja agree order proposed white ja reason honour stated 1 least arguable judgment business record within meaning ofs 69of theevidence act 1995 nsw forming part record belonging kept entity course purpose business contains previous representation recorded document course purpose business 69 1 business includes activity carried person holding office exercising power australian law engaged carried performance function office exercise power private capacity dictionary pt 2cl 1 1 exclusion in 91is presently relevant maker previous representation judge personal knowledge day applicant attended court
Workcover Corporation (Inghams Enterprises v Peter Warren [1995] SAWCAT 141 (25 October 1995).txt	workcover corporation inghams enterprise v peter warren 1995 sawcat 141 25 october 1995 141 1995workers compensation appeal tribunalworkers rehabilitation compensation act 1986 matter appeal byworkcover corporation inghams enterprisespty ltd employer determination areview officerdated 6th day september 1995 also concern peter warren worker 283w 1995 tribunal honour deputy president b p gilchristreasons decisionpublished 25th day october 1995 appeal whether workcover enabled delegate power make determination particular employer corporation empowered enter contract private sector management claim private sector body exercise power function corporation contract private body authorised regulation pilot scheme whether pilot scheme certain employer established defined statutory provision whether participant scheme delegated power function necessary manage claim whether power make determination respect claim delegated member pilot scheme whether employer empowered make determination worker longer incapacitated pilot scheme yet established corporation inferred self non existent statutory power appeal dismissed section 14 4 ii 14 4 b 17 2 workcover corporation act 1994 worker rehabilitation compensation act 1986 appearance mr ricketts counsel appellant mr p humphries counsel respondent decision
Zachiz Pty Ltd Atf The Tom Stojanovski Family Trust (Migration) [2018] AATA 1924 (29 March 2018).txt	zachiz pty ltd atf tom stojanovski family trust migration 2018 aata 1924 29 march 2018 last updated 28 june 2018zachiz pty ltd atf tom stojanovski family trust migration 2018 aata 1924 29 march 2018 decision recorddivision migration refugee divisionapplicant zachiz pty ltd atf tom stojanovski family trustcase number 1711032dibp reference bcc2016 2788402member mark bishopdate 29 march 2018place decision melbournedecision tribunal set aside decision review substitute decision approving nomination statement made 29 march 2018 9 47amcatchwordsmigration nomination refusal direct entry nomination stream genuine need paid employee motor mechanic requirement r 5 19 met decision review set asidelegislationmigration act 1958 245armigration regulation 1994 rr 1 13a 1 13b 5 19statement decision reasonsapplication reviewthis application review decision made delegate minister immigration 18 may 2017 reject applicant application approval nomination position australia r 5 19 themigration regulation 1994 regulation applicant applied approval 23 august 2016 requirement approval nomination position australia found r 5 19 regulation contains two alternative stream temporary residence transition nomination r 5 19 3 stream direct entry nomination r 5 19 4 stream application made accordance r 5 19 2 meet requirement either stream application must approved requirement met application must refused r 5 19 5 case applicant applied approval nomination seeking satisfy criterion direct entry nomination stream delegate refused application basis applicant nomination satisfy r 5 19 4 ii regulation application approval identify need employ paid employee work nominated position nominator direct control theapplicant appeared tribunal 29 march 2018 give evidence present argument applicant represented relation review registered migration agent following reason tribunal decided set aside decision review substitute decision approving theconsideration claim evidencethe issue case whether applicant meet requirement approval nomination direct entry nomination stream set r 5 19 4 extracted attachment decision nomination approved requirement must met application compliant r 5 19 4 regulation 5 19 4 requires application approval must approved form must accompanied prescribed fee applicable must include required written certification relating conduct contravenes 245ar 1 application must also identify need nominator employ paid employee work position direct control nominator lodged application 23 august 2016 include certification nominator engaged conduct contravenes 245ar 1 nominator provided statement expressly said company expanding expansion limited company ability attract skilled labour motor mechanic nominator provided organizational chart show nominee would report directly nominator work direct control accordingly requirement r 5 19 4 met nominator actively lawfully operating business australia r 5 19 4 b regulation 5 19 4 b requires applicant actively lawfully directly operating business australia applicant provided following documentation asic company detail zachiz pty ltd registered 18 december 2007 company next review date 18 december 2018 activity statement australian taxation office ato august 2016 may 2017 august 2017 november 2017 trustee tom stojanovski family trust trust tax return tom stojanovski family trust financial year ended 30 june 2017 current historical detail abn 97 190 378 367 detail trustee tom stojanovski family trust record extracted 16 february 2016 nominator actively lawfully operates business australia directly operates business accordingly requirement r 5 19 4 b met position labour hire r 5 19 4 c regulation 5 19 4 c applies nominator whose business activity include relating labour hire unrelated business case nominated position must within business activity nominator applicant provided copy contract employment zachiz pty ltd atf tom stojanovski family trust employer daniel masih employee schedule stated employee employed full time motor mechanic working 38 hour per week reporting director designated position identified employer business accordingly requirement r 5 19 4 c met term employment visa holder r 5 19 4 regulation 5 19 4 requires nominee employed nominated position least 2 year full time term condition employment expressly exclude possibility extension schedule contract employment referred paragraph 16 identified term position 3 year cl 2 contract employment provides extension term contract company viable employ extra staff examination financial account strong indicator financial viability otherwise company company provided letter corbett chartered accountant advisor dated 10 may 2017 provided confirmation entity financial capacity sustain full time employment superannuation contribution nominee minimum period two year required regulation tribunal give letter significant weight nominator provided copy financial statement fy2014 fy2015 fy2016 fy2017 financial statement prepared firm accountant dated signed director tribunal give statement significant weight statement showed following sale increasing 424 797 fy2014 619 367 fy2017 increase 194 570 46 4 year period base line 2014 showing expanding business net profit year fy2014 39 339 fy 2015 64 424 fy2016 79 845 fy2017 92 309 showing growing profit net profit sale increasing 9 2 14 9 4 year period showing company arguably efficient certainly growing profitability wage superannuation sale increasing 17 23 showing increase marginal best probably due 2017 increase employee number expense sale increasing 34 41 due exclusively increase 2017 wage superannuation expense excluding one increase 2017 expense sale actually declined 34 32 indicator company growing profitability capacity employ extra labour neededthe tribunal inquired following matter reason large increase labour cost fy2017 nominator advised company retained lot extra client consequence increasing demand work general mechanical repair car truck machinery exacerbated fruit picking season staff number last 4 year reasonably steady 3 full time person supplemented casual labour busy time future plan expansion nominator advised shed workshop almost capacity moment whilst plan expand extending shed satisfied current level work capacity constraint within existing premise capacity constraint within existing plant equipment low value non current asset nominator explained replaced need basis regularly service maintained generally long life main expense consumer good oil etc part little need replacement machinery additional machinery high cash bank figure nominator unable explain large figure point similarly large figure balance sheet trade payable reason large unpaid trust distribution child minor distribution done appropriate time receiving advice accountant nominee gave evidence resident australia 4 year spent little excess 2 year studying certificate level automotive mechanic lived shepparton time employed mechanic nominator since october 2016 nominee advised seen advertisement job local paper nominee advised tribunal gross net wage payment tax superannuation tribunal reason doubt evidence nominator nominee critical respect confirmed written submission financial documentation provided nominator tribunal tribunal give evidence nominator nominee significant weight company provided ba quarterly statement calendar year 2016 2017 tribunal examined ba fy2017 derived ba two calendar year 2016 2017 tribunal could detect anomaly discrepancy document financial statement company provided trust tax return fy2017 tribunal examined key field superannuation expense cost sale motor vehicle expense asset liability current non current financial statement trust tax return tribunal could detect anomaly discrepancy two different set document short company started small base expanded significantly kept cost control critical figure wage superannuation expense increased marginally company become productive time profitable tribunal view company capacity employ extra labour wisely used extra labour enable company continue shifting cost curve become even profitable time critically company provided necessary financial documentation signed dated authorised attested appropriate tribunal could satisfy various requirement regulation accordingly requirement r 5 19 4 met le favourable term condition employment r 5 19 4 e regulation 5 19 4 e requires term condition employment applicable nominated position le favourable would provided australian citizen permanent resident performing equivalent work workplace location applicant provided extract follows payscale showed median australian wage entry level automobile mechanic 42 766 10 october 2016 seek showed salary mobile motor mechanic range 45 000 54 000 3 march 2017 open university showed average salary motor mechanic 10 october 2016 42 000 multiple copy pay slip name nominee showed salary hour worked payment mtaa superannuation fund gross net wage accordingly requirement r 5 19 4 e met adverse information known immigration r 5 19 4 f regulation 5 19 4 f requires adverse information known immigration nominator person associated nominator reasonable disregard information purpose adverse information associated meaning given rr 1 13a 1 13b evidence tribunal concerning adverse information known immigration nomination person associated nominator accordingly requirement r 5 19 4 f met satisfactory compliance workplace relation law r 5 19 4 g regulation 5 19 4 g requires applicant satisfactory record compliance law commonwealth state territory applicant operates business employ employee business relating workplace relation evidence tribunal suggests applicant satisfactory record compliance workplace relation commonwealth state victoria accordingly requirement r 5 19 4 g met task position genuine need position training requirement r 5 19 4 h tribunal determines follows position business located shepparton victoria nominator advised zachic pty ltd growing business recently moved larger premise nominator outlined detail mechanical service offered company nominator advised business grown consistently recent year provided appropriate financial documentation supported proposition nominator advised needed hire additional mechanic shortage mechanic regional area company unable take order consequently growth limited nominator advised advertised position motor mechanic classified section shepparton news nominator received one application vacant position nominee nominator unable find suitable australian citizen permanent resident position nominator provided detailed position description motor mechanic position description addressed computer use electronic scanning equipment vehicle maintenance task service repair brake system task cooling stem service repair function repair exhaust system task associated service repair suspension system also addressed comprehensive range function carried motor mechanic service maintenance repair motor vehicle operating system engine part task performed position correspond task occupation specified instrument nominator provided signed regional certifying body advice certificate shepparton division department economic development job transport resource dfdjtr nominator provided statement 15 march 2018 outlined following nominee employed zachiz pty ltd since 5 september 2016 full time employee staff number 3 inclusive nominator nominee company advertised many time local area staff member little success maintaining nominee staff member allow company grow service need customer accordingly requirement r 5 19 4 h met concluding paragraphsbased finding tribunal satisfied applicant meet requirement r 5 19 approval nomination position australia decisionthe tribunal set aside decision review substitute decision approving nomination mark bishopmemberattachment extract themigration regulation 19945 19 approval nominated position employer nomination 2 application must made accordance approved form 1395 aa include written certification nominator stating whether nominator engaged conduct relation nomination constitutes contravention subsection 245ar 1 act b accompanied fee mentioned inregulation 5 37 direct entry nomination 4 minister must writing approve nomination application approval made accordance subregulation 2 ii identifies need nominator employ paid employee work position nominator direct control b nominator actively lawfully operating business australia ii directly operates business c nominator whose business activity include activity relating hiring labour unrelated business position within business activity nominator hire unrelated business following apply employee employed full time basis position least 2 year ii term condition employee employment include express exclusion possibility extending period employment e term condition employment applicable position le favourable term condition provided ii would provided australian citizen australian permanent resident performing equivalent work workplace location f either adverse information known immigration nominator person associated nominator ii reasonable disregard adverse information known immigration nominator person associated nominator g nominator satisfactory record compliance law commonwealth state territory applicant operates business employ employee business relating workplace relation h either following apply task performed position performed australia correspond task occupation specified minister instrument writing sub subparagraph aaa occupation applicable person identified subparagraph ii accordance specification occupation b either nominator business operated least 12 month nominator meet requirement training australian citizen australian permanent resident specified minister instrument writing sub sub subparagraph ii nominator business operated le 12 month nominator auditable plan meeting requirement specified instrument mentioned sub sub subparagraph ii following apply position located regional australia b genuine need nominator employ paid employee work position nominator direct control c position cannot filled australian citizen australian permanent resident living local area place task performed position correspond task occupation specified minister instrument writing sub subparagraph da occupation applicable person identified subparagraph ii accordance specification occupation e business operated nominator located place f body specified minister instrument writing sub subparagraph ii located state territory location position advised minister matter mentioned paragraph e sub subparagraphs b c
V96_05142 [1998] RRTA 2882 (28 May 1998).txt	v96 05142 1998 rrta 2882 28 may 1998 refugee review tribunaldecision reason decisionrrt reference v96 05142country reference sri lankatribunal member b f kissanedate decision 28 may 1998place melbournedecision tribunal affirms decision grant protection visa catchword political opinion imputed support ltte sinhalese majority moved colombo east already located backgroundthe applicant citizen sri lanka arrived australia early 1996 19 january 1996 lodged application protection visa department immigration multicultural affair themigration act 1958 act 20 september 1996 delegate minister immigration multicultural affair refused grant protection visa 8 october 1996 applicant sought review decision issue arises case validity application review tribunal jurisdiction review delegate decision legislationa criterion protection visa time decision minister review tribunal satisfied applicant person australia protection obligation 1951 convention relating status refugee amended 1967 protocol relating status refugee s 5 1 and36 2 act australia party refugee convention refugee protocol generally speaking protection obligation people refugee defined refugee conventionarticle 1a 2 convention defines refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return definition considered high court inchan yee kin v miea 1989 hca 62 1989 169 clr 379 applicant anor v miea anor 1997 142 alr 331 354 andmiea v guo anor 1997 144 alr 567 575 6 federal court number case notablyram v miea anor 1995 fca 1333 1995 57 fcr 565 case established following general principle inguo case court observed definition contains four key element first applicant must outside country second applicant must fear persecution inapplicant gummow j 375 referred primary meaning term persecution ordinary usage action persecuting pursuing enmity malignity esp infliction death torture penalty adherence religious belief opinion view repression extirpation every threat harm interference person right convention reason constitutes persecuted mason cj referred persecution requiring serious punishment penalty significant detriment disadvantage chanat 388 harm threat harm part course selective harassment person whether individually member group subjected systematic harassment amount persecution done convention reason appropriate case may include single act oppression serious violation human right measure disregard human dignity persecution must official quality sense official officially tolerated uncontrollable authority country nationality persecution implies element motivation part persecute infliction harm people persecuted something perceived attributed persecutor third reason persecution must found singling one convention reason race religion nationality membership particular social group political opinion phrase reason serf identify motivation infliction persecution fourth applicant fear persecution convention reason must well founded fear add objective requirement requirement applicant must fact hold fear person well founded fear persecution convention genuine fear founded upon real chance persecution convention stipulated reason fear well founded real substantial basis merely assumed mere speculation real chance one remote insubstantial far fetched possibility person well founded fear persecution even though possibility persecution occurring well 50 per cent addition applicant must unable unwilling fear avail protection country object convention provide refuge lost thede jureorde factoprotection government unwilling return country nationality follows whenever protection country nationality available ground based well founded fear refusing person concerned need international protection refugee whether applicant satisfies convention definition assessed upon fact exist decision made requires consideration matter relation reasonably foreseeable future mere fact person claim fear persecution particular convention reason establish either genuineness asserted fear well founded reason claimed applicant persuade tribunal statutory element made guo caseat 596 claim evidencethe applicant claim set written submission department interview officer department written submission tribunal oral evidence given tribunal 21 april 1998 follows applicant sinhalese ran business company town east 19 19 date claimed moved colombo however stated hearing accommodation colombo 19 onwards worked name enterprise assistant operation manager claimed date departure early 1996 australia initial application applicant claimed left sri lanka received death threat activist tamil liberation infiltrated colombo known place small town near place east claimed wanted use home near sri lankan government place use company vehicle transport restricted item applicant claimed police strong suspicion still contact tamil activist claimed constantly harassed detained twice two day also claimed previously held tamil camp east thirteen day refusing transport restricted item detailed statement 10 april 1996 applicant claimed detained tamil rebel late 19 co operating ltte claimed locked time beaten stick claimed released condition supported claimed fear reprisal continued delivery claimed date threatened group tamil activist home claimed another occasion detained one week police restricted good found lorry stated told police know carrying good however claimed police believe produced purport extract english complaint book police station document dated date signed officer charge postage stamp affixed statement signed applicant date transporting good hearing applicant claimed detained occasion period two day pointed previously stated detained one week claimed took long time search truck one week applicant claimed another occasion police found restricted item truck claimed police locked claimed pleaded know carrying produced another statement dated date taken police book time sinhalese reported incident stated hearing charged offence result incident hearing applicant maintained lived permanently east date however hearing stated wife son daughter lived initially another place around 19 two three year moved colombo applicant moved colombo claimed police suspected also claimed tamil east located insisted support claimed tamil person visited address name road shortly thereafter bomb blast government office police came see taken police station questioning questioned entire day tamil looking person visited premise wife told person home result found new place town however tamil person east spoke street moved family back name road lived hide tamil claimed uncle visited date decided apply come australia wife child live house town restricted area near government office document examination unit examined statement date unit stated police documentation generally prepared sinhala english stated bear simple wet seal 10 rupee postage stamp attached applicant application visitor visa australian embassy colombo state employed name enterprise place employed firm year month also indicates applicant property another place well asset applicant claimed hearing returned colombo would killed recently spoken wife moved room closer child school claimed informed ltte wanted buy place near government office living hearing submission made applicant behalf numerous newspaper cutting mainly situation colombo provided tribunal also provided report felicity rousseaux counsellor advocate victorian foundation survivor torture report state applicant present depressed anxious experiencing sleep disturbance intrusive thought hallucination memory loss inability imagine positive future suicidal ideation grief report also contains history applicant compiled author finding reasonsthe applicant claimed lived east 19 however visa application stated working company colombo year addition told tribunal accommodation colombo 19 evidence trip east ceased date tribunal note submission applicant adviser relation location however given matter tribunal satisfied appropriate ass applicant relation colombo issue location east arise put another way tribunal satisfied applicant already located east applicant claimed problem east result required assist ltte claimed period detention day ltte described detail detention counsellor foundation whilst tribunal doubt period detention occurred 19 lived colombo since longer carry business involved time whilst applicant make claim approached ltte colombo tribunal satisfied risk similar detention ltte whilst resides colombo applicant claimed detained military two occasion result found restricted item relation first period detention applicant given different story period detained result tribunal satisfied applicant detained claimed found carrying restricted item tribunal see reason would suffered prosecution result action statement know carrying good simply plausible applicant knew would cross various checkpoint tribunal view would run risk knowing carrying tribunal also note applicant provide date detention received statement purportedly made police given factor tribunal accept applicant detained military claimed tribunal also satisfied applicant detained second occasion similar reason tribunal consider plausible would know carrying item applicant provide date detention received statement purportedly made police station tribunal note statement obtained applicant arrived australia seem report police tribunal view substantiate claim applicant longer travelling east considering reasonably foreseeable future mean real chance experience detention future police course transporting good government rebel held area tribunal accept applicant support would suspected supporting ltte firstly case supporter ltte secondly family part sinhalese majority sri lanka residence colombo many year claimed move address ltte located however evidence accepted ltte know address circumstance evidence moved ltte located plausible tribunal accept ltte sought colombo interest given tribunal satisfied detention military journey east tribunal also satisfied political opinion support ltte imputed result tribunal satisfied applicant risk government authority sri lanka lived house close government house restricted area plausible pressure would applied sell operative ltte also maintained another place colombo employment colombo working even view evidence favourable applicant date departure tribunal see reason would suspected involvement sympathy ltte tribunal also accept applicant detained one day bomb blast tribunal consider plausible authority would interest questioning bomb blast light sinhalese ethnicity lack involvement ltte may reported incident sinhalese helping ltte applicant referred former president premadasa providing ltte weapon enclosed recent newspaper cutting report commission inquiry context far removed applicant situation tribunal consider information indicates applicant would imputed sort involvement ltte department foreign affair trade cable cl38234 neither contact heard recent plausible report sinhalese suspected sympathising ltte may well case sinhalese people financial gain given assistance ltte eg selling arm contact unable recall recent example one report individual connected recent ltte attack colombo appeared sinhalese nothing said many contact seemed regard question almost amusement suggested sinhalese caught assisting ltte whether sympathy financial gain would treated way tamil prosecuted prevention terrorism act information satisfied tribunal would imputed support ltte real chance risk authority applicant claim ltte sought colombo tribunal consider plausible ltte would tribunal satisfied relation ltte applicant protection authority colombo result tribunal find real chance applicant face persecution convention reason return colombo reaching conclusion tribunal taken account report foundation whilst tribunal accepts applicant exhibit symptom behaviour described tribunal task determine whether applicant well founded fear persecution convention reason despite symptom tribunal satisfied applicant whilst may genuine fear returning face real chance persecution return colombo result tribunal find applicant well founded fear persecution convention reason conclusionhaving considered evidence whole tribunal satisfied applicant person australia protection obligation refugee convention amended refugee protocol therefore applicant satisfy criterion set 36 2 act protection visa decisionthe tribunal affirms decision grant protection visa
Directed Electronics OE Pty Ltd v OE Solutions Pty Ltd (No 4) [2019] FCA 453 (2 April 2019).txt	directed electronics oe pty ltd v oe solution pty ltd 4 2019 fca 453 2 april 2019 last updated 4 april 2019federal court australiadirected electronics oe pty ltd v oe solution pty ltd 4 2019 fca 453file number vid 1157 2017judge callaghan jdate judgment 2 april 2019legislation federal court australia act 1976 cth case cited idenix pharmaceutical llc v gilead science pty ltd 2 2018 fcafc 7plaintiff m76 2013 v minister immigration multicultural affair citizenship 2013 hca 53 2013 251 clr 322specsavers pty ltd v optical superstore pty ltd 4 2012 fca 652date hearing papersdate last submission 18 march 2019registry victoriadivision general divisionnational practice area commercial corporationssub area commercial contract banking finance insurancecategory catchwordsnumber paragraph 27counsel applicant first cross defendant mr w wise qc m n j hickeysolicitor applicant first cross defendant k l gatescounsel first sixth respondent cross claimant dr b mcnicol qc mr n mcrobertsolicitor first sixth respondent cross claimant norton rose fulbrightcounsel second eighth respondent mr osborne qc mr p warnersolicitor second eighth respondent mill oakleycounsel seventh respondent dr w rothniesolicitor seventh respondent hall wilcoxordersvid 1157 2017between directed electronics oe pty ltdapplicantand oe solution pty ltdfirst respondenthanhwa au pty ltdsecond respondenthan hwa hightech australia pty ltd others named schedule third respondentand johnny menesescross claimantand directed electronics oe pty ltd others named schedule first cross defendantjudge callaghan jdate order 2 april 2019the court order first second sixth eighth respondent pay cost applicant respect application applicant seventh respondent bear cost application note entry order dealt inrule 39 32of thefederal court rule 2011 reason judgmento callaghan j 6 march 2019 delivered reason made order refuse privilege claim second eighth respondent thelee party orhanhwa party first sixth respondent themeneses party respect certain document applicant directed sought inspection directed electronics oe pty ltd v oe solution pty ltd 3 2019 fca 285 theprivilege decision reason read privilege decision party invited make submission cost party filed written submission deal matter paper finding privilege decisionthe meneses party resisted inspection directed 111 document claimed subject privilege self incrimination 3031 document claimed subject privilege exposure civil penalty mr meneses sole director employee first respondent lee party resisted inspection certain document directed basis 39 document subject privilege self incrimination opposed directed application substantially reason meneses party seventh respondent mr mill resisted inspection directed document exhibited confidential affidavit basis document subject privilege ultimately resist production provided court caused certificate granted unders 128a 7 theevidence act 1995 cth theevidence act considered following question gave following answer 1 whether party claiming privilege demonstrated relevant document properly document relevant individual corporation answer case meneses party b case lee party c case mr mill question arise 2 whether person single director company employee could claim privilege self incrimination respect document belonging company notwithstandings 187of theevidence act answer exception tos 187should recognised 3 whether evidence enabled court determine document seized independently discovered answer yes 4 whether different legal principle applied two category document answer unnecessary decide 5 respect document seized search whether mr mill could rely provision ofs 128aof theevidence act b whether common law lee party meneses party elected file affidavit provision ofs128aof theevidence act could rely upon privilege common law principle applied answer mr mill granted certificate unders 128a 7 theevidence act b unnecessary decide 6 whether relevant document real appreciable tendency incriminate messrs meneses mill lee criminal offence expose civil penalty answer yes cost principlesthe awarding cost course discretion court may awarded respect different part proceeding specified proportion 43of thefederal court australia act 1976 cth usually exercise discretion ordered cost follow event seeplaintiff m76 2013 v minister immigration multicultural affair citizenship 2013 hca 53 2013 251 clr 322at 241 andidenix pharmaceutical llc v gilead science pty ltd 2 2018 fcafc 7at 3 court must use discretion way best promotes overarching purpose civil procedure provision fca act rule seespecsavers pty ltd v optical superstore pty ltd 4 2012 fca 652at 25 case event may contestable especially separate issue fallen different way plaintiff m76 2013 v minister immigration multicultural affair citizenship 2013 hca 53 2013 251 clr 322at 241 party submissionsmeneses partiesthe meneses party submit pay directed cost incidental application date hearing 26 october 2018 directed pay meneses party cost incidental application accrued date citingidenix pharmaceutical llc v gilead science pty ltd 2 2018 fcafc 7at 3 section 43of thefederal court australia act 1976 cth give court wide discretion awarding cost exercise court discretion without principle practice must exercised judicially le laboratoires servier vapotex pty ltd 2016 fcafc 27 2016 247 fcr 61at 305 per bennett besanko beach jj ordinary rule cost follow event although successful party may awarded le cost cost may apportioned based upon success issue firebird global master fund ii ltd v republic nauru 2 2015 327 alr 192 2015 hca 53at 6 per french cj kiefel nettle gordon jj le laboratoires servierat 297 298 303 meneses party submit prior october 2018 directed primary case privilege self incrimination privilege self exposure civil penalty could claimed respect pre existing document also submit directed raised new ground hearing 26 october 2018 increased jeopardy submission full scope ground later abandoned directed shifted position 11 december 2018 hearing u ntil directed seriously contended meneses party failed establish real appreciable risk required make good mr meneses claim privilege thus meneses party submit g iven number discrete issue raised directed oe subject expansive submission written oral given fact one issue raised approximately year worth submission successful directed oe cost relate success one discrete issue lee partiesthe lee party submit directed cost cost cause lee party respect claim relief arising allegation made part b section h amended statement claim dated 22 november 2018 secret commission claim alternatively b discounted directed recover 50 cost privilege decision whatever outcome trial primary contention privilege decision inextricably linked secret commission claim subject primary proceeding matter beach j directed cost privilege decision abide outcome secret commission claim lee party also submit multiple day privilege dispute took place part result directed repeatedly changing position advancing much argument meneses party respect concluding entirely conceivable privilege dispute could disposed 2 day instead 4 adopting crude likely accurate calibration approximately half volume written submission would required prepared drawn submit take account complexity privilege dispute lack binding precedent fact authority supporting position form ofin matter kala capital 2 2012 nswsc 1293relied upon directed relied upon respondent includingdevine marine group v fair work ombudsman 2013 fca 442 meaning necessary court essentially determine side argument circumstance fell mr millsmr mill seek cost incidental determination objection production document ground privilege arising order made beach j 19 february 2018 submits seeking indulgence court exercise discretion favour contrary claim privilege exercise substantive right reid v howard 1995 184 clr 11 11 toohey gaudron mchugh gummow jj relation privilege self incrimination submits privilege claim vigorously opposed applicant last day hearing requiring attendance court four day several month detailed written submission fully vindicated privilege decision ordinary rule cost follow event appropriate also say applicant opposed claim protection privilege point last day hearing including basis apply thing seized execution search order real appreciable risk prosecution civil penalty provision imposed mr mill directedas meneses party lee party directed submits wholly successful special circumstance justify deviating usual rule citingruddock v vadarlis 2 2001 115 fcr 229at 11 oshlack v richmond river council 1998 hca 11 1998 193 clr 72at 97 mchugh j 120 123 kirby j seven network ltd v news ltd 2009 fcafc 166 2009 182 fcr 160at 403 state victoria v sportsbet pty ltd 2 2012 fcafc 174at 6 7 andgondarra v minister family housing community service indigenous affair 2014 fca 139at 6 submits respondent resisted inspection basis privilege chose rely common law right bore onus make claim failed discharge directed also submits informed meneses party corporation could claim privilege letter dated 16 november 2017 meneses party first written submission dated 19 december 2017 made available lee party recognised centrality corporation issue note lee party failed sole director argument produced sealed affidavit attempt identify document corporation individual end third day response meneses party submission directed recover cost issue ultimately succeeded directed submits general rule party single cause action seek single outcome obligation bring forward alternative argument proposition might yield success successful party regarded succeeded thus entitled cost citinggg v australian crime commission 2 2010 fcafc 63at 5 per downes jessup tracey jj directed also submits justice may served party dissuaded canvassing issue might material decision case risk adverse cost order citingdodds family investment pty ltd formerly solar tint pty ltd v lane industry pty ltd 1993 fca 259 1993 26 ipr 261at 271 28 per gummow french hill jj lee party submission directed cost linked cost secret commission claim directed submits among thing submission also ignores relevant event lee party assertion privilege mr mill directed submits mr mill followed procedure set in 128aof theevidence act primary position rely position common law directed submits changed position last hearing day became apparent common law privilege position might fail directed also claim never resisted providing certificate mr mill provided court satisfied evidence made ground directed submits mr mill attempt prevent directed inspecting relevant document failed consequently pay directed cost considerationin view meneses lee party directed cost application onus party claiming privilege make good claim reason gave satisfy demonstrated relevant document document relevant individual always necessary done circumstance directed necessarily could never known whether done fact directed may seen given emphasis submission time time protracted hearing seems beside point view directed wholly successful respect meneses party special circumstance justify deviating usual rule reason accept lee party submission directed cost cost cause lee party respect secret commission claim discounted directed recover 50 cost privilege decision whatever outcome trial fact matter view took privilege claim failed position mr mill different merit respective contention mr mill directed make one hand case mr mill sought rely common law adopted submission made respondent regard true fourth day counsel mr mill made clear client fact objection directed inspecting document provided given certificate unders 128a hand mr mill successful obtaining order sought unders 128a balance view fairest result circumstance mr mill directed bear cost relation mr mill claim privilege certify preceding twenty seven 27 numbered paragraph true copy reason judgment herein honourable justice callaghan associate dated 2 april 2019schedule partiesvid 1157 2017respondentsfourth respondent leemen au pty ltdfifth respondent hanhwa hightech co ltdsixth respondent johnny menesesseventh respondent craig millseighth respondent kichang ryan leetenth respondent gridtraq australia pty ltdeleventh respondent webhouse software solution pty ltdtwelfth respondent leemen co ltdthirteenth respondent quantum telematics pty ltdcross defendantssecond cross defendantstavros siolisthird cross defendantanthony tselepis
Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 (1 March 2002).txt	kakar minister immigration multicultural affair 2002 aata 132 1 march 2002 last updated 6 march 2002decision reason decision 2002 aata 132administrative appeal tribunal w2000 450general administrative division farid ahmad kakarapplicantand minister immigration multicultural affairsrespondentdecisiontribunalthe hon c r wright qc deputy president date1 march 2002placeperthdecisionthe decision review affirmed application citizenship reconsidered 23 june 2003 sgd deputy presidentcatchwordsimmigration australian citizenship good character application male afghan national convicted causing grievous bodily harm australian citizenship act 1948 s13 1 f reason decision1 march 2002 hon c r wright qc deputy president 1 applicant entered australia permanent resident 22 february 1994 applied australian citizenship 9 october 1996 application approved 13 november 1996 applicant sentenced 18 month imprisonment grievous bodily harm 8 november 1996 received awarning liability section 200 migration acton 6 may 1997 applicant released parole 8 may 1997 6 november 1997 approval citizenship application revoked 2 january 1998 applicant advised letter dated 28 january 1998 would eligible apply citizenship 8 may 1999 application lodged 6 may 1999 refused 15 december 1999 2 applicant lodged application 20 december 1999 refused 1 november 2000 applicant asks tribunal review decision 3 section 13 1 f theaustralian citizenship act 1948requires applicant citizenship must satisfy minister good character policy guideline assist assessment contained citizenship instruction clause 4 8 15 following 4 applicant born kabul afghanistan 18 december 1965 presently aged 36 year life perth western australia wife child elderly mother 5 8 november 1996 applicant appeared district court western australia sadlier dcj charged upon indictment 23 june 1996 ballajura unlawfully grievous bodily harm susan kakar entered plea guilty represented legal counsel 6 counsel prosecution m boyatzis stated following fact court honour fact follows case complainant 23 year old female niece prisoner person afghanistan refugee arrived australia 3 year ago evening saturday 22 june 1996 complainant mother prisoner sister travelled public transport visit prisoner family home ballajura complainant visited uncle 3 year old daughter ill arrived home 8 00 evening evening conversation took place native afghanistan language dardic watching video depicting people dancing conversation commenced complainant dancing nightclub prisoner began insult complainant calling prostitute australian boyfriend complainant practising muslim insult instructed accused thing prisoner well aware complainant mother decided leave prisoner stated would give lift vehicle complainant refused frightened prisoner believed left house would assaulted decided stay longer prisoner became angry continued insult complainant prisoner told wanted hit hit home complainant state religion strike someone home complainant became scared prisoner mother decided leave house point time 3 next morning complainant mother walked prisoner home rosella court short distance away prisoner followed vehicle continued shout insult complainant telling get car stopped vehicle approached complainant grabbed hold hair left hand punched right eye punched nose complainant immediately felt pain right eye began water profusely prisoner punched complainant back head continued abuse insult managed break free run away felt something hit back saw accused thrown one slipper also throwing rock ran complainant mother ran waved passing taxi police subsequently contacted complainant attended qeii hospital treatment hospitalised date 5 july 1996 suffered well eye injury bruising swelling nose yesterday instructed police eyesight still blurred due reassessed 19 november 1996 25 june 1996 prisoner interviewed detective assistance interpreter interviewed video denied assaulted complainant admitted telling leave house pushed door denied following car say punch complainant arrested charged 7 discussion counsel judge emerged complainant 50 sight injured eye practical purpose blind eye suggested may future improvement expected 8 plea mitigation behalf client counsel applicant said honour client 31 year age born kabul afghanistan three brother three sister one sister delbar mother complainant susan kakar russian invaded afghanistan 1978 13 year old part family moved pakistan time stayed finish education afghanistan became graduate biology teacher rather work regime afghanistan also left went pakistan 1989 worked united nation immunisation program mostly among afghan refugee also among local population married 1992 two child pakistan wife also afghanistan high school teacher two child 5 3 3 year old hospital prior incident client helped supported sister delbar various way number year still afghanistan widowed late husband family wanted marry another member family wish mr delbar kakar client brother removed afghanistan pakistan pakistan client joined employment supported sister member family paid wedding eldest son hamid came australia refugee family came one one farid kakar best employment pakistan stayed rest family left last one fact mr delbar kakar child including complainant prisoner pakistan time paid new clothes delbar family gave 1000 cash help resettle australia hired mini van take airport 1994 prisoner came mother wife child australia three brother two sister family perth course close knit unit perth prisoner continued help delbar particular widowed one particular car acted taxi family worked hard learn english learning new skill month prior incident working job skill program hand reference briefly incident little girl hospital 2 week serious lung problem working day staying hospital evening wife stay home look elderly grandmother younger child agree saturday 22ndthe complainant mother came prisoner house 8 00 evening still 3 clock following morning obviously argument sound statement fact shall say islamic thing client want stress way islamic fundamentalist fact refugee system mr kakar family wear example western clothes concerned niece considering kind position parent girl family matter taken come court pleaded guilty first opportunity soon medical report desperately upset sorry happened situation believe man tired snapped stupid senseless argument one punch admittedly number blow one particular punch damaged part girl eye passing sentence sadlier dcj said farid kakar would stand fact offence fully stated said prosecutor counsel mr glenn complainant susan mother house argument developed argument began insulting susan called prostitute used insult mother left house early morning followed car continued shout insult got attacked susan took hair punched area right eye punched nose back head violent blow broke free ran away threw object left mother make way back home injury suffered described well aware damage inflicted interview police said told susan mother leave house various reason denied followed acted way admit video interview give appearance arrogant indifferent injury complainant behaviour accept mr glenn said aware time extent injury accept repentant must take account favour also testimonial character evidence show highly regarded work state course intelligent man past close protective role relation complainant mother also experienced difficult background trauma deprivation original home country particular night sort fixation complex behaviour niece member family worked state anger control inflicted brutal blow niece serious consequence impact statement describes continued painful state suffers depression fear losing sight fear considered alternative imprisonment cannot regard anything serious offence violence need punishment general deterrence appreciate concern live injury caused normal way would sentence imprisonment term 3 year reason early plea guilty matter favour sentenced term imprisonment 18 month direct eligible parole stand 9 review proceeding tribunal 9 october 2001 applicant gave sworn evidence cross examined counsel respondent 10 said time assault upon niece believed disrespectful mother acted contrary afghan cultural tenet said realised conduct unacceptable australian cultural standard also said made special effort since imprisonment understand conform australian behavioural norm unfortunately gained clear impression applicant giving lip service thing believed tribunal would need hear satisfied violent behaviour niece character changed man clear several response made question counsel respondent prepared attempt justify violent behaviour blame niece mother punishment consequent feeling shame several point seemed suggesting instrumental causing injury niece loss sight right eye placed pressure counsel prepared resile stance mean persuaded outlook towards woman implied right assert power undergone significant change since 1996 insofar claim contrary think frank best self deluded 11 coming conclusion overlooked many written reference speaking highly applicant referred hearing asserted act violence completely character applicant whilst questioning particular conclusion thought discard valuable information contained reference clearly show applicant active community work assisting people disability attempting educational channel bridge cultural gap afghani member australian community role secretary afghan social council inc 12 applicant currently employed office cleaning company perth regarded proprietor conscientious caring trustworthy reliable employee similar opinion expressed number prominent member community theme throughout reference helpful caring even tempered quality augur well capacity avoid violence future develop level maturity present 1996 read considered material provided applicant exhibit a3 also considered sworn evidence given dr john crouch 13 good character within meaning legislation refers enduring moral quality person assessed involves comparison attribute reasonable ordinary standard behaviour social conduct found within australian community present context word lee j inirving v minister immigration 1996 68 fcr 422 431 432 particular relevance honour said unless term act regulation require meaning applied word good character taken used ordinary sense namely reference enduring moral quality person good standing fame repute person community former objective assessment apt proved fact whilst latter review subjective public opinion see clearihan v registrar motor vehicle dealer act 1994 117 fcr 455at 459 460 per mile cj plato film ltd v speidel 1961 ac 1090at 1128 1129 per lord radcliff lord denning 1138 person convicted serious crime thereafter held contempt community nonetheless may show reformed good character see davis 1947 hca 53 1947 75 clr 409at 416 per latham cj clearihan 461 per mile cj conversely person good repute may shown objective assessment person bad character 14 criminal offence committed applicant obviously taken account extent existence criminal conduct weigh scale finding good character depend upon many thing including seriousness crime length time since commission degree rehabilitation offender 15 offence inflicting grievous bodily harm serious one indeed transcends assault wounding hierarchy crime person nearly always result substantial gaol sentence indeed occasion 16 applicant character assessed potential criminal deportee case factor would need considered simple question whether character accorded privilege australian citizenship 17 opinion cloud cast character beating administered niece still lingers despite many positive step taken towards redemption view sufficient time yet passed enable satisfied applicant person good character 18 opinion decision review affirmed application citizenship deferred reconsideration least 23 june 2003 certify 18 preceding paragraph true copy reason decision herein hon c r wright qc deputy president signed k l miller personal assistant date hearing 9 october 2001date decision 1 march 2002representative applicant m jane saunderscounsel respondent mr ari jenshellsolicitor respondent aust government solicitor
Jacobs v Mornington Peninsula SC [2006] VCAT 1555 (1 August 2006).txt	jacob v mornington peninsula sc 2006 vcat 1555 1 august 2006 last updated 8 august 2006victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference p652 2006permit application 03 0425catchwordssection 87 amendment retrospective permit closer setback sought minimum setback ddo varied first instance objective trigger consideration responsive design established streetscape development pattern visual intrusiveness applicantmatthew douglas jacobsresponsible authoritymornington peninsula shire councilsubject land10 hurley street balnarringwhere heldmelbournebeforejohn quirk memberhearing typehearingdate hearing28 july 2006date order1 august 2006citationjacobs v mornington peninsula sc 2006 vcat 1555order1 decision tribunal permit 03 0425 issued carport associated work 10 hurley street balnarring amended condition 1 deletion number 6 05 first line replacement 3 80 condition 1 b deleted 2 responsible authority issue amended permit accordance order j quirkmemberappearancesfor applicantmr matthew douglas jacob person responsible authorityms susanna mccready assisted m emma wakefield town planner reasons1 29 january 2004 relation application review p2424 2003 issued permit set aside council refusal grant retrospective permit carport 10 hurley street balnarring subject condition first two bay removed existing building order provide setback street boundary 6 05 metre decision still allowed applicant reasonable sized double carport front existing dwelling march 2006 applicant requested extension time responsible authority granted allowing commencement development 6 february 2007 2 applicant 14 september 2005 made application retrospective permit reduce front setback 3 8 metre refused responsible authority later application review made withdrawn applicant relying 87 amendment application 3 existing condition much described previous decision exception carport shed constructed without permit 12 hurley street next door demolished following order council proposal4 develop carport setback 3 8 metre frontage essentially existing situation mean reduction one bay two previously approved january 2004 5 land zoned residential 1 permit required dwelling ancillary building covered design development overlay schedule 3 coast landscape design permit required outbuilding set back le 7 5 metre road frontage ddo objective include ensuring design subdivision housing responds environment landform site character coastal village etc ensuring proper regard established streetscape ensuring building visually unobtrusive relation tree canopy line 6 environmental significant overlay schedule 28 mornington peninsula bushland also applies proposal meet requirement also vegetation protection overlay schedule 1 township vegetation applicable vegetation remove therefore applicable 7 responsible authority consideration still used ddo setback 7 5 metre trigger also considered constraint subject site site nearby concluded 3 8 metre setback meet objective ddo would dominant street frontage consequently streetscape 8 consideration matter acknowledge well presented case m mccready based council interpretation policy wish unacceptable precedence set within development coastal town village also acknowledge previously considered issue mr jacob attempted obtain permit carport already built major justification carport area setback le mr jacob unaware fact carport 12 hurley street relied deemed illegal therefore faced demolition may case time certain attempt made set carport back one bay approximately 2 9 metre plus existing setback previous determination paragraph 6 asked question position suitable one carport street setback proposal designed respectful neighbourhood character proposal cause unreasonable impact amenity due overlooking overshadowing traffic parking 9 stated reached decision regarding resultant building adequate double carport something synonymous many residential development area 10 seems mr jacob need greater roofed area two vehicle plus work trailer boat one major reason seems area heavily treed pine tree drop copious amount pine needle litter roof car left open chemical pine needle destructive affect vehicle paint one major reason considers important cover vehicle land 11 vegetation protection overlay would seem would little hope major removal pine tree situated close boundary neighbouring property 12 revisiting previous reason considering oral submission put forward mr jacob large number photograph tabled m mccready mr jacob believe logical take new look whole situation 13 principle tribunal application retrospective permit dealt development use site present time therefore ask would grant permit carport set back 3 8 metre frontage new application new photograph tabled assisted new approach accept mr jacob submission carport 3 8 metre setback impact streetscape 6 05 metre setback argued would case one approached either side property council photograph mr jacob clearly indicated 14 think reasonable protect vehicle damage vegetation suppose unusual often tribunal asked protect vegetation intrusion urban development 15 considered issue merit also whether respect objective ddo reached different conclusion previous one say proposal responsive environment site condition character immediate area proper regard established streetscape term height scale siting importantly sited visually obtrusive relation canopy line viewed surrounding street property 16 therefore prepare amend previous decision unders 87of theplanning environment act 1987to reduce setback proposed carport 6 05 metre 3 8 metre site boundary hurley street j quirkmember
Wilson v Deputy Commissioner of Taxation [2003] HCATrans 403 (3 October 2003).txt	wilson v deputy commissioner taxation 2003 hcatrans 403 3 october 2003 wilson v deputy commissioner taxation 2003 hcatrans 403 3 october 2003 last updated 17 october 2003 2003 hcatrans 403in high court australiaoffice registrysydney s368 2002b e w e e n john wilsonapplicantanddeputy commissioner taxationrespondentapplication special leave appealkirby jheydon jtranscript proceedingsat sydney friday 3 october 2003 12 40 pmcopyright high court australiamr j wilsonappeared person mr p rodionoff may please court appear respondent instructed australian government solicitor kirby j yes thank mr wilson proceeding start must establish jurisdiction court two people two men authority conduct hearing court appointment governor general invalid kirby j yes saw submission take reject submission proceed mr wilson like fact court place truth must told truth whole truth nothing truth cannot dismiss fact kirby j yes seen written submission point press release mr wilson going court kirby j take considered matter think proceed matter substance mr wilson discussed court discus court kirby j discus court insofar observe proper courtesy put argument substance mr wilson good argument fact email privy council saying kirby j yes set written submission mr wilson yes read go transcript made inquiry privy council said 1 september 2003 dear sir australian governor general sir ninian stephen 1982 1989 william hayden 1989 1996 sir william deane 1996 2001 dr peter hollingworth 2001 2003 please tell order approved council made appointing australian governor general one date order made reply back saying sorry order appointment mean queen council appointed governor general must theconstitution part submission article put theconstitution saying united kingdom parliament act constitute commonwealth australia 1900 governor general appointed queen clearly queen council appointed governor general commonwealth australia theconstitutionalso say kirby j majesty appointed successive governor general pursuant australianconstitutionin capacity queen australia capacity queen united kingdom mr wilson queen australia queen united kingdom power given australian parliament strip majesty title style title act 1973 null void act strip title kirby j appears little remote matter come argue mr wilson trying divide monarchy cannot done queen queen queen united kingdom every second every day queen united kingdom appointed governor general australia required theconstitution theconstitution chapter iii section 72 say kirby j got order concerning unpaid tax would appropriate u concentrate order mr wilson cannot concentrate anything authority matter must dealt way possible trial jury kirby j seen written submission mr wilson seen submission overrule proceed deal matter mr wilson authority overrule anything kirby j yes well say deal matter u argument put mr wilson well matter u whether jurisdiction mr heydon kirby j yes know say mr wilson jurisdiction deal appointment invalid kirby j note submission proceed matter substance judgment concerning unpaid tax mr wilson cannot even rule authority rule matter must dealt jury kirby j yes thank mr wilson mr wilson jurisdiction court must determined special jury kirby j note say mr wilson even get matter taxation clearly jurisdiction court must established clear correspondence submitted court prof beyond shadow doubt judge high court legitimate judge high court appointment invalid tried file affidavit support application quo warranto deputy registrar refused accept passed onto another judge determine whether could filed told cannot judge would judging cause natural justice beside valid judge anyway appointment legitimate keep going around circle kirby j indeed mr wilson cannot get away fact must competent independent impartial tribunal established law court constituted judge called appointed head state court tribunal established law appointment invalid even get matter rejected right trial jury get tribunal determine matter kirby j think raised matter court least two previous occasion case ofwilson v prothonotaryon 16 april 1999 andwilson v state new south waleson 23 november 2001 correct mr wilson past seven year denied trial jury 11 separate occasion judge kirby j yes mr wilson none judge authority take away right material put court day ago copy submission put human right commission geneva detail incident denied right kirby j right thedistrict court actto summon jury jury summoned time time court sat appeal district court jury determined matter jury available understand interlocutory proceeding proceeding judge delaney summary judgment entered interlocutory proceeding mr wilson matter try split hair come fact kirby j trying split hair trying apply law mr wilson law australian citizen entitled trial jury action kirby j law country mr wilson law thesupreme court act1899 1900 kirby j got proceeding district court mr wilson mr wilson matter right kirby j governed thedistrict court actand rule made act mr wilson court place justice administered kirby j might hope administer according law mr wilson kirby j hope determined according law mr wilson justice number one protection right punishment wrong disagree kirby j answer question answer mine mr wilson yes reason kirby j determine application mr wilson fact got right anyway entitled would answer question trial question answer kirby j question bench answer bar table mr wilson fact denied kirby j might speak microphone would come centre mr wilson speaking loud fact denied inalienable constitutional inherited right trial jury fundamental vital kirby j imagine gone judge delaney said substantive matter wish summon jury factual question decided ask issued requisition jury might basis honour might adjourned proceeding ordered substance issue fact determined jury done district court understand seek mr wilson yes kirby j file requisition jury mr wilson record fact scheduled jury last hearing mr delaney noticeboard outside printed jury got court agitated cranky whatever would allow jury maintained constituted court said constitute court light recent revelation privy council even judge judge kirby j yes said moved mr wilson truth kirby j water flown bridge little bit river mr wilson cannot get bridge put first step along bridge kirby j yes well noted mr wilson jurisdiction deal matter previous case morning last umpteen year talking people tennis last night said previous case said kirby j tennis last night got case high court australia today mr wilson fact jurisdiction question question proven jurisdiction even get onto matter substance taxation got establish boundary guideline parameter constitutes competent independent impartial tribunal established law international law correspondence privy council say order appointment governor general theconstitutionsays justice high court court created theconstitution judge appointed governor general council well governor general council fraud appointed queen therefore court authority even listen let alone make ruling substance matter kirby j finished submission mr wilson go year yet kirby j mr rodionoff help power thedistrict court actand rule mr wilson excuse mr kirby intend hear matter kirby j indeed sit please take place mr wilson well jurisdiction kirby j opportunity sit please mr wilson established fact jurisdiction kirby j take place please finished submission sat concluded mr wilson submission statement fact kirby j well mr wilson jurisdiction kirby j sit please mr wilson mr wilson appointment invalid kirby j made submission heard thank much mr wilson cannot even decide judging cause kirby j yes sit please sit removed sit mr wilson cannot determine issue matter kirby j sit please mr wilson mr rodionoff position far summoning jury case come centre please come microphone would mr rodionoff yes thank honour honour power thedistrict court actfor summoning jury done within kirby j mr wilson summon jury trial contested issue fact district court mr rodionoff honour put application time rule kirby j application extend time summon jury mr rodionoff aware honour kirby j footing judge delaney proceeded deal matter judge sitting alone mr rodionoff well one matter honour matter course honour pointed interlocutory matter thedistrict court act could specifically refer honour section 11 thedistrict court actand extract appears authority kirby j yes tab 3 mr rodionoff behind tab 3 yes honour honour see civil criminal proceeding court business arising proceeding shall subject act thejury act1977
1112017 [2012] MRTA 2291 (13 August 2012).txt	1112017 2012 mrta 2291 13 august 2012 last updated 29 august 20121112017 2012 mrta 2291 13 august 2012 decision recordapplicant mr prashant miglanimrt case number 1112017diac reference bcc2010 354451tribunal member david b mitchelldate 13 august 2012place decision melbournedecision tribunal remit application skilled provisional class vc visa reconsideration direction applicant meet following criterion subclass 485 skilled graduate visa cl 485 215 schedule 2 regulation andcl 485 221 schedule 2 regulation statement decision reasonsapplication reviewthis application review decision made delegate minister immigration citizenship delegate refuse grant applicant skilled provisional class vc visa unders 65of themigration act 1958 act applicant applied department immigration citizenship department visa 31 august 2010 delegate decided refuse grant visa 8 november 2011 delegate refused visa basis applicant satisfy cl 485 215 inpart 485of schedule 2 themigration regulation 1994 regulation competent english defined r 1 15c regulation ground refusal applicant satisfy cl 485 221 provide evidence skill nominated skilled occupation assessed relevant assessing authority suitable occupation applicant applied tribunal 11 november 2011 review delegate decision relevant lawthe skilled provisional class vc visa permit graduate australian educational institution people held certain temporary skilled visa reside australia temporarily order obtain skill qualification required permanent general skilled migration visa time visa application lodged skilled provisional class vc visa class contained following subclass subclass 485 skilled graduate subclass 487 skilled regional sponsored present case applicant seeking satisfy criterion grant subclass 485 visa criterion issuethe criterion subclass 485 visa set inpart 485of schedule 2 regulation relevantly matter primary criterion met time application cl 485 215 primary criterion met time decision cl 485 221 clause 485 215clause 485 215 requires applicant competent english defined term competent english defined r 1 15c regulation person competent english r 1 15c person satisfies minister person achieved test conducted 2 year day application lodged ielts test score least 6 4 test component speaking reading writing listening ii score specified minister instrument writing sub subparagraph b language test specified minister instrument b hold passport type specified minister instrument writing paragraph purpose r 1 15c ii minister specified score least b occupation english language test oelt r 1 15c b passport issued united kingdom united state america canada new zealand ireland legislative instrument immi 09 073 clause 485 221clause 485 221 requires applicant skill assessed suitable nominated skilled occupation assessment basis qualification obtained australia applicant holder student visa qualification must obtained result studying registered course defined term skilled occupation meaning given r 1 15i regulation r 1 03 occupation skilled occupation specified minister instrument writing skilled occupation number point specified instrument available number point available applicable person accordance specification occupation relevant instrument purpose legislative instrument immi 12 068 relevant assessing authority mean person body specified r 2 26b regulation r 1 03 regulation 2 26bprovides minister may specify instrument writing person body relevant assessing authority skilled occupation b one country purpose application skill assessment made resident one country relevant instrument purpose legislative instrument immi 12 068 regulation 1 03defines registered course course education training provided institution body person registered undersection 9of theeducation service overseas student act 2000 esos act provide course overseas student current list registered course appears commonwealth register institution course overseas student cricos kept section 10 esos act claim evidencethe tribunal department file relating applicant tribunal also regard material referred delegate decision material available range source applicant represented relation review registered migration agent material tribunal may summarized relevantly follows applicant migration historythe applicant aged 26 year time tribunal review male national india first arrived australia 28 july 2008 holder student temporary class tu visa subclass 573 valid stay 30 september 2010 visa application reviewthe applicant lodged visa application department internet application 31 august 2010 application applicant nominated skilled occupation management consultant australian new zealand standard classification occupation anzsco code 224711 vocation education training assessment service vetassess relevant assessing authority applicant stated application undertaken ielts test 17 july 2010 applied vetassess 28 august 2010 skill assessment 1 september 2010 department sent email applicant stating need provide department within 28 day specified document including ielts english test report result satisfactory skill assessment nominated occupation applicant failed provide requested document delegate refused application 8 november 2011 basis applicant satisfy cl 485 215 time application cl 485 221 time delegate decision application reviewthe applicant applied tribunal 11 november 2011 review delegate decision 1 december 2011 tribunal received certified copy following document migration agent representing applicant ielts test report form test undertaken applicant 17 july 2010 showing following result listening 7 5 reading 7 0 writing 7 5 speaking 7 5 qualification assessment skilled graduate temporary visa subclass 485 applicant issued vetassess 29 october 2010 stating applicant master business international business completed 2010 swinburne university technology victoria meet educational requirement nominated occupation management consultant anzsco code 224711 migration purpose completed one year employment appropriate skill level field closely related nominated occupation eligible apply vetassess full skill assessment support application permanent residency andthe bio page applicant indian passport application review constituted presiding member 6 june 2012 tribunal verified ielts australia result ielts test applicant undertook 17 july 2010 27 july 2012 tribunal invited applicant 359 2 act provide following information evidence master business international business completed swinburne university technology victoria referred skill assessment issued vetassess 29 october 2010 obtained result studying registered course required cl 485 221 2 schedule 2 themigration regulation 1994 could include example certified copy degree certificate academic transcript letter completion showing date commencement completion degree 7 august 2012 applicant provided tribunal certified copy following document letter completion issued director student operation university registrar swinburne university technology 23 august 2010 stating applicant completed master business international business 14 august 2010 anda result certificate issued swinburne university technology showing applicant commenced degree 2008 undertaking one subject teaching period 2008 5 2008 6 2008 7 commencing teaching period 2009 1 tribunal note neither document contains evidence degree cricos registered course tribunal researcha cricos search conducted tribunal 10 august 2012 show master business international business provided swinburne university technology registered course cricos course code 051035m reaching decision tribunal consider hearing necessary able find favour applicant basis material pursuant section 360 2 act finding reasonsthe issue present case whether applicant meet requirement cl 485 215 cl 485 221 evidence tribunal applicant nominated occupation management consultant anzsco code 224711 skilled occupation specified legislative instrument immi 12 068 occupation relevant assessing authority specified legislative instrument immi 12 068 vetassess relevant time applicant held passport india competent english cl 485 215regulation 1 03provides competent english meaning given r 1 15c unless contrary intention appears tribunal find nothing act regulation evince contrary intention considering whether applicant competent english purpose cl 485 215 tribunal find applicant hold indian passport passport specified minister relevant instrument writing purpose r 1 15c b definition competent english regulation 1 15c definition competent english requires applicant achieved score least 6 4 test component speaking reading writing listening ielts test least b 4 test component oelt conducted 2 year day visa application lodged claim evidence tribunal applicant undertaken oelt purpose r 1 15c ii tribunal find applicant meet requirement r 1 15c ii time decision ielts test applicant sat 17 july 2010 achieved test score least 6 4 test component speaking reading writing listening test conducted 2 year day application lodged 17 august 2010 tribunal find applicant meet requirement r 1 15c therefore competent english defined r 1 15c consequently tribunal find applicant satisfies cl 485 215 suitable skill assessment cl 485 221having regard successful skill assessment dated 29 october 2010 tribunal find applicant skill assessed suitable nominated skilled occupation relevant assessing authority vetassess therefore applicant satisfies requirement cl 485 221 1 according successful skill assessment dated 29 october 2010 applicant skill assessment made basis master business international business applicant completed 2010 swinburne university technology tribunal infers result certificate recently provided applicant commenced degree arriving australia july 2008 note letter completion state applicant completed degree 14 august 2010 regard applicant migration history stated tribunal find assessment made basis qualification obtained australia whilst applicant holder student visa light cricos printout applicant course tribunal find qualification obtained result studying registered course therefore applicant satisfies requirement cl 485 221 2 given finding tribunal find applicant meet requirement cl 485 221 reason given tribunal find applicant satisfies cl 485 215 cl 485 221 conclusionsgiven finding made tribunal remit matter direction applicant meet cl 485 215 cl 485 221 decisionthe tribunal remit application skilled provisional class vc visa reconsideration direction applicant meet following criterion subclass 485 skilled graduate visa cl 485 215 schedule 2 regulation andcl 485 221 schedule 2 regulation david b mitchellmember
1210877 [2012] RRTA 845 (11 September 2012).txt	1210877 2012 rrta 845 11 september 2012 last updated 8 november 20121210877 2012 rrta 845 11 september 2012 decision recordrrt case number 1210877diac reference clf2012 33363country reference iraqtribunal member giles shortdate 11 september 2012place decision sydneydecision tribunal remit matter reconsideration direction applicant satisfies paragraph 36 2 migration act statement decision reasonsapplication reviewthis review decision made delegate minister immigration citizenship date deleted unders 431 2 themigration act 1958as information may identify applicant july 2012 refusing application applicant protection class xa visa applicant immigration detention time since released notified decision cover letter dated july 2012 application review lodged tribunal date july 2012 satisfied tribunal jurisdiction review decision applicant citizen iraq arrived australia february 2012 applied protection class xa visa may 2012 relevant lawin accordance withsection 65of themigration act 1958 act minister may grant visa minister satisfied criterion prescribed visa act themigration regulation 1994 regulation satisfied criterion grant protection class xa visa set section 36 act andpart 866of schedule 2 regulation subsection 36 2 act provides 2 criterion protection visa applicant visa non citizen australia respect minister satisfied australia protection obligation refugee convention amended refugee protocol aa non citizen australia non citizen mentioned paragraph respect minister satisfied australia protection obligation minister substantial ground believing necessary foreseeable consequence non citizen removed australia receiving country real risk non citizen suffer significant harm b non citizen australia member family unit non citizen mentioned paragraph ii hold protection visa c non citizen australia member family unit non citizen mentioned paragraph aa ii hold protection visa refugee criterionsubsection 5 1 act defines refugee convention purpose act convention relating status refugee done geneva 28 july 1951 refugee protocol protocol relating status refugee done new york 31 january 1967 australia party convention protocol therefore generally speaking protection obligation person defined refugee purpose international instrument article 1a 2 convention amended protocol 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 time definition must satisfied date decision application minister immigration ethnic affair v singh 1997 72 fcr 288 definition contains four key element first applicant must outside country nationality secondly applicant must fear persecution subsection 91r 1 act state order come within definition article 1a 2 persecution person fear must involve serious harm person systematic discriminatory conduct subsection 91r 2 state serious harm includes reference following threat person life liberty b significant physical harassment person c significant physical ill treatment person significant economic hardship threatens person capacity subsist e denial access basic service denial threatens person capacity subsist f denial capacity earn livelihood kind denial threatens person capacity subsist requiring persecution must involve systematic discriminatory conduct subsection 91r 1 reflects observation made australian court effect notion persecution involves selective harassment person individual member group subjected harassment chan yee kin v minister immigration ethnic affair 1989 169 clr 379per mason cj 388 mchugh j 429 justice mchugh went observe inchan 430 necessary element concept persecution individual victim series act 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 systematic conduct used context sense methodical organised conduct rather sense conduct random deliberate premeditated intentional described selective harassment discriminates person concerned convention reason seeminister immigration multicultural affair v haji ibrahim 2000 hca 55 2000 204 clr 1at 89 100 per mchugh j dissenting ground australian court also observed order constitute persecution purpose convention threat harm person need product policy government person country nationality may enough depending circumstance government failed unable protect person question persecution per mchugh j inchanat 430 see alsoapplicant v minister immigration ethnic affair 1997 190 clr 225 per brennan cj 233 mchugh j 258 thirdly applicant must fear persecution reason race religion nationality membership particular social group political opinion subsection 91r 1 act provides article 1a 2 apply relation persecution one reason mentioned article unless reason essential significant reason reason essential significant reason persecution remembered however australian court observed person may persecuted attribute perceived opinion belief perceived hold irrespective whether actually posse attribute hold opinion belief seechanper mason cj 390 gaudron j 416 mchugh j 433 minister immigration ethnic affair v guo 1997 191 clr 559at 570 571 per brennan cj dawson toohey gaudron mchugh gummow jj fourthly applicant must well founded fear persecution one convention reason dawson j said inchanat 396 element contains subjective objective requirement must state mind fear persecuted basis well founded fear whilst must fear persecuted must mind must sufficient foundation fear fear well founded real chance person persecuted one convention reason return country nationality chanper mason cj 389 dawson j 398 toohey j 407 mchugh j 429 fear well founded sense even though possibility persecution occurring well 50 per cent fear well founded purpose convention unless evidence indicates real ground believing applicant refugee status risk persecution fear persecution well founded merely assumed mere speculation seeguo referred 572 per brennan cj dawson toohey gaudron mchugh gummow jj complementary protection criterionan applicant protection visa meet refugee criterion paragraph 36 2 act may nevertheless meet complementary protection criterion paragraph 36 2 aa act set significant harm purpose definition exhaustively defined subsection 36 2a act see subsection 5 1 act person suffer significant harm arbitrarily deprived life death penalty carried subjected torture cruel inhuman treatment punishment degrading treatment punishment expression torture cruel inhuman treatment punishment degrading treatment punishment defined subsection 5 1 act claim evidencethe tribunal department file clf2012 33363 relating applicant theapplicant appeared tribunal video conference september 2012 give evidence present argument tribunal assisted interpreter arabic english language applicant represented name firm deleted 431 2 solicitor registered migration agent representative attended hearing applicant original applicationin original application applicant said aged late twenty said lived life nasiriyah dhi qar governorate iraq apart five year spent jordan 1999 2004 said completed grade four school worked market going jordan said jordan worked builder labourer packer factory porter applicant said returned iraq 2004 unemployed year working supervisor construction manager business 2008 2010 vocation deleted 431 2 american military base nasiriyah said 2010 2011 employed delivery man shop owned one brother mr said turkey said left iraq december 2011 travelling lawfully via dubai malaysia indonesia answer question 66 onpart cof form said january 2010 january 2011 convicted four occasion alcohol related offence possession three time intoxication fined statement accompanying application applicant said feared persecuted reason political opinion returned iraq said date november 2011 group four militiaman mahdi army come home 2 00 said roof drinking recognised two men run neighbour place stayed morning said militiaman searched house looking brother mr said reason mahdi army wanted harm working american base hated people worked said regarded people traitor said police refused charge militiaman offence police said family evidence applicant said gone najaf brother lived told people could help go belgium said people warned course returned nasiriyah meet man going australia said met three people going australia december 2011 said booked ticket left date december 2011 applicant said could move elsewhere iraq needed statement local mayor permission local police station said police working hand glove militia would either able get permission would know going said connection north iraq predominantly sunni said returned iraq would killed worked american applicant evidence departmental interviewthe applicant interviewed primary decision maker relation application may 2012 applicant confirmed shia muslim confirmed lived life nasiriyah apart time spent jordan 1999 said gone jordan avoid military service support family able find work iraq said returned iraq jordan downfall regime opportunity work thing got better iraq said required undertake military service applicant confirmed employed american military base said around 15 kilometre home nasiriyah said left employment february 2010 reducing workforce started working brother business said stopped working brother shop 2010 unemployed come australia applicant said kidnapped beaten 2007 said friend drunk sitting coffee shop neighbourhood said friend escaped taken three people civilian clothes known put car said covered head sack car driven half hour said taken room removed sack started calling name said tried hit window suffered three torn ligament arm applicant said found street nasiriyah day taxi driver taken hospital said believed people taken drinking confirmed also arrested time police drinking said occasion detained overnight appear court following day confirmed fined said last occasion 2011 applicant confirmed claimed date november 2011 people mahdi army come looking brother worked american military base said thought brother turkey family told brother gone lebanon since returned iraq said brother baghdad date said point stopped working base two month october 2011 applicant confirmed recognised two people mahdi army neighbourhood said gone neighbour roof knocked door said stayed morning confirmed family gone police police refused accept complaint lack evidence applicant said day gone stay brother najaf said stayed around seven day confirmed heard someone could help go belgium said mahdi army back home nasiriyah since left said believed still looking said found would killed sure said people said way belgium dangerous go turkey greece said contacted someone arranged travel australia instead said already passport obtained april may 2011 applicant repeated mahdi army would kill returned iraq said would safe najaf break applicant said mahdi army known stopped working american base response question put representative applicant said people taken 2007 asked drinking accused akafir unbeliever infidel following islamic law applicant representative requested time make written submission submission departmental file applicant representative submission dated september 2012in submission tribunal dated september 2012 applicant representative said construction job applicant 2005 2007 involved assisting construction iraqi army facility financed usa said time first abducted people accused working american threatened injured occasion said job finished applicant business two year spent time working brother applicant representative said obtained job company working american base said applicant provided documentary evidence confirming employment least july 2010 produce evidence said job led second attempt abduct applicant late 2011 persuaded leave country said aggravating applicant situation enjoyment consumption alcohol led targeted conservative religious group applicant representative submitted applicant feared persecuted reason actual imputed political opinion supportive u force iraq imputed anti islamic religious view arising un islamic orharam forbidden behaviour submitted even dissident group formally associated mahdi army seeking impose view population southern iraq referred unhcrnote continued applicability april 2009 unhcr eligibility guideline assessing international protection need iraqi asylum seeker rather theunhcr eligibility guideline assessing international protection need asylum seeker iraqissued 31 may 2012 noting applicant fell several category people said targeted worked foreign company worked u iraqi army facility said alcohol vendor another category people said targeted could said indiscreet alcohol consumption attracting hostile attention self appointed guardian conservative islam applicant representative submitted applicant consumption alcohol brought within definition refugee conservative shia group iraq believed sale consumption alcohol washaramthey quoted two medium report referring fact nasiriyah traditionally relatively relaxed attitude alcohol stating alcohol banned although many part iraq forbidden faith therefore could sold openly also quoted excerpt undated report referring sharia court najaf paragraph amnesty international report referring christian yazidi alcohol vendor targeted reason religion applicant representative conceded applicant problem police result consumption alcohol bring within term definition refugee submitted problem mahdi army conservative religious militia roaming iraq said relocation another part iraq would solve applicant problem given iraq tribal society said b eing close one people necessary one survival refer evidence support statement also said movement one area another iraq could tracked communication tribal elder ormukhtars applicant representative submitted tribunal find applicant refugee find came within complementary protection criterion submitted applicant would tortured subjected cruel inhuman treatment punishment hand non state actor would get state protection iraq applicant evidence hearing meat beginning hearing applicant produced document photograph subsequently faxed tribunal sydney included copy pas issued applicant permitting enter air base employee company deleted 431 2 expiring july 2010 photograph applicant clothing identifying employee company together u force personnel two certificate awarded applicant brother mr business u force compliance random inspection applicant representative clarified appear applicant previously provided documentary evidence confirming employment noted applicant representative submission tribunal dated september 2012 referred earlier submission dated june 2012 applicant representative handed copy submission see folio 83 84 tribunal file quote april 2009unhcr eligibility guideline assessing international protection need iraqi asylum seekersin relation situation individual affiliated u force foreign government ngo international company also quote amnesty internationalannual report 2012in relation iraq concerning human right abuse committed armed group opposed government presence u troop refers opinion piece suggesting mahdi army dangerous al qaeda baghdad applicant confirmed lived life address nasiriyah apart five year spent jordan said oldest brother lived uae said brother mr lived nasiriyah come australia said mr arrived australia around two month previously applicant said brother name deleted 431 2 lived najaf said detail brother vocation deleted 431 2 applicant said returned jordan unemployed year worked construction company contract coalition force build detail deleted 431 2 said coalition force building school police station hospital clinic said worked company 2006 2007 said business said sold business 2008 gone work base applicant said coalition force named base detail relation base applicant employment deleted 431 2 said stopped working company brother mr needed someone help shop located inside base said shop engaged detail deleted 431 2 said also detail deleted 431 2 shop said worked brother shop approximately october 2011 referred applicant evidence date november 2011 people mahdi army come home looking brother mr applicant confirmed roof drinking said four people come known two lived one street away confirmed jumped neighbour roof said one men pointed gun mother another searched home said two stayed outside yard said mother told men brother mr baghdad said brother mr fact time said left searching home asked applicant knew people looking brother mr applicant said goal well known mahdi army always targeted people worked american force coalition force said lot people targeted killed injured nasiriyah iraq said gone police station nasiriyah next day complain refused accept complaint without evidence said following morning gone stay brother najaf applicant said brother introduced someone going belgium people warned dangerous travel turkey greece returned nasiriyah december 2011 said friend nasiriyah planning come australia said booked ticket left december 2011 asked applicant whether apart fact mahdi army always targeted people worked american force coalition force reason thought explanation people mahdi army come looking november 2011 applicant said brother seemed area left early go work sunrise come back late night dark said however brother jobless 20 day time people mahdi army come looking become obvious said known brother used work coalition force considered agent persecuted reason applicant said people known brother working coalition force seen car heading coming put applicant little difficult understand would waited base close brother given employment actually come looking brother applicant said thought mahdi army become powerful governorate comprised half city council half police force said majority people nasiriyah mahdi army asked applicant people mahdi army said anything come home looking brother applicant said said captured person punished would say done said come back looking brother date november 2011 said spy area known brother come back could come said go back see would attack said returned nasiriyah never left home said friend bought ticket left done dawn referred fact applicant said original application brother mr turkey applicant said initially stated brother turkey mother told later found brother lebanon said family telling people brother turkey lebanon noted applicant said departmental interview brother returned iraq time interview applicant confirmed correct said brother planned go country possible money said expensive paid 13 500 said brother new car sold come back iraq put car buyer name collect money leave said based information brother gone back nasiriyah transferred car baghdad asked applicant whether problem feared would returned iraq apart problem said brother mr result working american base applicant said think would problem noted applicant representative referred problem applicant alcohol applicant said incident end 2007 drinking someone said afternoon gone café close home said three people come taken car outside café said friend managed run away people taken home quite way away said asked drinking alcohol given muslim said one men pushed towards window said glass broken cut wrist glass applicant said thrown football stadium nasiriyah said taxi driver found taken hospital explained someone injured police would ask person brought injured person hospital stay case injured person died case person brought hospital would held responsible said unconscious kept taxi driver managed find happened said stayed hospital day spent 20 day bed home applicant confirmed happened drinking alcohol noted representative understood something fact working construction job coalition force applicant repeated incident friend drinking alcohol said regard involvement known working american force american supervise construction would come look go added building close city 20 minute car outside city 200 metre away main street even people driving past would able see anyone else applicant representative said took responsibility misunderstanding applicant said incident end 2007 arrested four time police alcohol related offence said islamist control iraq especially south freedom normal people said would arrest fine equivalent 200 official would guarantor said four occasion arrested drinking alcohol said arrested taken hospital test check drinking taken police station said detained overnight taken court next day said people court would say drunk pay fine 150 000 200 000 dinar equivalent 200 said sometimes would reduce fine 50 000 dinar take account fact spent night gaol applicant said sale alcohol lawful nasiriyah said known people sold alcohol bought said time drunk alcohol home friend home said would go café would smoke tobacco known assheeshausing waterpipe narghile said sitting sometimes people around would notice movement normal might smell alcohol breath sudden would find police asking id said would tell convinced drunk would ask come hospital applicant said twice arrested alcohol car said would stop find alcohol would say allowed said occasion well would kept overnight police station fined court next day response question put representative applicant said afraid working american base said cautious leaving heard example interpreter killed put bomb front home car said however livelihood applicant representative noted applicant claim always work american base drinking alcohol said cumulative addition put submission applicant said reason brother left iraq mahdi army thought agent said wanted revenge said issue always mahdi army coalition force mahdi army cared much people like said however double seat parliament governorate said coalition force started withdraw iraq mahdi army started persecute people like used work coalition force said known working coalition force waiting right time attack said coalition force leaving government law militia killed people free wanted applicant said left country like said crossed two ocean die said paid everything cared whether lived died stayed iraq would killed backgroundaccording theunhcr eligibility guideline assessing international protection need asylum seeker iraqissued 31 may 2012 mahdi army jaysh al mahdi armed wing sadrist movement led muqtada al sadr became main shi ite opposition foreign coalition force iraq fall former regime 2003 unhcr noted although sadrists integrated political process one main backer prime minister nouri al maliki jaysh al mahdi given military capacity continued carry sporadic attack u target 2011 unhcr noted jaysh al mahdi reported active dhi qar among governorates unhcr eligibility guideline assessing international protection need asylum seeker iraq 31 may 2012 page 11 unhcr stated armed group continued target civilian associated perceived supporting iraqi government among specific group might associated perceived supporting iraqi government said omitting footnote civilian formerly employed otherwise affiliated former mnf usf multi national force iraq united state force iraq foreign government ngo international company well family risk targeted non state actor imputed political opinion since 2003 sunni shi ite armed group known threatened kidnapped killed interpreter embassy worker driver subcontractor others affiliated mnf usf foreign government international company organization reportedly deter others working ahead full usf withdrawal iraq achieved mid december 2011 advocate iraqi formerly employed u military raised concern left without protection fear employee record maintained usf may leaked armed group perpetrator violence iraqi affiliated mnf usf sunni shi ite armed group reported contingency plan provide emergency protection former iraqi employee usf withdrawal individual worked mnf usf may unable find new employment former employer becomes known many former usf employee allegedly hesitate reveal prior work experience potential new employer fear retribution unhcr eligibility guideline assessing international protection need asylum seeker iraq 31 may 2012 page 16 17 unhcr stated although main perpetrator persecution iraq non state actor protection national authority unlikely available case given national authority limited capacity enforce law order unhcr eligibility guideline assessing international protection need asylum seeker iraq 31 may 2012 page 13 finding reasonsthe applicant evidence broadly consistent consistent information available source gave evidence open forthright manner able clarify certain matter previously unclear possibly result deficiency standard interpreting departmental interview referred produced hearing documentary evidence corroborating claimed employment base nasiriyah accept applicant evidence regarding employment american military base nasiriyah applicant said hearing people mahdi army neighbourhood known brother working american military base linked attempt attack strengthened position mahdi army nasiriyah accept referred theunhcr eligibility guideline assessing international protection need asylum seeker iraqissued 31 may 2012 civilian formerly employed united state force military base iraq risk targeted non state actor reason imputed political opinion support u force iraq accept applicant return home nasiriyah reasonably foreseeable future real chance harmed even killed people mahdi army non state actor reason imputed political opinion considered whether applicant could find safety persecution fear moving somewhere else iraq example najaf brother life however referred unhcr eligibility guideline threat civilian formerly employed united state force military base exists throughout iraq necessarily mahdi army specifically sunni shi ite armed group consider real chance applicant past employment american military base nasiriyah would come light course seeking employment could targeted reason wherever go iraq likewise referred unhcr eligibility guideline iraqi authority limited capacity enforce law order high court said context n country guarantee citizen time circumstance safe violence said state obliged take reasonable measure protect life safety citizen measure would include appropriate criminal law provision reasonably effective impartial police force justice system per gleeson cj hayne heydon jj inminister immigration multicultural affair v respondent s152 2003 2004 hca 18 2004 205alr 487at 26 accept evidence government iraq meet international standard referred inrespondents s152 2003at 26 27 per gleeson cj hayne heydon jj regard protection affords civilian like applicant face credible threat non state actor like mahdi army consider persecution applicant fear involves serious harm required paragraph 91r 1 b act involves threat life significant physical harassment ill treatment consider imputed political opinion essential significant reason persecution fear required paragraph 91r 1 act consider persecution applicant fear involves systematic discriminatory conduct required paragraph 91r 1 c deliberate intentional involves selective harassment convention reason namely imputed political opinion reason given consider part iraq applicant could reasonably expected relocate would safe persecution fear conclusionsi find applicant outside country nationality iraq reason given find well founded fear persecuted reason imputed political opinion return iraq find applicant unwilling owing fear persecution avail protection government iraq nothing evidence suggest applicant legally enforceable right enter reside country apart country nationality iraq therefore find applicant excluded australia protection subsection 36 3 act seeapplicant c v minister immigration multicultural affair 2001 fca 229 upheld appeal minister immigration multicultural affair v applicant c 2001 fca 1332 2001 116 fcr 154 follows satisfied applicant person respect australia protection obligation refugee convention amended refugee protocol consequently applicant satisfies criterion set paragraph 36 2 themigration actfor grant protection visa decisionthe tribunal remit matter reconsideration direction applicant satisfies paragraph 36 2 themigration act
RE HELIOS ENERGY LTD; EX PARTE HELIOS ENERGY LTD [2021] WASC 183 (11 June 2021).txt	helios energy ltd ex parte helios energy ltd 2021 wasc 183 11 june 2021 last updated 11 june 2021jurisdiction supreme court western australiain chamberscitation helios energy ltd ex parte helios energy ltd 2021 wasc 183coram hill jheard 22 march 2021delivered 22 march 2021published 11 june 2021file cor 48 2021matter helios energy ltdex partehelios energy ltdplaintiffcorporations law security application extension time lodge cleansing notice application declaratory relief validate trading share issued without valid cleansing notice prospectus six instance security issued without valid cleansing notice blatant flagrant disregard obligation whether substantial injustice order made application grantedlegislation corporation act 2001 cth 707 708a 721 1322result application grantedcategory brepresentation counsel plaintiff n wallwork k mcnallysolicitors plaintiff mcnally cocase referred decision hill j 19 march 2021 plaintiff helios energy ltd helios energy filed originating process seeking order unders 1322of thecorporations act 2001 cth act relating contravention ofs 707 3 ands 727 1 act contravention occurred result six separate instance share issued 13 february 2019 4 march 2021 without valid cleansing notice cleansing prospectus despite number instance share issued without valid cleansing notice cleansing prospectus plaintiff provided frank detailed explanation circumstance surrounding share issue basis evidence satisfied failure caused inadvertence rather deliberate disregard plaintiff obligation light urgency application brought made order conclusion hearing 22 march 2021 granting relief sought said would subsequently publish reason decision reason decision part 6d 2corporations actpart 6d 2of act imposes disclosure obligation relation issue sale share certain circumstance obligation satisfied lodging commonly referred cleansing notice prospectus 1 disclosure made issuer share sold within 12 month party share issued may obliged make disclosure 2 cleansing notice exception relied upon precondition in 708a 5 act met cleansing prospectus exception applies prospectus lodged date share issued day sale offer made 3 occurs disclosure requirement offer sale class security met date factual backgroundin support application plaintiff relied three affidavit affidavit chen chik ong non executive director plaintiff filed 19 march 2021 affidavit john palermo company secretary plaintiff filed 19 march 2021 affidavit kathleen marie mcnally partner mcnally co plaintiff solicitor filed 22 march 2021 helios energy australian public company whose security listed australian security exchange asx helios energy oil gas company whose primary focus presidio oil project presidio county texas united state america 4 march 2021 share issueson 4 march 2021 plaintiff issued 95 333 357 share 106 investor following capital raising arranged cps capital group pty ltd cps capital group gleneagle security pty ltd gleneagle security 5 cps capital group gleneagle security issued fully paid share plaintiff fee capital raising 6 ordinary course share issued cps capital group gleneagle security would issued day share issued 106 investor 7 however occasion due delay gleneagle security providing detail plaintiff share issued occur subsequently share issued gleneagle security 10 march 2021 8 issuing share two tranche 4 march 2021 106 investor cps capital group 10 march 2021 gleneagle security created issue plaintiff compliance obligation unders 708a 5 act issue cleansing notice mr palermo discussed matter m lisa christou employee gratia australia pty ltd company engaged plaintiff provide accounting company secretarial service plaintiff following discussion mr palermo formed view single cleansing notice could lodged within five business day issue second tranche share gleneagle security would constitute adequate compliance plaintiff disclosure obligation act 9 mr palermo seek legal advice respect matter 10 11 march 2021 draft appendix 2a provided board approval 11 14 march 2021 draft announcement cleansing notice prepared mr john kenny plaintiff corporate advisor provided board approval 12 day mr ping plaintiff managing director approved issue document 13 15 march 2021 document lodged asx 14 evidence mr ong mr palermo time issue excluded information purpose ofs 708a 5 e act cleansing notice could lodged within time required act 15 15 march 2021 mr palermo informed asx compliance officer plaintiff failed lodge cleansing notice relation first tranche share issued 4 march 2021 16 immediately upon made aware issue mr palermo sought legal advice plaintiff solicitor eaton hall 17 16 march 2021 prior open trade mr palermo notified board issue requested obtained trading halt plaintiff share 18 instance non compliancefollowing discovery issue mr palermo requested plaintiff solicitor undertake comprehensive review compliance obligation underpt 6d 2of act since company reinstatement official list asx 11 august 2017 19 since reinstatement helios energy undertaken 51 share issue plaintiff solicitor discovered six irregularity 20 first plaintiff failure lodge cleansing notice relation issue 80 001 share 22 september 2017 21 none share sold within 12 month date issue traded since 22 accept submission counsel plaintiff consequence non compliance withpt 6d 2of act respect share issue 28 august 2019 plaintiff issued 173 941 share single investor following conversion option august 2019 issue 23 mr palermo evidence cleansing notice appendix 3b prepared m christou appendix 3b lodged asx 24 time normal procedure plaintiff cleansing notice appendix 3b prepared individual pdf file later combined single pdf file lodged asx 25 mr palermo belief plaintiff inadvertently lodged pdf file containing appendix 3b lodged combined pdf file 26 18 march 2021 plaintiff lodged cleansing notice asx respect august 2019 issue 27 evidence mr ong mr palermo time august 2019 issue excluded information purpose ofs 708a 5 e act cleansing notice could lodged 28 remaining irregularity identified plaintiff solicitor typographical error cleansing notice lodged asx 13 february 2019 plaintiff issued 11 037 022 share five investor february 2019 issue 29 cleansing notice lodged 13 february 2019 misquoted number share issued 10 687 022 share understated total number 350 000 share 30 corresponds number share issued gleneagle security marketing fee 31 share issued sophisticated professional investor 32 share sold 33 13 december 2019 plaintiff issued 27 566 789 share seven investor pursuant capital raising arranged gleneagle security december 2019 issue 34 cleansing notice lodged 20 december 2019 misquoted number share issued 27 435 789 share understated total number 131 000 share 35 corresponds number share gleneagle security issued marketing fee 36 share issued sophisticated professional investor 37 share subsequently sold 38 12 february 2020 plaintiff issued 500 000 share 13 february 2020 plaintiff issued 4 500 000 share february 2020 issue 39 instance share issued following conversion option single investor 40 cleansing notice lodged 14 february 2020 incorrectly stated 5 000 000 share issued 12 february 2020 41 mr palmero know whether share issued professional sophisticated investor 42 share since traded 43 3 november 2020 plaintiff issued 400 000 share single investor following conversion option november 2020 issue 44 cleansing notice lodged 5 november 2020 respect november 2020 issue inaccurately recorded date issue 27 october 2020 fact share issued 3 november 2020 45 mr palermo know whether share issued professional sophisticated investor 46 share registry able determine whether share subsequently sold 47 respect february 2019 issue december 2019 issue february 2020 issue november 2020 issue mr palermo evidence unaware reason inadvertence reason believe error cleansing notice deliberately made plaintiff taken several step address non compliance act including resolving seek legal advice matter may controversial recommendation director plaintiff notice reviewed external counsel lodged asx 17 march 2021 mr palermo contacted representative cps capital group gleneagle security inform error cleansing notice plaintiff non compliance act requested inform investor 48 18 march 2021 following expiry trading halt prior opening market plaintiff requested obtained suspension trading 49 day plaintiff solicitor mcnally co notified asic plaintiff non compliance intention apply court relief unders 1322of act 50 also subject asx announcement 18 march 2021 51 power unders 1322of act grant relief soughtsection 1322relevantly provides 4 subject following provision section without limiting generality provision act court may application interested person make following order either unconditionally subject condition court imposes order declaring act matter thing purporting done proceeding purporting instituted taken act relation corporation invalid reason contravention provision act provision constitution corporation b order directing rectification register kept asic act c order relieving person whole part civil liability respect contravention failure kind referred paragraph order extending period act matter thing instituting taking proceeding act relation corporation including order extending period period concerned ended application order made abridging period act matter thing instituting taking proceeding may make consequential ancillary order court think fit 6 court must make order section unless satisfied case order referred paragraph 4 act matter thing proceeding referred paragraph essentially procedural nature ii person person concerned party contravention failure acted honestly iii equitable order made b case order referred paragraph 4 c person subject civil liability concerned acted honestly c every case substantial injustice likely caused person considering application unders 1322of act essential principle 52 prescriptive requirement wording in 1322 4 pre condition in 1322 6 need satisfied 53 b court retains discretion unders 1322 4 whether make order sought c broad power reflect legislative policy law inflict unnecessary liability inconvenience invalidate transaction non compliance requirement non compliance product honest error inadvertence court avoid effect without prejudice third party public interest compliance law 54 implied limitation broad power in 1322will readily implied 55 section 1322is remedial character applied broadly e court make order unders 1322 4 condition also make consequential ancillary order think fit f order made unders 1322 4 notwithstanding contravention failure concerned resulted commission offence 56 dispositionapplication interested person accept plaintiff interested person may seek relief required bys 1322 4 57 position asx asicasic indicated neither support opposes application intend appear hearing matter 58 evidence court position asx light urgency matter brought satisfied appropriate proceed hearing application absence asx position known court application extension time unders 1322 4 actthe test unders 1322 4 act set vaughan j inre jaxsta ltd 59 tos 1322 4 derived guidance two stage process embraced barker j inblaze asset pty ltd v target energy ltd barker j stated exercise power unders 1322 4 referring tos 1322 4 involves effect two stage process first court need determine whether regard circumstance case general object corporation act 2001 cth appropriate make order extending relevant period abridging relevant period secondly circumstance made court must address question whether substantial prejudice likely caused person making order also power unders 1322 4 must exercised regard general object purpose relevant statutory provision within thecorporations act 2001 cth statutory purpose evinced bys 723 3 court order must undermine reason requirement act power must exercised regard interest party affected public interest ensuring compliance act footnote omitted period extended may extended even expired case relevant period expired 4 september 2019 respect august 2019 issue 15 march 2021 respect march 2021 issue following reason satisfied circumstance case appropriate grant extension time within lodge cleansing notice 19 march 2021 15 march 2021 respectively sought helios energy originating process first respect extension sought respect march 2021 issue extension sought short period time two business day second cleansing notice lodged due inadvertence issue promptly rectified upon discovery helios energy respect august 2019 issue accept find arose reason inadvertence respect march 2021 issue accept find occurred reason misunderstanding provision act soon mr palermo made aware error immediately sought advice external counsel rectify position accept find error honest intentional failure person concerned helios energy act honestly finding supported numerous share issue undertaken helios energy since relisting 2017 compliance act asx listing rule action company informed non compliance act third absence extension adverse consequence helios energy shareholder unless order made court helios energy share continue suspended trading deny shareholder opportunity trade share addition company potentially lose ability lodge cleansing notice 708a 5 b act require preparation prospectus future issue share fourth shareholder purchased share market since august 2019 may purchased share subject impugned share issue given sale occurred without disclosure potentially mean transaction void voidable creating title issue party fifth facilitating transaction originally contemplated making order sought consistent conduct commerce generally section 1322 4 act exercised way unnecessarily stifle corporate financial activity technical ground sixth helios energy brought application without delay helios energy first became aware issue 15 march 2021 plaintiff approached court 18 march 2021 matter came hearing 22 march 2021 seventh additional order sought helios energy provide notice given person affected ability apply raise matter court eighth asic oppose application shareholder helios energy substantial injustice 1322 6 c considered class person may impacted making order first people issued impugned share prejudice sale impugned share may void voidable want compliance statutory requirement 60 second people purchased share seller may sold share trading open market asx since issued sale share occurred without requisite disclosure pt 6d 2 act find basis inferring substantial injustice likely caused person making proposed order accept order sought made may substantial injustice plaintiff offer sale share may void voidable could give rise commercial uncertainty expense company must remain involved problem caused void voidable offer sale share also accept may substantial injustice ordinary shareholder plaintiff may able trade share open market asx lift current suspension trading usual case provide opportunity shareholder party raise complaint proposed order usual timeframe liberty apply within 28 day date order accept appropriate timeframe case discretionary reason withhold reliefnotwithstanding number instance contravention identified plaintiff accept find evidence substantial misconduct serious wrongdoing flagrant disregard corporate law company constitution warrant refusal relief sought 61 nothing evidence suggests minority shareholder interest might oppressed interest might affected satisfied shareholder impacted contravention well asic notified plaintiff contravention act given notice hearing 62 shareholder asic sought intervene hearing gave notice wanted heard application exercising discretion grant relief 1322 4 relevant factor promptness plaintiff sought remedy irregularity identified 63 case 15 march 2021 plaintiff informed compliance officer asx plaintiff failed issue cleansing notice respect tranche share issued 4 march 2021 one day informed non compliance 16 march 2021 plaintiff sought trading halt allow time consider issue relation application commencing proceeding 19 march 2021 course preparing application plaintiff instructed eaton hall review issue security plaintiff since company reinstatement official list asx 11 august 2017 accept plaintiff acted diligently informed issue application declaratory order 1322 4 plaintiff seek series declaration 1322 4 act offer sale sale quoted security period 13 february 2019 15 march 2021 inclusive invalid reason failure plaintiff issue cleansing notice pursuant 708a 6 act issue cleansing prospectus pursuant 708a 11 act exempt seller obligation disclosure act reason defect notice seller consequent failure comply 707 3 727 1 act note proposed validation order framed declaratory form b act matter thing offer sale security c contravention offering security sale sale without proper disclosure contravention 707 3 act 64 pre condition 1322 6 plaintiff submitted pre condition 1322 6 act satisfied turning first pre condition 1322 6 ii inre icandy interactive ltd bank smith j undertook comprehensive review relevant principle respect whether failure person concerned company act honestly 65 relevantly bank smith j considered determining whether someone acted honestly purpose ofs 1322 court look absence evidence dishonesty prompt action remedy error 66 b concept actinghonestlycan embrace 67 inadvertence failure turn one mind issue ii active incorrect consideration legal issue iii failure consider issue iv failure understand appreciate significance non compliance c testing honesty authority reveal court look company director company secretary others may concerned 68 case plaintiff erred failing lodge cleansing notice lodging defective cleansing notice share issued throughout period 13 february 2019 15 march 2021 accept error occurred honestly inadvertently either failing consider whether cleansing notice prospectus required lodged seeking legal advice whether required inadvertence respect inaccurate quotation cleansing notice rather deliberate disregard plaintiff officer obligation ch 6d act also accept case failure plaintiff director take active interest company compliance act properly define role company officer accept plaintiff director delegated responsibility company secretary ancillary ordersfor following reason satisfied circumstance case ancillary order granted term sought plaintiff first evidence number impugned share sold cannot discounted resale share circumstance consider appropriate make order sought remove question title share plaintiff second time application came hearing cleansing notice lodged 69 reason order concern future past act third satisfied conduct plaintiff failing lodge cleansing notice required act lodging inaccurate cleansing notice inadvertent blatant disregard obligation act consider public policy undermined granting plaintiff relief sought conclusionaccordingly conclusion hearing made order form annexed reason annexure annexure ai certify preceding paragraph comprise reason decision supreme court western australia hwresearch associate honourable justice hill11 june 2021 1 corporation act 708a 5 2 corporation act 707 3 see alsoregolden gate petroleum ltd 2010 fca 40 2010 77 acsr 17 3 corporation act 708a 11 4 affidavit john palermo filed 19 march 2021 11 5 affidavit john palermo filed 19 march 2021 24 26 6 affidavit john palermo filed 19 march 2021 30 7 affidavit john palermo filed 19 march 2021 31 8 affidavit john palermo filed 19 march 2021 31 33 9 affidavit john palermo filed 19 march 2021 46 47 10 affidavit john palermo filed 19 march 2021 49 11 affidavit john palermo filed 19 march 2021 34 jp 09 12 affidavit john palermo filed 19 march 2021 35 jp 10 13 affidavit john palermo filed 19 march 2021 36 jp 11 14 affidavit john palermo filed 19 march 2021 37 jp 12 15 affidavit john palermo filed 19 march 2021 112 affidavit chen chik ong filed 19 march 2021 22 16 affidavit john palermo filed 19 march 2021 38 17 affidavit john palermo filed 19 march 2021 39 18 affidavit john palermo filed 19 march 2021 40 43 jp 13 jp 14 19 affidavit john palermo filed 19 march 2021 52 20 affidavit john palermo filed 19 march 2021 53 54 jp 16 21 affidavit john palermo filed 19 march 2021 55 57 jp 16 22 affidavit john palermo filed 19 march 2021 58 23 affidavit john palermo filed 19 march 2021 69 70 24 affidavit john palermo filed 19 march 2021 73 75 25 affidavit john palermo filed 19 march 2021 73 26 affidavit john palermo filed 19 march 2021 75 27 affidavit john palermo filed 19 march 2021 76 jp 21 28 affidavit john palermo filed 19 march 2021 112 affidavit chen chik ong filed 19 march 2021 22 29 affidavit john palermo filed 19 march 2021 60 61 30 affidavit john palermo filed 19 march 2021 66 31 affidavit john palermo filed 19 march 2021 64 32 affidavit john palermo filed 19 march 2021 62 63 33 affidavit john palermo filed 19 march 2021 104 jp 04 34 affidavit john palermo filed 19 march 2021 77 79 jp 22 35 affidavit john palermo filed 19 march 2021 82 83 jp 23 36 affidavit john palermo filed 19 march 2021 85 37 affidavit john palermo filed 19 march 2021 79 80 38 affidavit john palermo filed 19 march 2021 104 jp 04 39 affidavit john palermo filed 19 march 2021 86 87 40 affidavit john palermo filed 19 march 2021 88 41 affidavit john palermo filed 19 march 2021 90 91 jp 24 42 affidavit john palermo filed 19 march 2021 89 43 affidavit john palermo filed 19 march 2021 104 jp 04 44 affidavit john palermo filed 19 march 2021 93 94 45 affidavit john palermo filed 19 march 2021 97 98 46 affidavit john palermo filed 19 march 2021 95 47 affidavit john palermo filed 19 march 2021 104 jp 04 48 affidavit john palermo filed 19 march 2021 100 101 jp 26 jp 27 49 affidavit john palermo filed 19 march 2021 44 jp 15 50 affidavit john palermo filed 19 march 2021 103 jp 28 51 affidavit john palermo filed 19 march 2021 102 jp 21 52 helios energy ltd 2017 fca 840 2017 122 acsr 174 53 weinstock v beck 2013 hca 14 2013 251 clr 396 43 53 64 54 wave capital ltd 2003 fca 969 2003 47 acsr 418 426 29 55 weinstock v beck 43 55 56 64 56 corporation act 1322 5 57 caeneus mineral ltd 2018 fca 560 38 classic mineral ltd 2018 fca 2039 34 58 affidavit kathleen marie mcnally filed 22 march 2021 3 kmm1 59 jaxsta ltd 2018 wasc 390 41 43 60 poseidon nickel ltd 2018 fca 1063 2018 129 acsr 57 67 63 61 wave capital ltd 2003 fca 969 2003 47 acsr 418 426 29 62 affidavit kathleen marie mcnally filed 22 march 2021 3 kmm1 63 g8 communication ltd 2016 fca 297 2016 112 acsr 22 34 60 64 seere caeneus mineral ltd 39 40 caeneus mineral ltd 35 36 65 icandy interactive ltd 2018 fca 533 2018 125 acsr 369 54 104 66 icandy interactive ltd 54 106 107 67 icandy interactive ltd 55 68 icandy interactive ltd 60 104 69 affidavit john palermo filed 19 march 2021 jp 20 jp 21
D.K. [2018] FWC 6691 (31 October 2018).txt	k 2018 fwc 6691 31 october 2018 last updated 7 november 2018 2018 fwc 6691fair work commissiondecisionfair work act 2009s 789fc application order stop bullyingd k ab2018 637 commissioner hamptonsydney 31 october 2018application fwc order stop bullying preliminary issue request interim order principle considered significant formal undertaking provided employer balance convenience making interim order liberty apply granted matter assigned member conference conducted background preliminary matter 1 11 october 2018 professor k made application stop bullying order unders 789fcof thefair work act 2009 act application alleges various element mob bullying conduct faculty director immediate supervisor school manager context employment major tertiary institution employer employer three named individual collectively respondent matter 2 along substantive 789fcapplication k also made separate application interim order prevent dismissal interim order application heard advance consideration substantive application indeed response substantive application due shortly 1 however given request urgent interim order commission provided opportunity respondent party provide response matter listed hearing telephone relatively short notice 3 decision deal interim order application opposed respondent party 4 hearing respondent party sought permission represented lawyer pursuant tos 596of act considered submission advanced support request k submission opposing course action advised persuaded grant permission purpose interim order application advised would subsequently provide reason conclusion decision note employer represented employed legal counsel officer already attendance k appeared along wife assisted presentation case 5 normal course interest open justice mean decision commission generally identify party 2 particular circumstance matter de identified name party individual decision circumstance include nature matter considered application significance matter involves alleged conduct applicant number individual given evidence case employer person named also yet provided response substantive application fact decision issued relevant party fully engaged process commission significant factor identification workplace would also tend identify applicant individual concerned also note matter heard private hearing party either supported oppose issuing decision form 6 would observe many consideration would apply hearing substantive application matter commission time application interim decision 7 section 589of act provides follows 589 procedural interim decision 1 fwc may make decision matter dealt 2 fwc may make interim decision relation matter 3 fwc may make decision section initiative b application 4 section limit fwc power make decision 8 written submission prepared external legal advisor 3 respondent party accepted interim order made commission provision 9 principal basis application interim order stated k following term also need urgent interim order prevent employer dismissing bullying properly investigated addressed 4 10 ground relied upon k may summarised follows employer imminent interest denying bullying given status nature conduct faculty concerned currently undergoing restructuring massive layoff bullying become integral tool new managerial style controlling labour implied threat reduction staffing made andthere real prospect dismissal employer threatened course action virtue letter 18 september 2018 reference disciplinary procedure relevant enterprise agreement include sanction due threat circumstance 11 k referred series serious claim bullying conduct considered consequence others workplace including involving former employee correspondence set substantive application support contention 12 k also contends interim order necessary ensure dismissed order preserve capacity substantive application dealt merit undertaking referenced employer insufficient appropriate respondent opposition interim order 13 respondent party denied bullying conduct contended action taken reasonable management action taken reasonable manner event respondent party indicated written submission dated 25 october 2018 basis making interim order present pending restructure applicant faculty impact upon employment recommendation made prepared seeking terminate employment applicant term disciplinary letter relied upon applicant proposes issue final warning dismissal andthe employer informed applicant proposal issue warning put hold pending resolution complaint 14 employer also indicated written submission circumstance change would give applicant least 5 day notice enable pursue interim order application 15 response concern raised applicant scope import position employer subsequently confirmed awritten undertakingto commission following effect employer proposal issue warning applicant proposed letter 14 september 2018 paused pending resolution complaint including thes 789fcapplication andif circumstance referred respondent submission dated 25 october 2018 subsequently change applicant employment threat employer give applicant notice change andtake action implement change resolution application applicant interim order provided applicant make application interim order within 7 day applicant receives notice referred 16 written undertaking provided email following hearing 29 october 2018 however term undertaking provided orally hearing subject relatively detailed submission party principle applied interim decision anti bullying jurisdiction 17 potential application interim order anti bullying jurisdiction discussed arm commission inbayly 5 referenced submission employer adopted matter 6 18 subject follows adopt without repeating approach matter took inbaylyand authority cited decision involves consideration whether aprima faciecase serious question tried made applicant whether inconvenience injury applicant would likely suffer interim order refused outweighs outweighed injury respondent would suffer injunction granted balance convenience nature remedy provision ofs 789ffof act inform consideration request interim order nature discretion exercised however purpose interim order including preserve capacity advance substantive application appropriate circumstance must also considered 19 addition given scheme act interim order nature considered issued lightly direct intervention commission early stage proceeding exercised considerable caution mere indication disciplinary process involved complaint workplace bullying without much unlikely trigger balance convenience necessary action application must considered right circumstance 20 would also respectfully observe earlier approach adopted gostencnik dp inworker b c e v automotive food metal engineering printing kindred industry union known australian manufacturing worker union amwu communication electrical electronic energy information postal plumbing allied service union australia others 7 interim order made 789fcanti bullying application prevent escalation probable bullying conduct also consistent general approach adopted matter consideration conclusion 21 application interim order made early commission process dealing thes 789fcapplication prior point commission conduct conference hearing deal application indeed matter formal response application provided point consideration interim order application result whilst commission aware contention made thes 789fcapplication heard evidence detailed submission various issue fact apparently dispute 22 satisfied k case supported relevant evidence capable providing foundation application jurisdiction nature extent alleged conduct respondent party significant serious may found commission capable demonstrating bullying conduct within meaning ofs 789fdof act however basis strongly contested respondent event test consideration interim order ultimately given finding necessary reach conclusion whether aprima faciecase serious question tried made within meaning authority 23 contended k potential dismissal applicant circumstance may prejudicial capacity stop bullying application heard determined merit see discussion implication dismissal applicant stop bullying matter inbayly 8 24 however case satisfied balance convenience interim order made given formal written undertaking provided employer consider undertaking satisfactorily deal immediate concern raised relied upon applicant support interim order application 25 finding regard concern raised applicant timeframes notice change consequence potentially make interim order application required regard note foreshadowed warning paused pending resolution thes 789fcapplication nature restructuring might otherwise impact applicant job security formal process required term relevant enterprise agreement evidence imminent relation relevant faculty minimum 7 day stay change position presently confirms applicant employment jeopardy would commence applicant received actual notice change would continue commission dealt subsequent interim order application applicant retains access post office box employer facility may used provide formal notice given apparently ready access private work email communication despite presently absent work due incapacity andthis would give reasonable opportunity make fresh application interim order event becomes necessary 26 accordingly intend issue interim order juncture proceeding liberty granted k make application relevant circumstance significantly change objectively warrant consideration request permission represented 27 earlier indicated permission representation sought respondent party unders 596of act relevantly following term 596representation lawyer paid agent 1 except provided subsection 3 procedural rule person may represented matter fwc including making application submission fwc behalf person lawyer paid agent permission fwc 2 fwc may grant permission person represented lawyer paid agent matter fwc would enable matter dealt efficiently taking account complexity matter b would unfair allow person represented person unable represent effectively c would unfair allow person represented taking account fairness person person matter 28 circumstance contemplated 596 3 4 act reproduced apply 29 proper approach application 596 act discussed federal court flick j inwarrell v walton 9 various decision commission 10 confirm decision grant refuse permission party represented lawyer pursuant 596 cannot properly characterised mere procedural decision also apparent term 596 party matter commission must normally appear behalf normal position may departed application permission made resolved accordance law namely one requirement imposed 596 2 taken account permission may granted one requirement 596 2 satisfied one requirement satisfied satisfaction requirement condition precedent subsequence exercise discretion conferred 596 2 act party seeking permission also bear onus persuading commission ground exist discretion exercised 30 respondent party contended effect permission given legal representation would enable matter dealt efficiently taking account complexity matter contended would unfair named individual granted permission given nature 789fc application fact may required give evidence 31 k strongly opposed request permission number ground including contention matter complex access legal representation respondent party would enable continuing abuse applicant unrepresented unable afford assistance k also referred saw considerable power imbalance unfairness would come representation given policy act 32 reason adopting view permission given particular circumstance case set given nature circumstance present matter reason include finding substantive merit otherwise 789fc application 33 complexity associated efficiency would often arise dealing urgent interim order application nature present case 11 party provided written submission case respondent party prepared external legal counsel indication party including applicant intended lead challenge evidence apparent dispute capacity commission consider application consideration relevant matter employer proffered undertaking capable directly addressing basis application 34 employer participated hearing internal legal counsel position take advice including legal advice undertaking issue absence representation given nature immediate issue foreshadowed undertaking individual named necessarily focus present proceeding least immediate purpose different position advance 35 balance persuaded permission granted absence relevant complexity immediate matter circumstance party weighed finding prerequisite 596 2 might otherwise basis discretion however noting request dealt outset hearing k represented could mean conduct hearing might conventional grant liberty external counsel remain available employer renew application permission relevant circumstance change subsequent request permission made 36 would clear request representation dealt context particular interim order application relevant consideration may apply differently hearing substantive application subsequent interim order application matter commission time end liberty given respondent party renew request relevant time future conduct substantive matter 37 789fc application shortly assigned locally based member commission convene conference deal matter see fit considered application response heard fully party commissionerappearances k applicant withmsb k internal counselon behalf employer person named behalf hearing telephone detail 2018adelaide29 october pr701874 1 delay normal case management process reason including provision amended application need obtain alternative contact service employer volume nature application focus upon interim order application 2 seemac v bank queensland limited 2015 fwc 774at 5 10 3 permission provision written submission lawyer required given operation 596 act thefair work commission rule 2013 4 written application interim order 5 bayly 2017 fwc 1886 6 seere subramanian 2017 fwc 3492 7 2016 fwc 5848 8 baylyat 26 9 2013 fca 291 10 see alsofitzgerald v woolworth limited 2017 fwcfb 2797 11 seesingh v metro train melbourne 2015 fwcfb 3502 king v patrick project pty ltd 2015 fwcfb 2697andasc pty ltd v australian worker unionand or 2014 fwc 544for discussion relevant complexity might circumstance meet prerequisite printed authority commonwealth government printer
Re application for bail by Harley Brown [2021] VSC 738 (10 November 2021).txt	application bail harley brown 2021 vsc 738 10 november 2021 last updated 10 november 2021in supreme court victorianot restrictedat melbournecriminal division ecr 2021 0278in matter thebail act 1977vin matter application bail harley brownapplicant judge niall jawhere held melbournedate hearing 29 october 2021 4 10 november 2021date judgment 10 november2021case may cited application bail harley brownmedium neutral citation 2021 vsc 738 criminal law application bail charge committing indictable offence bail contravening conduct condition bail assaulting emergency worker duty resisting emergency worker duty applicant intellectually disabled reliant support previously found unfit plead exceptional circumstance conceded whether unacceptable risk reoffending bailed bail granted bail act 1977ss 1b 4a 4aa 4d 4e 5aaaa 30a 30b 31 appearance counselsolicitorsfor applicantmr j lowycriminal lawyer geelongfor respondentmr mcginnesslegal service department victoria policehis honour introduction1 harley brown applicant 27 year old man intellectual disability intimate relationship aunt lc also intellectual disability relationship many way fraught police allege associated violent behaviour applicant towards lc behaviour proven serious interim family violence intervention order fvio place prevents applicant going lc home follows set allegation note proven emerge also real issue applicant fitness plead allegation alleged offending second horvath matter2 circumstance later refer 11 september 2021 applicant charged bailed number offence relating lc first horvath matter charge recklessly causing injury two count assault weapon unlawful assault criminal damage two count contravening fvio intending cause harm fear contravening final fvio 3 release bail police informed applicant attended lc home 12 40 pm 12 september 2021 police attended address applicant answered door told supposed lc residence arrest applicant responded allowed police asked stand handcuffed attempted flee inside house hit police officer screen door process 4 charged following offence detective senior constable jacob horvath second horvath matter committing indictable offence whilst bail 1 b contravening conduct condition bail two count 2 c assaulting emergency worker duty police officer 3 resisting emergency worker duty police officer 4 5 applicant remand since 12 september 2021 arrested charged matter refused bail geelong magistrate court 15 september 2021 appears bail refused context applicant sufficient funding national disability insurance scheme ndis 24 hour support community applicant ndis plan since reviewed 24 hour support seven day per week available least short term basis 6 second horvath matter next listed mention geelong magistrate court 24 november 2021 outstanding matter procedural history7 applicant facing number unresolved charge mainly concerning alleged offending lc matter also listed mention 24 november geelong magistrate court detail follows informant drever matter summons 8 28 april 2020 lc became agitated applicant refused accompany walk eventually requested leave home applicant hit kicked lc carer intervened punched hole lc bedroom door police attended served family violence safety notice 9 applicant charged summons unknown date 5 criminal damage unlawful assault assault kicking informant dickson matter summons 10 31 july 2020 applicant carer gbeadeh toubay sangar applicant request mr sangar drove applicant lc house applicant argued applicant left kicked cracked windscreen inside mr sangar car way home 11 applicant apologised mr sangar reported incident police interviewed applicant scene admitted causing damage said wanted pay fix 12 applicant charged summons wilful damage property 1 september 2020 informant smith matter summons 13 10 june 2021 applicant lc home got argument applicant kicked lc leg multiple time police attended took applicant corio police station family violence safety notice issued 14 applicant admitted kicking lc interview charged summons 29 july 2021 assault kicking unlawful assault 15 22 june 2021 final fvio made applicant geelong magistrate court protect lc order included safe contact condition including commit family violence lc destroy property served applicant 1 july 2021 first horvath matter16 4 00 11 september 2021 applicant lc home argued cigarette escalated applicant punching lc arm kicking leg threatening 15 centimetre knife lc received small laceration hand trying protect applicant swung knife towards chest lc avoided struck applicant also broke crockery cup bedroom window incident 17 police attended arrested applicant charged 11 september recklessly causing injury two count assault weapon unlawful assault criminal damage two count contravening fvio intending cause harm fear contravening final fvio 18 granted bail date bail justice condition including residence go remain within 200 metre lc home contact witness prosecution informant comply active fvio bail first horvath matter extended 20 september next listing date 24 november 2021 applicable legislation19 interpreting applying thebail act 1977 act court required take account guiding principle set in 1b 1 act 6 20 applicant seek bail offence act schedule 2 offence right 7 bail must refused unless applicant satisfies court exceptional circumstance exist justify grant bail 8 21 unders 4aa 2 c act exceptional circumstance test applies schedule 2 offence allegedly committed applicant bail schedule 2 offence respondent submitted contravention fvio charge first horvath matter applicant bailed shortly alleged offending second horvath matter fall within item 18 schedule 2 contravening fvio 9 schedule 2 offence item 18 course committing offence accused alleged used threatened use violence accused within preceding 10 year convicted found guilty offence course committing accused used threatened use violence person b bail decision maker satisfied accused separate occasion used threatened use violence person subject order notice whether accused convicted found guilty charged offence connection use threatened use violence 22 charge 3 contravening fvio intending cause harm fear first horvath matter particularised charge sheet arising physical violence applicant found guilty unlawful assault making threat kill 2016 unlawful assault 2017 item 18 given applicant must meet exceptional circumstance test basis necessary satisfied applicant used threatened use violence lc 23 court satisfied exceptional circumstance justifying grant bail court must apply unacceptable risk test 10 bail must refused respondent satisfies court risk kind set in 4e 1 act risk unacceptable risk 11 24 considering step court must take account surrounding circumstance contained in 3aaaof act 12 relation risk consider whether condition bail may imposed mitigate risk unacceptable 13 intervention order family violence risk25 already noted number interim fvios place relation applicant lc 15 september 2021 fvio made applicant protect lc 22 june 2021 varied geelong magistrate court interim fvio full non contact condition fvio matter next listed 24 november 2021 26section 5aaaa 1 act requires court make certain inquiry prosecutor including whether force fvio applicant 27 note thats 5aaaa 2 act requires court considering release person charged family violence offence consider whether accused released bail would risk would commit family violence whether risk could mitigated imposition bail condition making fvio section 3of thebail actdefines family violence offence offence againstsection 37 2 37a 2 123 2 123a 2 or125a 1 thefamily violence protection act 2008 b offence conduct accused family violence although context offending second horvath matter applicant attended lc house permitted charged matter family violence actual offence seek bail bail related resisting arrest necessary decide whether 5aaaa 2 act applies risk family violence directed towards lc central matter application requires close attention applicant personal circumstances28 applicant 27 year old intellectual disability global cognitive impairment full scale iq 48 mother also intellectual disability removed care toddler due neglect abuse remained state care age 18 experienced frequent change residential arrangement attended specialist school due learning difficulty level intellectual deficit quite profound 29 applicant also diagnosis attention deficit hyperactivity disorder epilepsy tourette disorder depression receipt disability support pension ndis package requires high level assistance almost aspect daily living ndis support funding30 applicant currently receiving funding ndis 31 appears earlier time applicant funding 24 hour support seven day per week however ceased point applicant staying home overnight 32 mark james social worker director one support service applicant ndis co ordinator letter tendered bail application magistrate court mr james said time second horvath matter applicant sufficient ndis funding support 9 00 5 00 pm seven day per week mr james indicated plan review would need occur determine whether additional support could funded 33 mr james gave evidence explained working applicant five year aware need said applicant funding currently used pay care 9 00 5 00 pm seven day per week said carer assist applicant daily living need said request made vary plan fund 24 hour care time giving evidence plan approved said meantime existing funding could used purpose spent way would last two month 34 asked cross examination carer would respond event applicant tried make contact lc explained carer could physically restrain applicant could try divert attention persuade said event applicant persisted otherwise breach bail condition would call police 35 funding status applicant uncertain given importance support applicant event released bail application adjourned provide detail funding level care would available applicant immediately release proposed level care would involve team 10 support worker important proposed measure clearly identified applicant released bail 36 matter adjourned 4 november medium term status funding remained unresolved existing carers positon resume immediate care application adjourned 10 november 2021 criminal history37 applicant criminal history 2016 2017 although prior conviction primarily comprises bail property damage related offence well unlawful assault making threat kill fitness stand trial38 significantly office public prosecution discontinued prosecution applicant county court 2020 relation six matter appear involved similar offending current matter faced applicant family violence allegation contravention fvio bail related offence 39 followed report dr matt treeby clinical neuropsychologist psychologist 5 june 2019 dr joseph sakdalan clinical psychologist 14 april 2020 formed view applicant unfit stand trial dr treeby also considered applicant defence mental impairment 40 dr treeby opined impression applicant limited understanding conduct wrong instance seemingly understanding bail bail condition mean bail condition must adhered due global cognitive impairment certainly could reason moderate degree sense composure whether conduct perceived reasonable people wrong opinion applicant defence mental impairment safety others impression applicant requires 24 7 supervision substantial one one support support need lifelong ensuring applicant adequately supervised carers appropriate accommodation would seem important relevant issue address help minimise behaviour concern going forward given extent cognitive impairment severely impaired learning memory function impression applicant require substantial degree assistance monitoring ensure adheres intervention order bail condition community based disposition receive going forward applicant regrettably cognitive capacity read comprehend commit memory form complex legal information basis marked global cognitive impairment response question addressing presser criterion impression applicant fit plea appears understanding nature charge facing seemingly understanding mean enter plea could tell purpose trial understand substantial effect evidence impression global cognitive impairment compromise ability follow course trial also compromise ability give instruction legal practitioner also substantial concern regarding applicant fitness tried basis global mental cognitive impairment 41 dr joseph sakdalan opined relation applicant fitness stand trial defined bysection 6 1 crime mental impairment unfitness tried act 1997 opinion applicant meet criterion consideration unfitness stand trial cmia applicant full scale iq fall moderate intellectual disability range experience individual full scale iq 40 early 50 largely incompatible fit stand trial severity applicant cognitive impairment render unable participate meaningfully court process applicant condition severe cognitive impairment due intellectual disability considered permanent opinion applicant would likely become fit stand trial next 12 month foreseeable future 14 applicant contentions42 applicant conceded family violence inherently serious however conceded serious example type offending whilst applicant submit prosecution case weak submitted fitness tried live issue fitness assessment relation current offending undertaken however assessment appointment cancelled twice due prison lockdown due applicant iq based previous assessment submitted almost certain found unfit 43 applicant relied limited criminal history absence criminal conviction support 44 applicant intellectual disability cognitive impairment submitted render vulnerable custody applicant longest period remand reportedly frightened 45 applicant submitted matter public policy remain custody awaiting disposition given severity cognitive impairment ndis support available could provided similar level prison 46 applicant also referred delay county court matter proceed committal stream due fitness issue raised submitted charge proven time spent remand would exceed term imprisonment imposed 47 applicant proposed reside home bell post hill directed ndis provider 48 risk applicant relied support receive ndis accompanied bail condition requiring live bell post hill address otherwise directed ndis provider affidavit support also proposed condition applicant follow lawful direction ndis provider support worker proposed submission respondent contentions49 respondent conceded may open court find exceptional circumstance exist justify grant bail 50 however respondent opposed application basis unacceptable risk applicant would endanger safety welfare person commit offence bail 51 respondent submitted case strong however conceded respondent future assessment mirror provided affidavit support fitness plead may live issue noted recent evidence applicant fitness context current offending 52 respondent indicated remittance horvath charge committal stream due fitness issue raised cannot considered office public prosecution outcome plan review known 53 respondent submitted current offending viewed aggregate involved serious example family violence informant report noted applicant recorded leap database perpetrator multiple family violence incident criminal history involving physical violence property damage 54 respondent asserted previous prosecution discontinued due fitness due factual issue prosecution case 55 respondent noted applicant spent 48 day custody including date hearing submitted term imprisonment fvio contravention assault charge would within range however rehabilitative disposition would likely due applicant circumstance 56 lc told police 20 october 2021 wish applicant return live belief even provided accommodation 57 respondent submitted applicant history including alleged discontinued prosecution demonstrates pattern behaviour risk future family violence extremely high considering current allegation previous history 15 record leap database june 2018 september 2021 lc victim applicant responsible respondent also submitted applicant inability control anger contacted lc whilst remanded expressing intention see released 58 respondent submitted current support place limited 9 00 5 00 pm ameliorate risk applicant reoffending applicant disability risk factor non compliance fvio bail condition 59 respondent relied applicant charged 19 time bail related offence current offending occurred day following grant bail first horvath matter conclusionexceptional circumstances60 satisfied exceptional circumstance regard medical evidence nature charge real issue concerning applicant fitness plead suffers profound intellectual impairment affect daily life plainly affect reasoning process significant extent low iq dependent high level care daily functioning 61 appears respondent accepted applicant unfit plead respect earlier offending condition applicant obviously unremitting reason consider improved time 62 addition fitness plead incarceration prison remand person level intellectual impairment suffered applicant raise important issue accept material show coping remand difficult start settled nevertheless persuaded proper understanding situation make incarceration burdensome inappropriate 63 plain understandable ongoing risk offending towards lc centre current application respondent make valid point regard past event lc risk subjected violence applicant event released bail however court appeal said inha pseudonym v queen 15 absence specific statutory provision preventative detention alien fundamental principle underpin system justice 16 undermines system justice use remand form preventative detention protect risk criminal behaviour caused mental impairment 64 given applicant poor level comprehension imposition condition directed unlikely much utility protecting offending unless applicant assistance compliance 65 foreshadowed matter first 29 october 2021 24 hour care still process approved ndis adjourned matter 4 november 2021 basis approval would obtained date 3 november 2021 advised letter sent applicant social worker 24 hour care still process approved event would possible commence 24 hour care 8 november 4 november 2021 applicant requested adjournment 8 november care arrangement could approved adjourned matter 10 november 66 10 november 2021 advised applicant 24 hour care available current funding least limited period time available approximately seven week also advised formal response ndis regarding applicant funding going forward expected imminently 67 fact applicant place ndis funding 24 hour care place bail refused magistrate court mean risk significantly ameliorated reaching conclusion conscious potential limitation ndis worker role physically restrain applicant persuaded continuous oversight ndis worker assist keeping applicant away lc able call police assistance appreciate may place strain involved however persuaded burden would onerous justify keeping applicant remand 68 satisfied presently place suitable arrangement care applicant least short term require 24 hour care condition bail whether applicant sufficient ndis funding allow level care beyond current funding envelope outside control obviously central purpose care arrangement keep applicant others importantly lc safe carer doubt reduce risk applicant seek contact lc current care arrangement contemplated level support however shortfall funding mean option applicant remanded custody prison particularly question applicant fitness plead inevitably arise dealt county court subject significant delay 69 applicant bailed appear magistrate court 24 november 2021 given uncertainty future progress charge including attitude prosecution question applicant fitness plead may significantly affect delay finalising charge uncertainty applicant ongoing level support current funding come end would appropriate magistrate court informed ongoing level care next hearing 70 advised mr james gave evidence 10 november 2021 event funding available adequate care informant notified think necessary court impose judicial monitoring applicant bail returnable magistrate court event issue fitness plead arises matter transferred county court consider applicant bail subject adequate supervision court 1 bail act 1977s 30b 2 bail act 1977s 30a 1 3 crime act 1958s 31 1 b 4 crime act 1958s 31 1 b 5 note charge sheet undated however summonsed appear geelong magistrate court 13 october 2020 presumably charged prior date 6 bail act 1977s 1b 2 7 bail act 1977schedule 2 item 30 8 bail act 1977ss 4aa 2 c 4a 1a and4a 2 additionally indictable offence seek bail assaulting emergency worker duty resisting emergency worker duty also fall within schedule 2 committed applicant bail summons indictable offence e g recklessly causing injury first horvath matter criminal damage drever matter sch2 item 1 b 9 offence againstsection 123or123aof thefamily violence protection act 2008 10 bail act 1977s 4d 1 11 bail act 1977s 4e 1 2 12 bail act 1977ss 4a 3 and4e 3 13 bail act 1977s 4e 3 b 14 report dr sakdalan exhibit nh 2 37 15 2021 vsca 64 16 ibid 64 maxwell p kaye ja
TSCHIRN & ANOR v AUSTRALIAN EXECUTOR TRUSTEES LTD [2015] SASC 58 (13 April 2015).txt	tschirn anor v australian executor trustee ltd 2015 sasc 58 13 april 2015 last updated 16 april 2015supreme court south australia appeal master 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 tschirn anor v australian executor trustee ltd 2015 sasc 58judgment honourable justice parker13 april 2015procedure supreme court procedure south australia procedure rule court summary judgmentappeal new trial appeal general principle interference discretion court generalappeal decision master dismissing interlocutory application defendant appellant summary judgment plaintiff respondent executor estate brought proceeding defendant alleging unlawfully took advantage relationship deceased thereby diminishing estate benefit gain statement claim alleged deceased final year 1 900 transaction conducted saving account totalling excess 700 000 defendant sought summary judgment rule 232 basis statement claim identify transaction said utilised defendant benefit extent master held claim reasonably arguable refused application summary judgment whether master erred finding reasonable basis claim defendant whether master erred making order summary judgment held parker j appeal dismissed real question fact law decided trial master err finding reasonable basis claim defendant requirement rule 232 2 satisfied necessary determine whether master erred making order summary judgment supreme court civil rule 2006r 232 referred royal bank scotland v etridge 2001 ukhl 44 2002 2 ac 773 johnson v buttress 1936 hca 41 1936 56 clr 113 house v king 1936 hca 40 1936 55 clr 499 ceneavenue pty ltd v martin 2008 sasc 158 2008 106 sasr 1 spencer v commonwealth 2010 hca 28 2010 241 clr 118 proude v visic 4 2013 117 sasr 560 three river district council v bank england 3 2003 2 ac 1 considered word phrase considered defined reasonable basis claim tschirn anor v australian executor trustee ltd 2015 sasc 58appeal master civilparker j appeal decision master court dismissing interlocutory application appellant defendant seeking order summary judgment alternative strike better particular 1 notice appeal referred preceding three issue however hearing appeal counsel defendant abandoned strike particular ground thus issue whether master erred refusing make order summary judgment ground appeal may reduced following master erred holding reasonable basis claim paragraph 26 4 27 3 1 27 3 2 27 6 33 second statement claim withdrawal made mr atkinson bank sa saving account made defendant utilised benefit matter governed rule 232 232 summary judgment 1 court may application party give summary judgment party 2 summary judgment may given court satisfied applicant plaintiff reasonable basis defending applicant claim b applicant defendant reasonable basis claim applicant backgroundthe primary action brought australian executor trustee ltd plaintiff one executor estate late joyce atkinson deceased grantley tschirn sharon tschirn defendant plaintiff alleges defendant unlawfully took advantage relationship mr atkinson final year life thereby diminishing estate benefit gain mr tschirn godson albert atkinson married mr atkinson mr tschirn long relationship mr mr atkinson mr atkinson known mr tschirn since birth frequent contact 1980 mr atkinson frequent contact mr tschirn 1997 mr atkinson died 2003 defendant began assist mr atkinson various task visited regularly action concern three discrete period time march 2007 death mr atkinson 1 november 2009 plaintiff pleads time defendant unlawfully took advantage relationship mr atkinson financial benefit march 2007 mr atkinson suffering increasingly severe physical mental infirmity unable care home without assistance become emotionally reliant upon defendant plaintiff alleges defendant separately jointly special relationship influence mr atkinson continued death first period march 2007 july 2007 march 2007 mr atkinson moved defendant home plaintiff pleads paragraph 24 third statement claim march 2007 july 2007 defendant used special relationship influence mr atkinson obtain agreement provide asset defendant use 2 mr atkinson said made large number cash withdrawal eftpos payment request defendant expended primarily benefit second period july 2007 9 october 2009 plaintiff alleges july 2007 9 october 2009 mr atkinson admitted hospital defendant used special relationship influence mr atkinson gain access asset use obtaining debit card pin number relevant paragraph third statement claim state 26 4 1 july 2007 9 october 2009 sum exceeding 607 258 02 withdrawn deceased banksa saving account directly defendant primarily atm eftpos transaction using deceased visa debit card 27 3 sum 607 258 02 sum 27 3 1 574 200 00 withdrawn defendant atm eftpos transaction 27 3 2 31 758 02 withdrawn defendant way periodical debit variously credited account numbered u008380 105 911 999269240 banksa visa credit card account name deceased ii u087021 032 797 880725 owner account known plaintiff iii u012721 093 003 316326 owner account known plaintiff 27 4 sum 1 300 00 withdrawn defendant teller cash withdrawal using deceased visa debit card 27 6 fund subject transaction pleaded paragraph 27 3 27 4 utilised primarily defendant benefit detriment harm deceased alternatively inadequate consideration deceased third period 9 october 2009 1 november 2009 plaintiff pleads paragraph 29 1 third statement claim 4 september 2009 defendant sought deceased gave defendant authorisation become signatory operate saving account paragraph 29 2 state 9 october 2009 mr atkinson admitted hospital death 1 november 2009 withdrawal totalling 152 839 05 made saving account comprised transfer made credit three separate account amount 50 000 50 000 11 000 respectively 41 839 05 way cash withdrawal eftpos transaction paragraph 33 third statement claim state defendant used deceased visa debit card debit deceased banksa saving account purchase item withdraw cash business providing eftpos facility withdraw cash establish periodical debitsas pleaded paragraph 24 26 27 29 signatory said account withdrew transferred fund pleaded paragraph 29 1 particularsa copy transaction deceased said banksa saving account period 1 july 2007 30 november 2009 annexed statement claim annexure b plaintiff say every transaction debited face account unlawfully used benefit defendant plaintiff summarises action undue influence paragraph 37 40 third statement claim follows plaintiff say relationship mr atkinson defendant defendant position influence reliance dependence upon presumption arises mr atkinson unduly influenced defendant allow expend monies withdraw monies saving account amount withdrawn cannot accounted ground contract friendship charity otherwise therefore transfer expenditure withdrawal mr atkinson saving account march 2007 1 november 2009 tainted undue influence ought set aside plaintiff also relies unconscionable conduct breach fiduciary duty cause action challenged master appeal need considered plaintiff seek order defendant pay equitable compensation monies expended withdrawn mr atkinson provided mr atkinson saving account march 2007 1 november alternative plaintiff seek order defendant account plaintiff profit benefit gained conduct access proceeds mr atkinson saving account march 2007 1 november 2009 commencement proceedingsby mr atkinson appointed plaintiff mr tschirn executor administering estate plaintiff found mr atkinson death transaction withdrawal saving account since march 2007 excess 700 000 00 amount included 334 cash withdrawal 1 500 following application advice direction filed plaintiff kelly j directed appropriate reasonable action taken defendant relation monies withdrawn 18 february 2014 second statement claim filed schedule transaction withdrawal mr atkinson saving account july 2007 november 2009 3 defence yet filed defendant interlocutory applicationon 9 july 2014 defendant interlocutory application summary judgment strike particular heard master application sought following order direction order summary judgment pursuant r 232 alternatively relevant paragraph second statement claim struck pursuant r 104 respect claim period described pleading march 2007 8 october 2009 generally alternatively order second statement claim filed 4 june 2013 struck stayed abuse process pursuant rr 104 193 insofar relates claim period described pleading march 2007 8 october 2009 andin alternative order particular pursuant r 102 withdrawal pleaded paragraph 24 26 27 33 second statement claim period described pleading march 2007 8 october 2009 alleged made defendant plaintiff pay defendant cost application defendant application supported brief affidavit solicitor affidavit deponent eg defendant direct knowledge purpose great many withdrawal made mr atkinson account received benefit transaction evidentiary material master comprised affidavit mr neil page solicitor employed plaintiff dated 11 june 2014 turn exhibited amongst compendious material affidavit dated 3 may 2012 mr tschirn dated 16 august 2012 latter two affidavit filed relation application advice direction determined kelly j affidavit mr tschirn stated mr atkinson preferred stay defendant instead living alone nursing home want cause financial burden time mr atkinson moved defendant home care provided primarily defendant mr tschirn attested time mr atkinson insisted paying various expense outing lunch dinner holiday enjoyed defendant also voluntarily paid improvement defendant home improvement facilitated care others gave comfort enjoyment mr tschirn described improvement stated mr atkinson wished pay directly related care mr tschirn also stated first period would go wife bank would withdraw cash give make various payment point second period mr atkinson longer wished attend bank personally requested defendant become signatory saving account mr tschirn stated cash withdrawal 1 500 either made mr atkinson one defendant express instruction discussed expense wanted paid however indicate withdrawal used deny benefitted transaction save extent noted referred certain expenditure made benefit mr atkinson mr tschirn stated third period following mr atkinson admission hospital told wished changed provide defendant child 23 october 2009 told wished make gift 50 000 two defendant child reached age 18 year 11 000 third child education general advancement insufficient time mr atkinson changed mr tschirn withdrew sum request master reasonsthe defendant application summary judgment strike related first second period ie march 2007 8 october 2009 application referred relevant paragraph specify paragraph intended covered master summarised summary judgment application follows defendant took issue statement claim insofar pleads breach fiduciary duty unconscionable conduct undue influence rather defendant complained identification impugned transaction plaintiff simply annexed schedule withdrawal eftpos payment mr atkinson saving account relevant period asserted transaction benefit defendant defendant contended would effect shifting onus proof onto however plaintiff carry onus identifying allegedly tainted transaction thus defendant contended plaintiff reasonable prospect establishing part claim master held issue tried real fanciful fairly arguable plaintiff reasonable prospect success 4 noting defendant sought summary judgment respect period one period two period three master considered usually inappropriate give part summary judgment matter trial pursued relation remaining portion action event 5 master held could said plaintiff reasonable prospect success pursuing obtaining order account noted kelly j satisfied reasonable basis plaintiff pursue claim 6 master inferred paragraph intended subject strike application identified application particular ie relevant appeal paragraph 26 27 33 defendant longer pursue strike application counsel made submission appeal hearing basis master reason respect paragraph 26 27 33 relate strike application relevant question whether reasonable basis claim paragraph identified withdrawal made defendant utilised benefit master considered particular paragraph 33 heart defendant complaint respect paragraph 26 27 33 paragraph 33 refers annexure b third statement claim schedule comprising 36 page refers 1 900 transaction mr atkinson saving account 2 july 2007 30 november 2009 master held pleading appropriate able responded defendant stating 39 defendant position every time instrumental withdrawing fund joyce account specific instruction consent endorsement require plead every transaction identified annexure b oppressive tolerated court 40 first defendant exhibited affidavit already identified payment taken defendant used purpose associated direction given aunty joyce affidavit denied unlawful use monies benefit defendant monies taken used directed joyce difficult see defendant cannot circumstance plead paragraph 33 denying matter court determine whether circumstance relationship defendant joyce plaintiff succeed various application declaration account determination need made right account exists established however warrant stage strike plea offending rule court abuse process provide warrant stay action liability attorney fiduciary account onerous whether liability established proceeding yet determined master referred judgment house lord inroyal bank scotland v etridge 7 lord nicholls birkenhead said 13 whether transaction brought exercise undue influence question fact elsewhere general principle asserts wrong committed must prove burden proving allegation undue influence rest upon person claim wronged general rule evidence required discharge burden proof depends nature alleged undue influence personality party relationship extent transaction cannot readily accounted ordinary motif ordinary person relationship circumstance case 14 proof complainant placed trust confidence party relation management complainant financial affair coupled transaction call explanation normally sufficient failing satisfactory evidence contrary discharge burden proof proof two matter stage set court infer absence satisfactory explanation transaction procured undue influence word proof two fact prima facie evidence defendant abused influence acquired party relationship preferred interest behave fairly evidential burden shift produce evidence counter inference otherwise drawn master held uch approach reasonably arguable matter refused application summary judgment strike particular issue appealthis appeal may reduced three key issue whether master erred holding reasonable basis plaintiff claim every withdrawal transaction relevant period benefit defendant matter law whether master erred holding reasonable basis plaintiff allege matter fact andin event whether master erred making order summary judgment defendant submission appealcounsel defendant contended plaintiff made attempt third statement claim particularise withdrawal relevant period said defendant benefit plaintiff merely pleaded aggregate amount withdrawn various type transaction ie eftpos atm forth annexure b provide particular date amount withdrawal counsel submitted matter fact matter law adequate establish reasonable basis plaintiff claim counsel submitted establish cause action undue influence plaintiff must prove defendant benefited transaction master said misapplied lord nicholls statement inetridge evidentiary burden cannot shift defendant shown received gift benefited transaction substantial value submission relied onjohnson v buttresswhere dixon j held 8 party may antecedently stand relation give one authority influence abuse proper protected stand relation party position influence cannot maintain beneficial title property substantial value made gift unless satisfies court took advantage donor gift independent well understood act man position exercise free judgment based information full donee burden imposed upon one party certain well known relation soon appears relation existed obtained substantial benefit emphasis added counsel contended statement claim fails identify specific substantial gift transaction benefit defendant manner transaction point pleaded entirely used benefit defendant point used primarily benefit contradictory impermissible attempt shift defendant burden proving benefited transaction counsel also contended matter fact reasonable basis upon could alleged every withdrawal made caused defendant benefit evidence put forward plaintiff beyond annexure b letter showing mr tschirn became signatory mr atkinson account plaintiff knowledge evidence whether withdrawal used defendant benefit mr tschirn hand deposed expenditure mr atkinson wished pay reason transaction made mr atkinson express instruction respect periodical debit pleaded paragraph 27 3 2 third statement claim plaintiff plead evidence identifying owner two account certain payment credited counsel defendant submitted court need satisfied master reason disclose errorin thehouse v kingsense 9 rule 232 us word may determination rule involve exercise judicial discretion succeed appeal sufficient defendant show master made finding reasonable basis plaintiff claim counsel submitted inceneavenue pty ltd v martin 10 andspencer v commonwealth 11 test held whether party reasonable prospect success rather whether identifiable error exercise discretion counsel also submitted would unusual outcome court able determine reasonable basis party claim nevertheless refuse strike claim matter discretion summary judgment rule 232there little dispute party basis upon summary judgment may granted rule 232 inceneavenue pty ltd v martin 12 debelle j held rule 232 2 requires court identify issue tried ass whether claim reasonable prospect success question whether reasonable basis claim must determined summary way court conduct mini trial question 13 must evident obvious reasonable basis plaintiff claim question must capable resolution without prolonged argument 14 principle applied inproude v visic 4 15 blue j considered meaning expression reasonable basis claim held gloss placed upon expression 16 honour referred tospencer v commonwealth hayne crennan kiefel bell jj held phrase reasonable prospect ought paraphrased subject contrast expression necessary give full weight expression whole honour also noted power dismiss action summarily exercised lightly 17 inspencer v commonwealth french cj gummow j held task one practical judgment 18 relevantly appeal honour said 19 may judgment law fact mixed law fact factual issue capable disputed dispute summary dismissal awarded respondent simply court formed view applicant unlikely succeed factual issue success proceeding depends upon proposition law apparently precluded existing authority may always end matter existing authority may overruled qualified explained summary process must used stultify development law success proceeding critically dependent upon proposition law would contradict binding decision court court hearing application 31a could justifiably conclude proceeding reasonable prospect success french cj gummow j considered following passage lord hope inthree river district council v bank england 3 particularly relevant case involves apparently complex question fact 20 method issue fact tried court well settled normal process discovery interrogatory completed party allowed lead evidence trial judge determine truth lie light evidence rule well recognised exception example may clear matter law outset even party succeed proving fact offer prove entitled remedy seek event trial fact would waste time money proper action taken court soon possible case may possible say confidence trial factual basis claim fanciful entirely without substance may clear beyond question statement fact contradicted document material based simpler case easier likely take view resort properly called summary judgment complex case unlikely capable resolved way without conducting mini trial document without discovery without oral evidence lord woolf said inswain v hillman object rule designed deal case fit trial principle referred inspencer v commonwealthmust applied present case considerationthe first question determined whether plaintiff claim pleaded matter law reasonable prospect success noted 35 defendant relied uponjohnson v buttress 21 support contention evidentiary burden shift defendant established obtained substantial benefit fromeachof impugned transaction alternative proposition advanced plaintiff merely need prove matter fact undue influence transaction occurred call explanation requirement met defendant required provide satisfactory explanation transaction approach said supported passage judgment lord nicholls inetridgeset 31 consider reasonably arguable legal position expressed lord nicholls inetridgeis correct approach applied trial plaintiff able prove matter fact relationship undue influence transaction called explanation evidential onus would fall upon defendant establish transaction tainted undue influence consider master err finding reasonably arguable correct approach adoption approach would require plaintiff identify specifically statement claim transaction said used improperly benefit defendant extent used would sufficient plead withdrawal benefitted defendant reason accept plaintiff contention moment statement claim merely asserts withdrawal usedprimarilyfor benefit defendant consider master err holding likely first step trial determine liability reference mr atkinson legal capacity influence exercised defendant upon issue resolved determined whether defendant ordered account also consider master err rejecting defendant contention reasonable basis matter law plaintiff claim second question whether plaintiff reasonable prospect success proving claim matter fact ie reasonable basis plaintiff allege withdrawal made relevant period benefit defendant clear deciding strike application court need conduct mini trial make final determination disputed fact task court critically examine evidentiary material master determine whether real question fact determined trial case matter fact incontestable need determined trial limited affidavit evidence sufficient master determine reasonable basis plaintiff allegation defendant involved transaction identified statement claim accordingly consider clear necessarily limited evidence master plaintiff claim must fail insufficient evidence master various withdrawal use permit factual finding needed summary judgment consider real legally significant question disputed fact decided trial master err finding reasonable basis matter fact plaintiff claim agree finding master issue tried real fanciful fairly arguable plaintiff reasonable prospect success 22 master err declining make order summary judgment conclusion necessary consider party submission whether rule 232 confers discretion whether master reason reveal error thehouse v king 23 sense conclusioni dismiss appeal 1 master fact made order better particular respect paragraph 24 second statement claim otherwise refused aspect application 2 pleading master second statement claim third statement claim filed following master order plaintiff provide better particular respect paragraph 24 hearing appeal counsel made submission respect third statement claim third statement claim amongst thing inserted annexure schedule cash withdrawal eftpos payment made mr atkinson saving account period 1 march 2007 30 july 2007 3 annexure annexure b third statement claim referred paragraph 33 4 28 5 29 6 30 7 2001 ukhl 44at 13 14 2001 ukhl 44 2002 2 ac 773at 796 8 1936 hca 41 1936 56 clr 113at 134 9 1936 hca 40 1936 55 clr 499 10 2008 sasc 158 2008 106 sasr 1 11 2010 hca 28 2010 241 clr 118 12 2008 sasc 158at 81 2008 sasc 158 2008 106 sasr 1at 21 13 ibid 21 82 14 ibid 15 2013 sasc 154at 14 18 2013 117 sasr 560at 563 564 566 16 ibid 565 566 17 18 17 2010 hca 28at 58 60 2010 hca 28 2010 241 clr 118at 141 18 ibid 132 25 19 ibid 20 ibid 130 21 132 26 three river district council v bank england 3 2003 2 ac 1at 260 94 95 21 1936 hca 41 1936 56 clr 113at 134 dixon j 22 28 23 1936 hca 40 1936 55 clr 499at 504 505 dixon evatt mctiernan jj
Australian Bakels (Pty) Ltd T_A Bakels [2023] FWCA 2841 (5 September 2023).txt	australian bakels pty ltd bakels 2023 fwca 2841 5 september 2023 last updated 6 september 2023 2023 fwca 2841fair work commissiondecisionfair work act 2009s 185 application approval single enterprise agreementaustralian bakels pty ltd bakels ag2023 2930 application approval australian bakels pty ltd awu enterprise agreement 2023food beverage tobacco manufacturing industrycommissioner johnsmelbourne 5 september 2023application approval australian bakels pty ltd awu enterprise agreement 2023 1 application made approval enterprise agreement known theaustralian bakels pty ltd awu enterprise agreement 2023 agreement application made pursuant tos 185of thefair work act 2009 act made australian bakels pty ltd bakels agreement single enterprise agreement 2 satisfied requirement ofss 186 187and188as relevant application approval met 3 however assessment agreement identified agreement silent two national employment standard ne entitlement particular ne entitlement relating parental leave andunpaid emergency service leave community service 4 therefore employee give careful consideration ne assume agreement totality right especially relation subject matter referred 5 noting ne precedence clause clause 1 1 extent clause agreement inconsistent ne impediment approval agreement 6 australian worker union bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 act note agreement cover organisation 7 agreement approved accordance withs 54of act operate 12 september 2023 nominal expiry date agreement 22 september 2026 commissionerprinted authority commonwealth government printer ae521383pr765886
Australian Cinemas Pty Limited v Australian Executor Trustees Limited [2011] FCA 927 (17 August 2011).txt	australian cinema pty limited v australian executor trustee limited 2011 fca 927 17 august 2011 last updated 19 august 2011federal court australiaaustralian cinema pty limited v australian executor trustee limited 2011 fca 927citation australian cinema pty limited v australian executor trustee limited 2011 fca 927parties australian cinema pty limited acn 096 376 920 v australian executor trustee limited acn 007 869 794file number nsd 935 2011judge robertson jdate judgment 17 august 2011catchwords corporation statutory demand application set aside whether formal defect supporting affidavit claim deponent person authority creditor claim supported evidencecorporations statutory demand application vary amount demand offsetting claim substantiated amount whether corporation prevented contract relying claim creditor offsetting claim purpose 459hcorporations statutory demand whether interest accruing date demand may form part substantiated amountlegislation corporation act 2001 cth s 459g 459h 459jfederal court corporation rule 2000 cth retail shop lease act 1994 qld s 18 19 20 43cases cited anz banking group ltd v kamlock pty ltd 1993 fca 186 1993 42 fcr 125appliedblue hill village management liverpool pty limited v babcock brown international pty limited 2009 nswsc 87discusseddeputy commissioner taxation v cye international pty ltd 2 1985 10 aclr 305appliedeyota pty ltd v hanave pty ltd 1994 12 acsr 785appliedgilbert ash northern limited v modern engineering bristol limited 1974 ac 689distinguishedjem development pty limited v hansen yuncken pty ltd 2006 nswsc 1308 2006 205 flr 432discussedjem development pty limited v hansen yuncken pty ltd 2006 nswsc 1378 2006 60 acsr 393referred tojohn shearer limited v gehl company 1995 fca 1789 1995 60 fcr 136citednorman matter forest enterprise limited v fea plantation limited 2011 fcafc 99citedozone manufacturing pty limited v deputy commissioner taxation 2006 sasc 91 2006 94 sasr 269citedpearson product pty limited v c p technology pty limited 1999 nswsc 575citedrawson v samuel 1841 cr ph 161 1841 41 er 451citedre morris catering australia pty limited 1993 11 acsr 601appliedrenaissance holding pty ltd v kennedy 1998 nswsc 596 1998 16 aclc 1 108 appliedtopfelt pty ltd v state bank new south wale ltd 1993 fca 589 1993 47 fcr 226applieddate hearing 4 august 2011date last submission 11 august 2011place sydneydivision general divisioncategory catchwordsnumber paragraph 74solicitor plaintiff mr j b mccooe mccooe raf poolecounsel defendant mr l katsinassolicitor defendant teddington legalin federal court australianew south wale district registrygeneral divisionnsd 935 2011between australian cinema pty limited acn 096 376 920plaintiffand australian executor trustee limited acn 007 869 794defendantjudge robertson jdate order 17 august 2011where made sydneythe court order declares substantiated amount demand 27 795 51 demand varied accordingly demand effect varied date demand served plaintiff time compliance statutory demand dated 24 may 2011 extended 14 day 17 august 2011 party bear cost note entry order dealt rule 39 32 federal court rule 2011 federal court australianew south wale district registrygeneral divisionnsd 935 2011between australian cinema pty limited acn 096 376 920plaintiffand australian executor trustee limited acn 007 869 794defendantjudge robertson jdate 17 august 2011place sydneyreasons judgmentintroductionthis application underss 459g 459hand459jof thecorporations act 2001 cth corporation act relation creditor statutory demand payment debt dated 24 may 2011 48 342 55 rent outstanding plus interest amount 845 52 application dated 15 june 2011 dispute plaintiff defendant existence amount debt plaintiff independent cinema exhibitor operates business known nerang cinema retail shop premise shopping centre complex known earle plaza 52 price street nerang gold coast queensland plaintiff occupation premise since november 2003 defendant acquired shopping centre complex premise situated approximately mid march 2007 completed sale property approximately mid march 2011 seems defendant longer owner shopping centre complex lessor plaintiff company plaintiff relied affidavit robert bailey affirmed 15 june 2011 defendant relied affidavit mark christian walsh sworn 28 june 2011 affidavit read without objection neither deponent cross examined plaintiff claimed retaining original numbering punctuation creditor statutory demand payment debt dated 24thmay 2011 set aside alternatively determination substantiated amount demand pursuant tosection 459hof thecorporations act 2001 order extending time compliance creditor statutory demand payment debt dated 24thmay 2011 time 14 day following final determination applicationcosts andsuch order honourable court deems fit issue claim statutory demand set aside offsetting claim question interest accruing date demand claim statutory demand set asidethe claim statutory demand set aside may disposed shortly pressed reference tos 459j 1 b provides court may set aside demand satisfied reason demand set aside reason demand set aside submitted form affidavit made 24 may 2011 accompanying statutory demand deponent mark christian walsh declared affirmed authorised officer creditor australian executor trustee limited named statutory demand affidavit accompanies relating debt owed company australian cinema pty ltd 2 duly authorised creditor make affidavit behalf submission referred affidavit deponent sworn 28 june 2011 annexed true copy authority respondent authorising swear affidavit behalf authority dated 28 june 2011 post dated month affidavit accompanying statutory demand stated part australian executor trustee limited hereby authorises mark christian walsh sign document swear affidavit listed sic respect recovery debt outstanding australian executor trustee limited australian cinema pty limited creditor statutory demand payment debt dated 24 may 2011 b affidavit accompanying demand sworn mark christian walsh 24 may 2011 submitted authority document showed mr walsh person authority creditor within r 5 2 b thefederal court corporation rule 2000 take authority dated 28 june 2011 implication mr walsh person authority creditor affirmed affidavit accompanying statutory demand 24 may 2011 implication would contrary express statement mr walsh affidavit affirmed 24 may 2011 relevant part set noted mr walsh cross examined submission fails reject claim statutory demand set aside offsetting claimthe plaintiff submitted offsetting claim claim broken four subject matter case invoice annexed mr bailey affidavit first related plaintiff 22 june 2010 march 2011 repairing replacing air conditioning equipment said property defendant responsibility defendant maintain second respect period 22 june 2010 march 2011 repairing replacing fire equipment said property defendant responsibility defendant maintain third category respect repair ceiling retail premise following air conditioning pump failure fourth last category plaintiff said required carry repair work candy bar following work carried defendant satisfy local council requirement relating grease trap serviced defendant property claim abandoned plaintiff lost earnings result inability operate coffee shop due plumbing work carried defendant respect grease trap allowing invoice respect claim abandoned live claim grouped subject matter air conditioning 886 60 508 20 352 00 704 00 1 109 08 155 10fire equipment 65 83 1 012 00 2 115 30 7 134 60 470 25 782 10 1 435 50water damage 3 300 00grease trap 671 00 396 00 295 00the total offsetting claim therefore 21 392 56 inre morris catering australia pty limited 1993 11 acsr 601at 605 morris catering australia thomas j said little doubt div 3 prescribes formula requires court ass position party preserve demand seen genuine dispute sufficient genuine offsetting claim say court examine merit settle dispute specified limit court examination ascertainment whether genuine dispute whether genuine claim often possible discern spurious identify mere bluster assertion beyond perception genuineness lack court function helpful perceive one party likely succeed eventual state account party likely one result another essential task relatively simple identify genuine level claim likely result identify genuine level offsetting claim likely result ineyota pty ltd v hanave pty ltd 1994 12 acsr 785at 787 mclelland cj eq said however necessary consider meaning expression genuine dispute occurs 450h opinion expression connotes plausible contention requiring investigation raise much sort consideration serious question tried criterion arises application interlocutory injunction extension removal caveat mean court must accept uncritically giving rise genuine dispute every statement affidavit however equivocal lacking precision inconsistent undisputed contemporary document statement deponent inherently improbable may sufficient prima facie plausibility merit investigation truth cfeng mee yong v letchumanan 1980 ac 331at 341 patently feeble legal argument assertion fact unsupported evidence cfsouth australia v wall 1980 24 sasr 189at 194 honour stated agreement approach inre morris catering australia note although question construction may determined court court generally speaking decide contested issue law contested issue fact deciding whether genuine dispute exists present case defendant submitted short answer flowing term lease entirety offsetting claim particular attention drawn clause 2 1 lease payment annual rentthe tenant pay rent free exchange deduction set counterclaim abatement landlord landlord requires defendant also relied cl 2 6 lease following term right set tenant obligation pay rent right landlord rent absolute unconditional subject abatement reduction set defence counterclaim recoupment b rent continue payable event manner time provided lease unless obligation pay terminated express provision lease submission behalf defendant advanced reliance onjem development pty limited v hansen yuncken pty ltd 2006 nswsc 1308 2006 205 flr 432 jem development argument put accepting offsetting claim present case founded lease executed 11 december 2007 lessor defendant lessee plaintiff contractual stipulation intended segregate particular debt amount claimed rent offsetting claim relation lease arising plaintiff occupation premise could brought injem development jempacwere property developer proprietor site wollongong january 2004 jempac entered building contract hansen yuncken pty limited hy hy builder construct building site mid 2004 several claim made hy extension time disruption cost hy jempac agreed resolve difference concerning claim executed deed dated 18 june 2004 deed provided consideration jempac paying hy sum 500 000 00 referred bonus payment addition contract sum hy withdrew claim jempac including particular claim made april 2004 hy released jempac claim may connection building contract project date deed clause 2 deed provided principal agreed pay contractor bonus 500 000 00 addition contract sum bonus would rank priority entitlement principal receive monies connection project deed june 2004 intended replace building contract practical completion occurred 3 november 2005 hy took view sum 500 000 00 fallen due settlement deed 2 january 2006 claimed payment notwithstanding dispute alleged defective work delay hy issued statutory demand dated 22 march 2006 jempac solicitor asserted jempac offsetting claim hy defective incomplete work liquidated damage asserted offsetting amount substantially excess 500 000 00 hy solicitor responded drawing attention cl 2 1 2 bonus rank priority entitlement principal receive monies connection project reliance ongilbert ash northern limited vmodern engineering bristol limited 1974 ac 689at 722 723 per lord salmon austin j held good reason denying effect contractual stipulation intended segregate particular debt prevent reduced debt owing creditor debtor counter claim debtor creditor thus b enter contract agree stated circumstance pay b 500 000 without deduction debt b may owe claim may b payment 500 000 fall due payable matter contractual stipulation prevented reducing payment obligation reference counter debt counter claim b make statutory demand 459e payment 500 000 prevented contract relying claim b offsetting claim purpose 459h emphasis added context ofgilbert ash northern limitedand lord salmon dictum statute statute dealing winding corporation instead case concerned general law right party alter lord salmon referred ordinary right set injem developmentsaustin j concluded 41 cl 2 1 2 settlement deed effect jempac obligation pay 500 000 00 eliminated reduced reference entitlement jempac receive monies connection project afortiori reference claim jempac hy connection project court held view term cl 2 1 2 jempac claim damage delay defective work could offset claim cl 2 payment 500 000 00 therefore jempac offsetting claim purpose 459h difficulty approach view definition offsetting claim in 459h 5 addressed injem developmentsexcept one sentence emphasised recalled however offsetting claim defined mean genuine claim company way counterclaim set cross demand even arise transaction circumstance debt demand relates related matter referred judgment austin j given day later reported asjem development pty limited v hansen yuncken pty ltd 2006 nswsc 1378 2006 60 acsr 393where 7 honour said plaintiff intended argue appeal contractual stipulation purporting quarantine particular debt reduction counterclaim set however clear specific may prevent court concluding contractual counterpart offsetting claim 459h based broad definition offsetting claim 459h 5 decision asjohn shearer limited v gehl company 1995 fca 1789 1995 60 fcr 136 pearson product pty limited vc p technology pty limited 1999 nswsc 575andozone manufacturing pty limited v deputy commissioner taxation 2006 sasc 91 2006 94 sasr 269 appear however matter ultimately went judgment court appeal jem developmentswas applied inblue hill village management liverpool pty limited v babcock brown international pty limited 2009 nswsc 87 blue hill village management case commercial list proceeding supreme court trial judge proceeding indicated view plaintiff pay cost thrown away reason amendment indemnity basis fixed amount could either reached agreement basis court fixing minimum amount payable forthwith defendant solicitor wrote solicitor plaintiff commercial list proceeding confirming client prepared accept payment 70 000 00 plaintiff minimum amount cost payable forthwith remainder cost payable plaintiff first second defendant indemnity basis determined cost assessor agreed party later date defendant plaintiff agreed plaintiff would pay defendant 70 000 00 forthwith barrett j held context left room doubt 70 000 00 paid adjudication principal claim commercial list proceeding regardless pendency claim outcome proceeding reason separation 70 000 00 requirement payment forthwith contention right set correct 70 000 00 would payable determination commercial list proceeding would entirely defeat purpose court direction cost party agreement based court made clear commercial list proceeding general rule timing payment underr 42 7 theuniform civil procedure rule 2005was apply agreed amount honour accept avenue available case non payment 70 000 00 intended stay commercial list proceeding intention quite clearly defendant right payment agreed sum forthwith recovery accordingly available barrett j held particular circumstance case right set principal claim commercial list proceeding separate immediate obligation pay 70 000 00 payable forthwith plaintiff made case offsetting claim within 459h 1 b decision supreme court new south wale terminology intention provision offsetting opinion clearer case reason hold party made special arrangement would distinguish fact special arrangement separate lease seems likely clause lease intended relevant application lease principle equitable set accordance withrawson v samuel 1841 cr ph 161 178 179 1841 41 er 451 458 459 recently considered innorman matter forest enterprise limited v fea plantation limited 2011 fcafc 99 limit circumstance court might find cross claim impeached title demand rent present case however need resolve either question construction raised byjem developmentsorblue hill village managementor whether case distinguished fact operation theretail shop lease act 1994 qld retail shop lease act party accepted act applicable present premise following provision theretail shop lease actare relevant act duty imposed entitlement conferred lessor lessee retail shop lease duty entitlement taken included lease provision retail shop lease void purport exclude application provision act applies lease provision act inconsistent provision retail shop lease provision act prevails provision lease void extent inconsistency plaintiff relied onss 43 1 c and43 1 theretail shop lease actwhich follows 43 1 lessor liable pay lessee reasonable compensation loss damage suffered lessee lessor person acting lessor authority b c cause significant disruption lessee trading leased shop take reasonable step prevent stop significant disruption within lessor control rectified soon practicable breakdown plant equipment lessor care maintenance thus specified circumstance enlivened right compensation may modified agreement least arguable prevails term cll 2 1 2 6 present lease view insufficient factual material enlivens 43 1 c lessor person acting lessor authority caused significant disruption lessee trading leased shop take reasonable step prevent stop significant disruption within lessor control provision suggests event series event occurred insufficient factual material evidence issue presently arise unders 43 1 theretail shop lease actare first whether breakdown plant equipment second whether plant equipment lessor care maintenance third whether lessor breakdown rectified soon practicable turn claimed category said constitute offsetting claim claim reference tos 43 1 understood subject thejem developmentspoint considered defendant conceded offsetting claim respect grease trap leaf detailed consideration air conditioning issue fire equipment issue water damage issue air conditioningmr bailey affidavit stated plaintiff repaired replaced number occasion 22 june 2010 march 2011 air conditioning equipment property defendant responsibility defendant maintain defendant rectified soon practicable notification break paragraph affidavit stated plaintiff prohibited carrying business without proper functioning air conditioning defendant evidence point effect tax invoice plaintiff relied maintenance work responsibility plaintiff pursuant lease clause 4 5 lease provided maintenance cost air conditioning unit servicing premise responsibility tenant landlord responsible cost repairing replacing air conditioning equipment property landlord clause 5 6 lease also referred provided except otherwise provided lease tenant interfere air conditioning equipment without first obtaining consent writing landlord mr walsh deposed plaintiff obtain defendant prior consent also denied plaintiff lessee notified defendant fault air conditioning equipment view plaintiff genuine claim defendant respect air conditioning equipment claim founded in 43 1 theretail shop lease act breakdown sufficient evidence equipment lessor care arguable case time requirement rectification lessor depends detailed examination surrounding fact circumstance militate genuineness claim soon practicable element prior notification fault invoice contemporaneous attack made either authenticity mr bailey veracity fire equipmentthe plaintiff evidence effect number occasion 22 june 2010 march 2011 plaintiff repaired replaced fire equipment property defendant responsibility defendant maintain defendant rectified soon practicable notification breakdown said plaintiff prohibited carrying business without proper functioning fire protection equipment including emergency lighting defendant evidence plaintiff obtain prior consent writing carrying work also said relevant tax invoice previously provided operating expense payable plaintiff pursuant lease work required enable plaintiff comply obligation fire safety lease work necessary due plaintiff use premise defendant relied cl 4 9 lease provided lessee would responsible operating expense including limited electricity air conditioning maintenance cleaning waste removal grease trap cleaning cost telephone charge leased premise defendant also relied cll 5 3 5 14 lease provided tenant duly punctually comply observe statute order ordinance regulation law relating premise tenant use occupation premise complex tenant time use premise comply requirement insurance council australia metropolitan fire brigade board law regulation time force relating fire provision every relevant statute regulation ordinance view plaintiff genuine claim arising froms 43 1 theretail shop lease actin relation fire equipment satisfied requisite degree breakdown plant equipment plant equipment lessor care maintenance lessor breakdown rectified soon practicable militate genuineness claim soon practicable element prior notification fault evidence defendant equivocal point relation fire equipment claim water damagemr bailey deposed plaintiff required repair ceiling retail shop premise following air conditioning pump failure resulted build water pump reservoir leaked ceiling causing damage ceiling defendant relied cl 8 3 lease plaintiff indemnified defendant respect action claim demand loss damage cost expense defendant may incur respect arising amongst thing overflow leakage water including rain water premise originating within premise caused contributed act omission plaintiff view plaintiff genuine claim unders 43 1 theretail shop lease act satisfied requisite degree breakdown plant equipment air conditioning pump lessor care maintenance lessor breakdown rectified soon practicable accept unsatisfactory email correspondence february 2011 view sufficient basis conclude damage flow breakdown faulty air conditioning pump located ceiling building thus breakdown plant equipment defendant care maintenance sufficiently clear cl 8 3 lease applied water air conditioner would operate according term light provision theretail shop lease acti set summarythere arguable question claim concerning whether defendant breakdown rectified soon practicable purpose ofs 43 1 theretail shop lease act total offsetting claim therefore 21 392 56 interest accruing date demandthe defendant submitted factored substantiated amount interest accruing date demand authority show interest claimable authority includedeputy commissioner taxation v cye international pty ltd 2 1985 10 aclr 305at 306 anz banking group ltd v kamlock pty ltd 1993 fca 186 1993 42 fcr 125at 126 topfelt pty ltd v state bank new south wale ltd 1993 fca 589 1993 47 fcr 226at 241 242 andrenaissance holding pty ltd v kennedy 1998 nswsc 596 1998 16 aclc 1 108 1 110 statutory demand make claim interest accruing date demand liable set aside basis equally interest form part substantiated amount could subject statutory demand 459e would amount due payable conclusion hearing light authority referred 69 defendant abandoned claim conclusionacting 459h 4 substantiated amount least great statutory minimum vary demand indicated declare demand effect varied date demand served company also 459f 2 extend time compliance statutory demand dated 24 may 2011 14 day date judgment cost plaintiff failed claim statutory demand set aside also abandoned substantial part offsetting claim party broadly even measure success bear cost certify preceding seventy four 74 numbered paragraph true copy reason judgment herein honourable justice robertson associate dated 17 august 2011
Spiro Naumovski - and - Neil Temple Scott _IV Entertainment Pty Ltd [1999] WAIRComm 313 (24 December 1999).txt	spiro naumovski neil temple scott iv entertainment pty ltd 1999 waircomm 313 24 december 1999 western australian industrial relation commissionindustrial relation act 1979spiro naumovski neil temple scott iv entertainment pty ltd 1285 1998 commissioner j f gregor 24 december 1999reasons decisionthe commissioner 8 july 1998 spiro naumovski applicant applied commission order pursuant tosection 29of theindustrial relation act 1979 act applicant claimed entitled benefit order award commission unfairly dismissed applicant based claim contract employment neil temple scott iv entertainment pty ltd respondent detail claim contractual benefit provided application however set schedule particular contractual benefit becameexhibit b1 total applicant claim payment 1 276 06 hour work conducted 73 rupert street subiaco 230 marine parade cottesloe yanagan crescent boronia street city beach club premise 78 james street northbridge final form schedule sought payment 16 125 00 additionally applicant claim unfairly dismissed 11 june 1998 respondent demanded club key applicant allegedly failed correctly place bar mat matter heard commission period six 6 day commencing 6 may 1999 completing 26 november 1999 time matter reserved decision hearing time dealt evidence concerning alleged contractual benefit claim evidence party regarding unfair dismissal relatively short reason decision disclose claim unusual intend summarise evidence concerning contractual benefit claim reason become clear later rather summarising evidence overview applicant respondent relationship sufficiently contextualises reason decision respondent operated nightclub perth early 1980 applicant met respondent friend introduced potential glass collector respondent nightclub approximately 18 year age respondent contends applicant wished become involved nightclub industry first met respondent asserted applicant passion succeeding year applicant worked respondent developed social friendship respondent claim became good friend interested applicant career aspiration respondent suggested applicant become involved brick paving taught trade providing advice required whilst involved brick paving business applicant work full time respondent club association continued respondent nightclub burnt september 1993 applicant respondent relationship renewed social basis time respondent friend decided redevelop nightclub respondent evidence contends club redeveloped combination voluntary paid work conducted employee friend applicant working asphalt company helped redeveloped club using building skill required according respondent changed applicant advised left asphalt company wanted work respondent respondent claim better judgement offered applicant work club respondent assumed applicant believed leaving asphalt company committed respondent respondent asserted applicant asked perform skilled tradesman work claimed schedule particular contractual benefit respondent object claim schedule numerous ground well particular although applicant assist respondent others occasion never asked work nature described schedule particular contractual benefit respondent discovered applicant left asphalt company employ wanted work respondent rather lost driver licence unable fulfil contract service prior opening club respondent asked applicant become approved manager pursuant licensing act due series criminal conviction applicant unsuitable respondent claim applicant became demoralised began loafing around club receive stock properly refused learn cocktail general bar etiquette causing worker complain applicant conduct applicant contends threw work club involving long hour responsible position applicant denied problem worker denied without authorisation removed money till unable balance till cross examination applicant admitted taken drug socially respondent respondent contended advised applicant stop consuming illegal substance june 1998 respondent discovered applicant incorrectly placed bar mat asked done applicant replied much pressure respondent gave applicant week break asked return key without complaint applicant visited club collect possession altercation respondent believed end matter expected applicant come back work week applicant apologised respondent considered would well applicant contends worked almost 24 hour straight required sleep however respondent telephoned another part club asking applicant collect bar mat put bar admits put upside applicant left club slept returned club time respondent sleeping upstairs applicant private phone call respondent started abuse came downstairs told applicant take shoe walk mat applicant identified mat upside turned right way respondent demanded applicant surrender key directed go upstairs collect belonging respondent continued abuse respondent rang later day advising forgotten toolbox piece equipment applicant thought respondent playing emotion considering year hard work applicant believed dismissed thrown street applicant saw respondent next attended function club tradesman applicant asked respondent relationship really response could back three month time sufficient summary relevant event matter commission heard evidence behalf applicant mr cyril bourseau mr bourseau worked club applicant manager applicant organised roster time engaged carpentry painting cleaning activity thought applicant worked long hour unable state money paid applicant mr bourseau aware occasion till balance however hear respondent complaining money stolen similarly mr bourseau hear respondent complain use dealing amphetamine club mr dimice petrovski worked club part time gave evidence commission mr petrovski originally resigned respondent employ whilst working hyperdrome club burnt 1993 paid correctly involved rebuilding club saw applicant working club carting brick sand steel aware applicant respondent agreed applicant would continue working club opened seen respondent using drug regularly mr ian alexander gave evidence respondent registered plumber gas fitter worked club properly paid asserted work mentioned schedule particular contractual benefit fact done mr alexander asserted carry work claimed applicant would take le time respondent called applicant mother m vera naumovska give evidence m naumovska evidence need summarised respondent called mother m justine ellen scott give evidence m scott late husband assisted respondent nightclub engaged stocktaking collection delivery stock attended bar safe accounting requirement mr scott claimed applicant tried incapable need deal finding concerning witness credibility applicant evidence related contractual benefit claim schedule set inexhibit b1is extensive created year work completed contemporaneous record work done hour applicant difficulty relying memory many response cross examination flippant prepared reduce claim half three quarter original claim evidence appear reliable find discount evidence clearly remembers event surrounding termination respondent support applicant contention however emphasis different deal conclusion dealing later reason decision treat evidence mr bourseu mr petrovski caution inconsistency examination chief cross examination similar doubt respondent evidence respondent appears selective memory influenced respondent action resulting delaying proceeding respondent explanation dubious evidence contradictory usefulness applicant respondent evidence questionable potentially unreliable similarly credibility information provided low rely evidence given others analyse circumstance decide balance probability occurred mr alexander evidence evidence complete confidence clearly articulated memory event disturbed cross examination intimidated circumstance giving evidence importantly assist determining version event balance probability correct initially deal contractual benefit head claim application instituted pursuant sub section 29 b act senior commissioner fielding observed inglen robert bartlett v indian pacific limited 319 1998 9868 waig 2509at 2519that commission relevant jurisdiction pursuant theindustrial relation act enforce benefit owed contract employment therefore commission must ascertain benefit specified contract question legal document contract meaning scope determined legal principle contract law requirement full bench decision inreginald simon v business computer international pty ltd1985 65 waig 2039 learned acting president observed jurisdiction founded proceeding brought undersection 29 b ii act judicial arbitral legislative act limit jurisdiction ascertaining existing right determination whether employee denied benefit benefit award order employee entitled contract service situation contract made award order commission case negotiation led formation first place exhaustive remedy apply resolution every conceivable incident although commission jurisdiction judicial may grant relief aggrieved party right obligation fairly implied necessary rely widely upon expressed written term another term may implied seebryne v australian airline 1995 hca 24 131 alr 422and privy counsel inbp refinery westernport pty ltd v hastings shire council 1978 52aljr 20 bp westernport case high court incodelfa construction pty ltd v state rail authority new south wale 1982 hca 24 1982 56 aljr 459 applicant contention term ought implied contract weak applicant argument worked respondent 73 rupert street subiaco 230 marine parade cottesloe yanagan crescent boronia street city beach club premise 78 james street northbridge hallmark product imagination validly created contract applicant assertion detail offer acceptance consideration contemporaneous record work completed presented commission similarly applicant detail work took place original application even identify claim appears constructed post filing application unclear whether applicant asserts contract respondent work property alternatively individual contract respondent relating property evidence arrangement made rate payment length time taken complete task provision tool completion pre construction preparation unable determine identifiable contract formed party mr hooker concession concerning applicant difficulty pursuing claim indicative said overtime claim made absence documentation evidence oral arrangement required prove contract formed requiring respondent pay applicant work done even wrong accept mr alexander evidence applicant work claimed least work mr alexander worked cast doubt upon whole claim commission may give effect contract award order commission term established commission preforming judicial act permissible determine new right party function 29 b ii act case unfair dismissal act enables employee seek relief harshly oppressively unfairly dismissed determining commission applyundercliff nursing home v federated miscellaneous worker union australia 1985 65 waig 385 issue whether employer acted harshly unfairly oppressively dismissal amounting abuse employee right determining whether abuse occurred denning mr comment inbritish leyland uk ltd v swift 1981 10 irlr 91are relevant discussing reasonable employer would acted denning mr said must remembered circumstance band reasonableness one employer might take one view one quite reasonably take another view additionally kennedy j theshire esperance v mouritz 1991 71 waig 891stated procedure important resolution alleged unfair dismissal claim determined solely legal entitlement highlighted albeit slightly different term dish decision reason nicholson j fair hearing element determining whether dismissal harsh unjust mere fact employee proper opportunity explain warn possibility termination automatically entitle applicant remedy injustice result employer could justifiably dismissed president rowland j issue dishonesty basis dismissal remains undetermined unfairness dismissal cannot therefore determined procedural unfairness alone likely set event led applicant service terminated follows respondent asked applicant working extended period move bar mat applicant however placed mat upside respondent discovered upside mat angry respondent believed applicant pressure paying attention small matter club respondent demanded applicant take shoe stand mat whilst unnecessary indicates respondent state mind agitated swearing applicant respondent demanded applicant key told leave club genuinely believed applicant needed week applicant would need take belonging respondent final submission clearly indicates believed job finished said felt apologised confronting way apologise asked could job back said well maybe show really want really like required applicant demonstrate commitment employment accept two week later respondent told applicant might get job three month respondent clearly dismissed applicant fundamental issue concerning bar mat trivial evidence suggest one many incident respondent took issue applicant respondent contends relationship applicant avuncular nature workmate social friend spent lot time together used drug recreationally respondent say dismissal ought judged contextually however commission required decide whether dismissal harsh unjust unreasonable accordance fair go round test established inloty holloway v australian worker union 1971 ar 95at 99 regardless prior event fair go round established applicant dismissed heat moment circumstance respondent could justify reason find applicant unfairly dismissedfor reason set concerning party relationship patently clear commission could order reinstatement complete breakdown relationship attempt restore would futile commission considers question compensation applicant legal entitlement loss injury caused dismissal pursuant 23 ii ba act described full bench inbogunovich v bayside western australia pty ltd 9979 waig 8and 10 loss injury may include hurt distress loss dignity anxiety pursuant section 23a 1 act payment adequate notice need considered counsel applicant claimed sum 5 000 00 humiliation anxiety distress similar award made full bench inbogunovich v bayside western australia pty ltd although medical evidence called support applicant contention humiliated distressed suffer anxiety distress result dismissal amount compensation claimed head injury reasonable given full bench determination inrogers v leighton contractor pty ltd full bench 1 november 1999 unreported honour consideration fact similar nature awarded 2 000 appropriate case award 2 000 00 applicant ought given notice dismissal applying test detailedantonio carlo tarozzi v wa italian club 1991 71 waig 2499 two week pay paid awarded 1 500 00 notice reject balance claim concerning outstanding overtime contractual benefit note evidence led loss observed inrogers v leighton contractor pty ltd ibid entitlement loss matter proof absence proofno compensation awarded matter concluded commission issuing order applicant unfairly dismissed respondent 11 june 1998 tenable order reinstatement compensation fixed 4 500 00 awarded counsel applicant made submission concerning cost carefully considered submission concluded test contained inbrailey v mendex 1993 73 waig 27have met circumstance extreme inappropriate cost awarded appearance m buckley counsel later mr r hooker counsel appeared applicantthe respondent appeared behalf save appearance concerning procedure mr ayres counsel later mr edward counsel
Matenson & Matenson [2019] FCCA 3912 (11 December 2019).txt	matenson matenson 2019 fcca 3912 11 december 2019 last updated 4 june 2020federal circuit court australiamatenson matenson 2019 fcca 3912catchwords family law father filed notice discontinuance undefended hearing practice procedure exercise discretion procedural fairness oral testimony required cross examination permitted matter proceed way submission leave granted father make submission undefended hearing legislation family law act 1975 102nafederal circuit court rule 2001 cth rr 13 01 13 02family law rule 2004 cth pt 10 2cases cited leone cino 2016 famcafc 224cao trong 2019 famca 336tate tate 2000 famca 1040zane allan 2008 famcafc 115chranley v smart 2012 famcafc 87 2012 47 fam lr 581applicant mr matensonrespondent m matensonfile number brc 2083 2017judgment judge howardhearing date 11 december 2019date last submission 11 december 2019delivered brisbanedelivered 11 december 2019representationthe applicant attended self represented litigantsolicitors respondent cornerstone law officessolicitors independent child lawyer tlg lawordersthe court order order 1 matter set undefended hearing commencing at9 30a on19 february 2020in federal circuit court australia brisbane 2 party permitted cross examine witness undefended hearing matter 19 february 2020 3 19 february 2020 matter shall proceed way submission father granted leave make submission relation making final order matter 4 addition oral submission made 19 february 2020 party shall also permitted rely written outline submission desire 5 later than4 00pmon12 february 2020 party independent child lawyer shall file serve case summary document maximum three 3 page state follows material party seek rely b brief chronology relevant history matter c issue dispute outcome sought party relation issue noted publication judgment pseudonymmatenson matensonis approved pursuant tos 121 9 g thefamily law act 1975 cth federal circuit courtof australiaat brisbanebrc 2083 2017mr matensonapplicantandms matensonrespondentreasons judgmentex temporethese reason delivered ex tempore 11 december 2019 settled corrected grammatical error order convey precise intention court matter court quite long relatively complex history matter determination today question future progress matter participation various party litigation day forward matter came court october 2019 apparent needed chance party provide submission relation course court adopt progress matter particular note reason determination required father applicant proceeding filed notice discontinuance 1 october 2019 noting done court sought submission party relation whether father permitted take part proceeding essentially broad term extent court subsequently made following order 11 october 2019 court note applicant father filed notice discontinuance 1 october 2019 court order order 1 later 4 00pm 18 october 2019 party applicant father respondent mother independent child lawyer shall file serve written submission relation following manner conduct proceeding including whether applicant father permitted take part proceeding ii applicant father take part proceeding permitted cross examine respondent mother witness iii applicant father permitted cross examine respondent mother extent doe 102naof thefamily law act 1975apply cross examination respondent mother applicant father andiv applicant father permitted take part proceeding whether applicant father permitted make submission relation order sought respondent mother independent child lawyer b whether would appropriate hear outstanding issue matter way written submission paper circumstance father permitted provide written submission responding order sought respondent mother independent child lawyer 2 party applicant respondent independent child lawyer required attempt writing reach agreed position relation manner conduct proceeding 3 independent child lawyer cost reserved 4 matter remain listed final hearing three 3 day commencing 10 00am 11 november 2019 federal circuit court australia brisbane noted b upon receiving submission pursuant paragraph 1 order court may consider listing matter mention court received submission independent child lawyer father mother start independent child lawyer submission mother similar effect submitted essence father filed notice discontinuance permitted take part proceeding noted written submission provided independent child lawyer lawyer mother relation aspect noted case referred includingleone cino 2016 famcafc 224 case made reference primary judge decision primary judge referred torule 10 11 3 thefamily law rules2004
Wood v Maroondah CC [2022] VCAT 83 (8 February 2022).txt	wood v maroondah cc 2022 vcat 83 8 february 2022 last updated 9 february 2022victorian civil administrative tribunalplanning environment listvcat reference p371 2021permit application 2020 842catchwordssection 77of theplanning environment act 1987 maroondah planning scheme general residential zone schedule 1 significant landscape overlay 4 two dwelling removal vegetationapplicantcasey woodresponsible authoritymaroondah city councilrespondentspaul joseph monkssubject land7 sandgate avenuecroydon vic 3136hearing typehearingdate hearing15 october 2021date interim order17 january 2022date order8 february 2022citationwood v maroondah cc 2022 vcat 83orderamend permit application1 pursuant clause 64 schedule 1 thevictorian civil administrative tribunal act 1998 permit application amended substituting permit application plan following plan filed tribunal prepared transcend building design service pty ltddrawing number sheet 1 4 2 4 3 4 4 4 dated 24 august 2021 reference 19376 tp rev bno permit granted2 application p371 2021 decision responsible authority affirmed 3 planning permit application 2020 842 permit granted juliette hallidaymemberappearancesfor casey woodsimon skinner planning consultant planning sense mr skinner called following witness mr robert thomson landscape architect habitatfor maroondah city councilmichelle wang statutory plannerfor paul joseph monksmr monk appeared personfor roy loraine hampsonmr mr hampson appeared personinformationdescription proposalconstruction two double storey dwelling removal three existing tree land nature proceedingapplication undersection 77of theplanning environment act 1987 review refusal grant permit planning schememaroondah planning schemezone overlaysgeneral residential zone schedule 1 grz1 significant landscape overlay schedule 4 slo4 permit requirementsclause 32 08 6 construction two dwelling grz1clause 42 03 2 removal vegetation slo4land descriptionthe land located west side sandgate avenue melton grove binbrook drive land rectangular shape frontage sandgate avenue 18 29 metre depth 47 24 metre overall area 864 square metre land improved single storey brick dwelling tiled hipped roof single storey bungalow rear driveway carport located along southern boundary land secluded private open space located rear house fenced separate secluded private open space house bungalow several canopy tree land including sweet gum located adjacent northern boundary approximately 15 metre height red flowering gum purple plum lilly pilly smooth barked apple tree grows nature strip front land north 9 sandgate avenue single storey brick dwelling hipped tiled roof carport driveway located along southern boundary rear land also abuttal along northern boundary 1 melton grove improved single storey brick dwelling tiled hipped roof west 2 luton court single storey brick dwelling tiled hipped roof rear secluded private open space abuts land several canopy tree including lemon scented gum 15 metre height south 5 sandgate avenue single storey brick house hipped tiled roof driveway carport along common boundary land private open space rear includes several outbuilding canopy tree opposite land east lipscombe park reserve tribunal inspectionan unaccompanied inspection carried hearing reason 1 proceeding 1 application brought casey wood applicant unders 77of theplanning environment act 1987 act seeking review decision maroondah city council council refuse grant permit removal vegetation development land 7 sandgate avenue croydon land 2 proposal construction two dwelling council refused application basis proposal contrary relevant residential neighbourhood character policy relevant objective grz1 slo4 apply land andobjectives standard clause 55 maroondah planning scheme scheme including regarding neighbourhood character landscaping 3 amongst thing applicant submits proposal respect preferred character area consistent objective slo4 objective scheme regarding landscaping also submits proposal meet objective standard clause 55 scheme cause detrimental impact amenity adjoining property 4 essence respondent submit proposal detrimental impact amenity due impact related visual bulk proposal overlooking also submit removal existing tree land particularly sweet gum back garden land major impact landscape area due removal significant canopy tree 5 considered submission evidence party inspected site surround conclude proposal achieve acceptable planning outcome reason follow proposal site context6 land surround described page 4 decision 7 key element proposal follows two storey dwelling dwelling 1 two bedroom one ensuite walk robe powder room laundry open plan kitchen dining area sunken lounge ground floor level first floor level three bedroom one walk robe ensuite retreat study nook separate room nominated study bathroom balcony facing east towards sandgate avenue accessed retreat ground floor level dwelling 2 double garage accessed dwelling via workshop store located east dining area 198 79 square metre private open space proposed secluded private open space including lap pool deck 87 78 square metre area located north dwelling 1 maximum overall height dwelling 1 approximately 8 48 metre west dwelling 1 two storey dwelling dwelling 2 proposed living room powder room laundry open plan kitchen meal area ground floor level secluded private open space 103 25 square metre located west dwelling accessed living area first floor level dwelling 2 3 bedroom one walk robe ensuite bathroom retreat maximum overall height dwelling 2 approximately 7 18 metre double garage located south dwelling 2 proposed accessed driveway located along southern boundary land contemporary design proposed dwelling split angled roof form material construction proposed include brown grey brick veneer ground floor level lightweight colourbond cladding monument colour timber cladding first floor level aluminium framed window colourbond roof anda permit required removal three existing tree land slo4 sweet gum 15 metre height purple plum 6 3 metre height lilly pilly 11 3 metre height 8 extract ground floor plan north top page east elevation showing dwelling 1 face sandgate avenue set figure 1 2 figure 1figure 29 land located within residential area comprised original 1960s 1970s detached dwelling predominantly single double storey brick hipped tiled roof garage carport along one side boundary front setback generally order nine metre recently constructed single double storey development area including two double storey dwelling 13 sandgate avenue row attached double storey townhouses 2 4 sandgate avenue oriented towards lipscombe reserve 10 low front fence open garden setting common area prevailing landscape character area comprises generously sized front rear garden well established garden mature native exotic canopy tree front rear garden ranging height small tall together mature canopy tree within nature strip tall canopy tree vegetation fringe lipscombe reserve contributes well vegetated landscape setting area 11 land good access transport shopping community facility including lipscombe reserve opposite lipscombe park kindergarten good shepherd lutheran primary school yarra valley grammar school luther college mcadam square shop including grocery store post office pharmacy within walking distance bus route 380 672 located within walking distance plymouth road procedural issue rulings12 mr mr hampson lodged statement ground tribunal although original objector permit application although joined party proceeding gave mr mr hampson opportunity heard unders 98 1 c thevictorian civil administrative tribunal act 1998 pursuant tribunal may inform see fit 13 hearing party given opportunity provide written submission respect implication arising gazettal amendment c130 scheme considered response received council applicant regard planning policy context zoning14 land within grz1 purpose include following implement municipal planning strategy planning policy framework encourage development respect neighbourhood character area encourage diversity housing type housing growth particularly location offering good access service transport 15 schedule grz1 contains modification requirement clause 55 scheme regarding side rear setback front fence height private open space area 80 square metre one part minimum area 60 square metre minimum dimension 5 metre overlay16 land affected slo4 landscape canopy protection statement nature key element landscape follows combination canopy tree steep undulating topography contribute major element urban character maroondah canopy tree particular soften impact building environment provide distinct leafy character maroondah continuous nature canopy vegetation throughout maroondah provides strong character element valued community canopy vegetation defining element urban character maroondah 17 landscape character objective achieved slo4 follows conserve existing pattern vegetation landscape quality ecosystem within area encourage generation vegetation maintain dense vegetation canopy contributes special environmental character maroondah maintain overall scenic beauty municipality state local planning policy18 range state local policy relevant application including following clause 12 05 2 landscape seek protect enhance significant landscape contribute character identity sustainable environment strategy ensuring development detract natural quality significant landscape area clause 15 01 1 urban design seek create urban environment safe healthy functional enjoyable contribute sense place strategy requiring development respond context term character cultural identity surrounding landscape amongst thing clause 15 01 2 building design seek achieve building design outcome contribute positively local context enhance public realm strategy ensuring development responds contributes strategic cultural context location encouraging development retain existing vegetation clause 15 01 5 neighbourhood character seek recognise support protect neighbourhood character cultural identity sense place strategy ensuring development responds local context respecting underlying natural landscape character significant vegetation neighbourhood character value built form reflect community identity clause 16 01 1 housing supply seek facilitate well located integrated diverse housing meet community need strategy facilitating diverse housing offer choice meet changing household need widening housing diversity mix housing type clause 16 01 2 housing affordability amongst thing seek deliver affordable housing closer job transport service strategy improving housing affordability increasing choice housing type tenure clause 21 06 built form urban design amongst thing seek encourage development provides creates high quality urban place strategy ensuring new residential development contributes achieving preferred neighbourhood character neighbourhood area clause 21 07 housing residential land use amongst thing seek protect enhance environment neighbourhood strategy seek ensure new residential development contributes achieving preferred neighbourhood character neighbourhood area enhance area special environmental quality maroondah clause 21 10 natural resource amongst thing seek encourage preservation enhancement natural environment including maintenance clean air water protection canopy vegetation strategy preventing form degradation existing level visual aesthetic amenity 19 clause 22 02 residential neighbourhood character seek ensure maroondah provided diverse sustainable high quality residential environment ensure new residential development contributes maintenance enhancement canopy vegetation maroondah amongst thing policy clause 22 02 3 seek ensure residential development responsive site constraint existing character area anddevelopments make provision planting least one canopy tree private open space dwelling canopy tree grow height exceeds roof height dwelling amongst thing 20 land within neighbourhood area 3 nyora preferred neighbourhood character objective set clause 22 02 3 follows preferred future character achieved ensuring mix dwelling style non dominant building form ensuring dwelling sited accommodate vegetation including indigenous canopy tree ensuring car parking structure manoeuvring area dominate streetscape encouraging low front fence ensuring development adjacent creek parkland responds complement landscape character area 21 themaroondah neighbourhood character studyfrom preferred neighbourhood character objective referred drawn referred policy document clause 22 02 4 scheme key issue 22 consider development two dwelling land consistent purpose grz1 contemplates development achieve broader planning objective facilitating well located diverse housing subject design responding relevant provision scheme including slo4 clause 55 relevantly proposal complies several numeric standard clause 55 overall permeability proposal 62 03 2 exceeds 20 minimum specified standard b9 3 site coverage 37 97 le 60 maximum set standard b8 4 also feature design response respond well provision clause 55 including orientation living area dwelling 1 north minimal overshadowing spos adjoining dwelling equinox 23 however consider positive feature outweighed element proposal view proposed design adequately responded landscape character objective achieved slo4 basis regard submission evidence presented tribunal hearing key issue consideration proposed tree removal acceptable response slo4 relevant policy scheme landscaping proposed appropriate proposed tree removal acceptable response slo4 relevant policy scheme 24 permit required slo4 remove three four tree proposed removal follows tree 7 purple plum tree 6 3 metre height tree 8 sweet gum tree 15 metre height tree 10 lilly pilly 11 3 metre height 25 photo tree extracted arborist report submitted permit application report 5 set figure 3 4 5 figure 3 purple plum tree tree 7 sweet gum tree 8 visible left side imagefigure 4 sweet gum tree tree 8 figure 5 lilly pilly tree 10 26 whilst council oppose individual removal tree 7 8 10 position effect removal tree landscape character area without appropriate replacement landscaping significantly detrimental landscape design driven need conserve maintain dense vegetation canopy rather driven built form determined development vegetation removed significant character environment area proposal allow replanting capacity land capable restoring vegetation coverage facilitate new well considered landscape response capable contributing canopy character area proposed landscaping response drive net negative environmental landscaping impact area landscaping important prominent feature treed canopy valued community evidenced within neighbourhood strengthened development design siting proposed landscaping fails maintain enhance treed environment maroondah 27 amongst thing mr monk submits upper part dwelling 1 2 visible surrounding neighbourhood hole left removal major canopy tree andtree 8 danger failure immediate future stated original arborist report tree suffered damage extreme storm left block without power five day development could work around tree 8 choice made remove tree 8 health really question tree 8 seen surrounding street melton grove luton court removal leave gap existing tree canopy area 28 applicant submits amongst thing whilst existing vegetation within land green leafy make contribution landscape character removal vegetation noticeable short term justification retention based arboricultural principle council environmental planner identified internal referral comment proposed removal tree 7 8 10 land supported basis specimen low retention value poor health structural issue andwhen assessed purpose decision guideline slo4 proposal adopted respectful planning approach landscape environmental value particularly respect generation vegetation maintenance dense canopy maintaining overall scenic beauty municipality 29 report state two larger tree land displayed significant structural deficiency treatable typical arboricultural method also state long term stability tree questionable although significant component landscape retention recommended andtree 8 significant decay main trunk likely infected withbotryosphaeriawith known treatment 6 30 body report table 7 1 arboricultural value purple plum sweet gum tree 7 8 assessed low lilly pilly tree 10 assessed moderate 31 low rated tree assessed body report generally considered worthy retention either small size common specie replaced readily poor vigour required design change outweigh benefit landscape significant structural defect respond arboricultural treatment 7 32 direct contrast statement table table 11 report tree data state purple plum tree 7 good vigour fair structure useful life expectancy 10 20 year moderate arboricultural value andthe sweet gum tree 8 good vigour fair structure useful life expectancy 10 20 year high arboricultural value 33 report describes good vigour tree demonstrating good exceptional growth specie tree enable full canopy foliage minor pest disease problem foliage colour size density typical healthy specimen specie 8 34 report describes high arboricultural value tree high quality good fair condition generally prominent arboricultural feature tree capable tolerating change environment tree potential medium long term component landscape managed appropriately retention tree highly desirable 9 35 report inconsistent respect health arboricultural value sweet gum tree one hand one part report sweet gum assessed significant decay low arboricultural value hand another part report sweet gum tree assessed good vigour minor pest disease problem high arboricultural value useful life expectancy 10 20 year explanation regarding discrepancy 36 accept arboricultural value sweet gum tree high 10 useful life expectancy 10 20 year removal sweet gum inappropriate based high arboricultural value useful life expectancy well value including contribution landscape character tree canopy vegetation area 37 contribution sweet gum tree make surrounding landscape distinct arboricultural value mean even accept arboricultural value low 11 removal tree still inappropriate removal would diminish detract character tree canopy vegetation area context slo4 identifies canopy vegetation defining element urban character maroondah 38 reaching conclusion regarding sweet gum tree taken account inconsistency report regarding sweet gum tree balanced issue surrounding arboricultural value sweet gum tree contribution character environment area based fact circumstance matter persuaded removal sweet gum tree justified basis poor arboricultural value 39 applicant submission acknowledges tree land make contribution landscape consider sweet gum tree significant component character environment area height approximately 15 metre fact canopy seen point around surrounding neighbourhood including standing oval lipscombe park shown photo contained mr monk submission reason consider sweet gum tree contributes landscape environmental quality area 40 acknowledge landscape plan prepared mr thompson proposes planting twelve canopy tree attain height 7 10 metre existing red flowering gum corymbia retained however based fact circumstance matter persuaded removal sweet gum tree consistent purpose slo4 following reason design proposal failed conserve enhance landscape character objective area accommodated retention sweet gum tree sweet gum tree tall canopy tree significant component character environment area due visibility point surrounding neighbourhood removal would detract diminish character tree canopy vegetation area context slo4 identifies canopy vegetation defining element urban character maroondah removal sweet gum tree inconsistent landscape character objective achieved slo4 conserve existing pattern vegetation landscape quality within area maintain vegetation canopy contributes special environmental character area andit maintain overall scenic beauty area 41 failing accommodate retention sweet gum tree design proposal failed respond adequately following provision scheme clause 21 07 2 housing residential land use amongst thing seek ensure new residential development contributes achieving preferred neighbourhood character neighbourhood area enhance area special environmental quality maroondah refer objective 5 relevant strategy clause 21 07 2 clause 22 02 3 residential neighbourhood character seek achieve preferred future character neighbourhood area nyora 3 ensuring dwelling sited accommodate vegetation including canopy tree amongst thing clause 21 10 2 natural resource amongst thing seek encourage preservation enhancement natural environment including protection canopy vegetation strategy preventing form degradation existing level visual aesthetic amenity objective 3 relevant strategy clause 21 10 2 clause 12 05 2 landscape seek protect enhance significant landscape contribute character strategy ensuring development detract natural quality significant landscape area clause 15 01 1 urban design seek create urban environment enjoyable contribute sense place strategy requiring development respond context term character surrounding landscape amongst thing clause 15 01 2 building design seek achieve building design outcome contribute positively local context strategy include encouraging development retain existing vegetation andclause 15 01 5 neighbourhood character seek recognise support protect neighbourhood character cultural identity sense place strategy ensuring development responds local context respecting underlying natural landscape character significant vegetation neighbourhood character value 42 based material satisfied removal purple plum tree tree 7 lilly pilly tree tree 10 acceptable removal tree acceptable response purpose slo4 would acceptable impact existing pattern vegetation landscape quality area consider removal tree would significantly detract vegetation canopy area basis existing sweet gum tree retained landscaping proposed appropriate 43 council submits landscaping consideration still appear afterthought limited opportunity undertake replacement landscaping within secluded private open space along common driveway 44 applicant submits private secluded open space yard excess amended standard b28 provide opportunity understorey canopy tree planting enhance development layout compensate loss three canopy tree design response significantly exceeds sought clause 22 02 3 landscaping proposed landscape plan prepared mr thompson show nine canopy tree exceed 8 metre height four tree attain 10 metre height existing tree 4 red flowering gum successfully retained andin light mr thompson evidence erroneous suggest street setback driveway alignment secluded private open space unable sustain vegetation enhances landscape character 45 amongst thing mr thompson evidence significant tree high value tree term horticulture habitat aesthetic cultural value site retention existing corymbia tree 4 minimises change streetscape term established tree canopy proposed landscaping includes provision twelve canopy tree 7 metre higher two hundred shrub tussock contribute garden character environmental value area maturing landscape designed create garden setting proposed development consistent objective planning policy leading improved streetscape presentation canopy cover andthe proposed landscaping provide integrated sustainable landscape term balancing residential development environmental aesthetic character value providing increase amount quality canopy vegetation cover compared existing condition site developed undeveloped site area 46 mr monk submitted unclear proposed landscaping grow given many tree proposed would compete large existing tree adjoining land question effectiveness proposed landscaping screening proposed dwelling 47 relevantly landscaping objective clause 55 03 8 follows encourage development respect landscape character neighbourhood encourage development maintains enhances habitat plant animal location habitat importance provide appropriate landscaping encourage retention mature vegetation site 48 acknowledge proposed retain existing corymbia within front setback plant twelve canopy tree grow 7 10 metre height outcome consistent policy clause 22 02 3 seek least one canopy tree private open space dwelling grow height exceeds roof height dwelling 49 however balance persuaded standard b13 met landscaping objective clause 55 03 8 achieved following reason existing sweet gum tree tall canopy tree significant component character environment area due visibility point surrounding neighbourhood landscape layout design protected provided retention sweet gum tree view significant feature neighbourhood failure retain existing sweet gum tree inadequate response landscaping objective clause 55 03 8 amongst thing seek encourage development respect landscape character neighbourhood encourages retention mature vegetation site residential neighbourhood character objective clause 22 02 2 seek ensure new residential development contributes maintenance enhancement canopy vegetation maroondah ensure new dwelling sited manner contributes enhances preferred character maroondah policy clause 22 02 3 seek residential development responsive site constraint existing sweet gum tree existing character area andthe preferred future character neighbourhood area 3 nyora achieved ensuring dwelling sited accommodate vegetation including canopy vegetation clause 22 02 3 scheme 50 basis conclude landscaping objective clause 55 03 8 achieved issue 51 amongst thing respondent raised issue regarding visual bulk overlooking adjoining property window along northern southern elevation proposed dwelling regard satisfied apart rear setback garage dwelling 2 proposal generally complies relevant side rear setback requirement standard b17 side rear setback objective 12 standard b21 clause 55 04 5 regarding overshadowing open space standard b22 clause 55 04 6 regarding overlooking 52 determined proposal provide acceptable response slo4 relevant policy scheme landscaping proposed meet landscaping objective clause 55 03 8 due failure design proposal accommodate existing sweet gum tree significant component character environment area basis satisfied permit granted proposal necessary make finding regarding matter raised application including regarding design detail site service conclusion53 reason given decision responsible authority affirmed permit granted juliette hallidaymember 1 submission evidence party supporting exhibit given hearing statement ground filed considered determination proceeding accordance practice tribunal material cited referred reason 2 figure appears include permeable driveway paving 3 clause 55 03 4 permeability stormwater management objective 4 clause 55 03 3 site coverage objective 5 arboricultural impact assessment report 7 sandgate avenuedated 5 august 2020 molloy arboriculture pty ltd 6 report page 7 7 ibid page 8 8 ibid page 27 9 ibid page 31 10 ibid page 18 11 ibid page 8 12 amended schedule 1 grz1
SZOYF & Anor v Minister for Immigration & Anor [2011] FMCA 380 (1 June 2011).txt	szoyf anor v minister immigration anor 2011 fmca 380 1 june 2011 last updated 2 june 2011federal magistrate court australiaszoyf anor v minister immigration anor 2011 fmca 380migration review decision refugee review tribunal whether tribunal failed consider claim arising circumstance failure consider jurisdictional error application dismissed migration act 1958 cth s 91r 476navk v minister immigration multicultural indigenous affair 2004 fca 1695nabe v minister immigration multicultural indigenous affair 2 2004 fcafc 263 2004 144 fcr 1sdaq v minister immigration multicultural indigenous affair 2003 fcafc 120 2003 129 fcr 137s230of 2003 v minister immigration citizenship 2007 fca 1574szmtp v minister immigration anor 2009 fmca 121first applicant szoyfsecond applicant szoygfirst respondent minister immigration citizenshipsecond respondent refugee review tribunalfile number syg 52 2011judgment nicholls fmhearing date 7 april 2011date last submission 7 april 2011delivered sydneydelivered 1 june 2011representationcounsel applicant mr l karpsolicitors applicant rasan selliah associatescounsel respondent mr h godwinsolicitors respondent dla piperorders 1 application made 13 january 2011 dismissed 2 applicant pay first respondent cost set amount 5 865 federal magistratescourt australiaat sydneysyg 52 2011szoyffirst applicantszoygsecond applicantandminister immigration citizenshipfirst respondentrefugee review tribunalsecond respondentreasons judgmentthis application made 13 january 2011 unders 476of themigration act 1958 cth act seeking review decision refugee review tribunal tribunal made 15 december 2010 affirmed decision delegate respondent minister refuse protection visa applicant backgroundthe applicant husband wife citizen malaysia arrived australia 3 february 2010 applied protection visa 16 march 2010 see court book cb cb 1 cb 81 annexures claim persecutionboth applicant claimed fear persecutory harm right submitted separate statement support cb 44 cb 48 cb 49 cb 53 application refused delegate 30 august 2010 cb 96 cb 111 common basis claim delegate feared persecutory harm malaysia arising applicant husband hindu religious belief applicant wife muslim malaysia claimed met september 2005 commenced relationship december 2005 continued 18 november 2009 applicant wife mother discovered relationship applicant wife claimed beaten mother brother confined parent applicant husband claimed attacked next day reported police applicant husband claimed converted islam november 2009 could marry applicant wife claimed expelled family conversion received threat telephone attended hindu temple 15 december 2009 applicant claimed married 10 january 2010 ceremony held muslim mosque left malaysia without informing parent applicant husband claimed arrival australia reverted hindu faith applicant wife claimed begun attend hindu temple delegatethe delegate referred country information cb 106 cb 107 relevantly said malaysian government recognise marriage muslim non muslim context found applicant husband went conversion islam could marry given legal requirement marriage unlikely applicant wife family needed pressure extent claimed cb 109 5 delegate also found given ability live study away home extended period applicant wife controlled family extent claimed delegate accepted applicant husband warned one occasion keep away applicant wife accept claim applicant wife beaten applicant husband subsequently threatened event considered would able live malaysia away interference respective family could call police threatened cb 109 9 tribunalthe applicant applied review tribunal 17 september 2010 cb 117 cb 120 continued represented solicitor migration agent also represent applicant court cb 1 cb 118 applicant attended hearing tribunal 23 november 2010 applicant seven week notice date hearing cb 125 representative sent tribunal facsimile lengthy written submission day hearing cb 130 cb 139 account hearing court tribunal account contained decision record 43 cb 180 56 cb 182 following hearing tribunal wrote applicant inviting comment certain information cb 158 cb 159 response submitted applicant representative cb 161 cb 166 tribunal accepted applicant husband raised hindu converted islam could marry applicant wife muslim 65 cb 185 beyond however tribunal satisfied applicant husband presented truthful account circumstance 67 cb 185 result tribunal found fabricated core claim enhance protection visa application 69 cb 185 tribunal rejected applicant husband factual account giving rise claim persecutory fear basis religion 70 cb 185 73 cb 186 tribunal accepted participated hindu religious activity australia disregarded conduct pursuant tos 91r 3 act 74 cb 187 tribunal also found applicant husband greatly exaggerated risk associated relationship wife claimed harm feared wife family found claimed reaction contrivance 75 77 cb 187 found conversion islam malaysia voluntary act undertaken wanted comply marriage law malaysia 78 cb 187 tribunal also found claim fear harm family contrivance 81 found lack genuine interest religion meant satisfied would participate activity religious nature would attract harm wife family authority religious extremist muslim community malaysia 81 cb 188 tribunal found applicant wife contrived claim relating religion enhance claim protection visa 84 cb 189 found involvement hinduism since came australia limited superficial accept claim converted interest hinduism 85 cb 189 tribunal rejected applicant wife key factual claim relating aspect conduct relationship applicant husband malaysia attracted adverse interest family tribunal also found claim contrived 86 cb 189 also found claimed involvement religious activity australia contrived enhance protection visa application 87 cb 189 disregarded conduct pursuant tos 91r 3 87 cb 190 therefore tribunal satisfied either applicant husband applicant wife refugee un refugee convention therefore affirmed delegate decision application courtthere three ground application court applicant press ground three ground one two following term 1 refugee review tribunal tribunal failed consider whether first applicant husband might suffer persecution malaysia conduct second applicant wife australia 2 tribunal failed consider whether second applicant might suffer persecution malaysia conduct first applicant australia courtin essence ground assert failure tribunal deal claim said arise circumstance presented one issue case applies inverse applicant mr karp counsel appeared applicant agreed claim expressly raised unarticulated nonetheless arose circumstance presented respectively applicant therefore failure tribunal address aspect claim reveals jurisdictional error applicant said relied onnavk v minister immigration multicultural indigenous affair 2004 fca 1695 navk 15 andnabe v minister immigration multicultural indigenous affair 2 2004 fcafc 263 2004 144 fcr 1 nabe 55 63 support proposition tribunal required consider claim expressly made arise clearly material nonetheless reference tonabeat 63 much depends circumstance relevantly applicant submitted circumstance emanate applicant husband claim converted islam could marry applicant wife tribunal accepted claim see 65 cb 185 submission also tribunal accepted applicant wife limited involvement hinduism australia 85 cb 189 tribunal applieds 91r 3 act claim mr karp sought draw circumstance religious activity australia applicant argument finding remain even though tribunal found respective motif enhance respective claim protection argument also sought draw tribunal finding non muslim malaysia compelled convert islam order marry muslim 65 cb 185 information tribunal relied 57 cb 182 cb 183 information delegate information also tribunal effect muslim malaysia subject criminal sanction seek renounce islam profess another faith muslim seeking convert must first obtain order religious court see cb 107 4 applicant also drew court attention submission made representative solicitor migration agent tribunal illustrating difficulty faced person malaysia sought change religion see cb 135 5 cb 138 purpose make submission supported view malaysia intolerance practice non muslim religion people formerly muslim therefore linked applicant circumstance presented tribunal initial statement support protection visa application applicant husband said cb 48 7 go back malaysia law family harm ruin daughter life insult family refused practice muslim religion community would hesitate kill government would put jail charge muslim government blamed insulting muslim religion community isolated fell insulted religion harm well future wife wish follow religion also harmed government community must raise child future muslim allowed teach practice religion wish come muslim religion divorce wife would allowed see error original submission court confirmed mr karp applicant husband making claim applicant wife would harmed following hindu religious practice away islam religion previously adherent statement support protection visa applicant wife relevantly stated go back country family kill run away moment know australia definitely try find u harm separate living szoyf szoyf might get kill family community practice muslim religion converting islam insulting islam government harm putting jail applicant also referred court part representative submission tribunal cb 132 8 cb 133 6 cb 164 8 submit applicant would perceived people malaysia practiced hinduism one time previously muslim perception would arise context marriage remembering country information seriousness conduct would viewed malaysia argument therefore viewed way conduct applicant separately arising claim made context relevant country information finding tribunal would lead persecutory harm claim considered tribunal agree mr godwin counsel appeared respondent applicant argument court clever construction element part case raised could said clearly arise circumstance presented would obliged tribunal consider short however claim enunciated court put tribunal said clearly arise circumstance presented mr godwin submitted ex post facto analysis presented engage tribunal statutory obligation considered applicant rely onnavkat 15 reference much depends circumstance see 31 respect see provides licence applicant make argument court way presented plainly stated innavk direction given bynabeis tribunal required consider claim expressly made arise clearly circumstance respectfully understand subsequent statement much depends circumstance directed point circumstance case provide answer whether case claim expressly made clearly arises material novel construction subsequently created circumstance allsop j said innavkat 15 claim must arise sufficiently material require reasonably competent tribunal circumstance appreciate existence required deal reasoning disposition applicant case innavkprovides analogy support applicant support minister position court innavkthe applicant sought rely country information argue tribunal considered claim said arise effect failed asylum applicant australia would perceived return china brought dishonour chinese official action australia taking part certain activity circumstance potential existed claim made arisen material expressly made relevantly current case could said claim arose tolerably clearly material tribunal allsop j also said innavkat 15 tribunal obligation extend undertaking independent analytical exercise material discovery potential claim might made minister also referred court number authority provide direction court regard insdaq v minister immigration multicultural indigenous affair 2003 fcafc 120 2003 129 fcr 137 sdaq full federal court concerned iranian national claimed tribunal converted baha faith tribunal rejected claim basis found conversion genuine material tribunal effect would perceived associate baha would persecuted iran justice cooper found evidence tribunal iranian authority would impute applicant baha religious belief previous association person faith sdaqat 20 association tribunal otherwise accepted evidence applicant feared persecution imputed religious belief sdaqat 20 mr godwin submission broad analogy drawn current case evidence tribunal either applicant fear based physical conduct respective partner attending hindu temple australia malaysian authority would known conduct lead imputation said derive respect conduct partner insdaqcooper j noted applicant subjective fear harm derived claim fear persecution intended conversation baha faith sdaqat 21 noting also tribunal rejected applicant claim genuine commitment baha faith sdaqat 21 insdaqat first instance hill j presented argument circumstance tribunal case presented alternative claim considered tribunal tribunal said failed justice hill considered relevant test justice cooper reviewed consideration 23 honour noted hill j finding evidence tribunal found alternative claim said arise material 24 justice cooper ultimately concluded 26 evidence raise alternative argument persecution imputed religious belief rrt statutory obligation act consider alternative case neither raised relied upon appellant proceeding justice carr case found 31 opinion significant difference vital missing link objective evidence e country material referred learned primary judge evidence appellant put tribunal subjective fear persecution country material honour held would suffice permit tribunal conclude real chance appellant persecuted religious groundsshould iranian authority impute baha faith result association girlfriend friend emphasis said appellant well aware baha association sufficient authority impute baha faith risk persecution claim fear imputation cooper j stated draft reason evidence appellant ever held fear 34 present matter appellant failed place tribunal authority establish fact essential refugee status one peculiarly within knowledge e subjective fear imputed baha belief matter political belief membership particular social group due baha association circumstance view tribunal err decision primary judge fall legal error inapplicants230of 2003 v minister immigration citizenship 2007 fca 1574 per allsop j tribunal accepted student iran applicant joined illegal organisation imprisoned case tribunal addressed question future harm found reason applicant would face persecution future simply joined group past although applicant imprisoned past tribunal determined real risk would suffer harm future current case argument court material tribunal essentially representative submission statement support said required tribunal consider whether applicant would face persecutory harm sought rejoin illegal group return iran relevantly court stated 6 statement whole part contained claim would suffer persecution past activity nowhere statement statement become adherent leftist group fact urging friend led activity apparently detained nowhere statement said wish continue adherence peshgham like body statement embodied expression fear persecution done happened past might viewed might future also relevant disposition current case allsop j reasoned 20 issue whether case fact claim put tribunal sufficiently raised relevant issue tribunal specialist tribunal carrying inquisitorial function dealt issue aspect statutory review function question course context applicant possessed personal information bearing upon fear persecution applicant articulates fear future country nationality particular point could rarely ever necessary tribunal interrogate applicant whether applicant might fear return reason yet unarticulated inszmtp v minister immigration anor 2009 fmca 121 matter driver fm court inferred tribunal found applicant case chinese national claimed falun gong practitioner attended candlelight vigil australia support falun gong practitioner provided two photograph support 10 honour said 15 tribunal accepted applicant falun gong practitioner acceptance logically extended practice australia well china tribunal made mention ofs 91r 3 themigration actin reason indicates tribunal satisfied applicant conduct australia engaged reason enhance protection visa claim go part way establishing case tribunal overlooked relevant consideration material tribunal orally writing might arguably alerted tribunal asur placeclaim requiring consideration also 17 think case distinguishable fromnabe innabeasur placeclaim might seen arising material represent substantial clearly articulated argument relying upon established fact accept court must cautious identifying claim arising material clearly articulated innabethe court said 68 although claim might seen arising material tribunal represent way substantial clearly articulated argument relying upon established fact sense term used indranichnikov judgment tribunal failed consider claim expressly advanced already indicated reason lightly made claim must emerge clearly material tribunal opinion judgment tribunal reason error made appellant involvement plote failed consider unexpressed claim want effective state protection persecution plote open regard threshold required judgment authority referred case demonstrate unfortunate factual error tamberlin j found contributed tribunal adverse finding credibility could affected outcome review tribunal however constitute jurisdictional error sense earlier discussed member full court found first occasion error fact within jurisdiction authority provide tribunal obligation consider claim engaged requires claim expressly made emerge clearly material tribunal conceded applicant first aspect requirement present current case however cannot see said claim clearly emerged arisen sufficient clearly effect applicant husband conduct australia claimed continuance practice hinduism would lead persecutory harm wife family authority muslim extremist muslim general applicant wife conduct australia claimed attendance hindu temple conversion would lead persecutory harm applicant husband malaysia respective claim put plainly arising circumstance relationship put clearly arose respective conduct conduct would lead persecutory harm agree mr godwin submission made behalf applicant construct may indeed put tribunal even suggested relation applicant husband bearing mind authority claim applicant wife attendance hindu temple australia known anyone sister cb 166 sister australian citizen cb 167 evidence tribunal lived australia could lead attracting persecutory harm anyone malaysia never explained applicant wife husband religious practice australia similarly connected indication would element fear persecutory harm relating malaysia initial statement applicant husband say future wife wished follow religion would harmed government community malaysia cb 48 8 nothing sufficiently connect claimed religious conduct australia occasioning real risk persecutory harm say simply religious conduct may result persecutory harm aspect claim dealt tribunal tribunal consider applicant respective claim fear persecutory harm malaysia religious conduct australia tribunal found applicant husband devout hindu 74 cb 186 cb 187 genuine interest religion would involved activity religious nature foreseeable future attract interest claimed would harm 84 cb 189 tribunal found similarly relation applicant wife found contrived claim relating religion 84 cb 189 finding contrivance extended claimed attendance hindu temple australia 87 cb 189 finding dealt applicant claim relating arising matter religion material nothing oblige tribunal consider iteration claim asserted court conclusionwith assistance legal representation applicant pressed two ground court neither reveals jurisdictional error part tribunal make order dismissing application certify preceding 79error style defined syntax error error style defined error style defined syntax error seventy nineseventy nine 79 paragraph true copy reason judgment nicholls fmdate 1 june 2011
Pojani v Minister for Immigration & Multicultural Affairs [2002] FCA 1283 (17 October 2002).txt	pojani v minister immigration multicultural affair 2002 fca 1283 17 october 2002 last updated 18 october 2002federal court australiapojani v minister immigration multicultural affair 2002 fca 1283migration application protection visa whether tribunal member failed consider fear persecution based applicant imputed political opinion whether integer claim consideredmigration act 1958 cth s 424 476minister immigration multicultural affair v yusuf 2001 hca 30 2001 180 alr 1 referred topaul v minister immigration multicultural affair 2001 fca 1196 2001 113 fcr 396 followedw396 01 v minister immigration multicultural affair 2002 fcafc 103 consideredhtun v minister immigration multicultural affair 2001 fca 1802 followedmiller v australian industrial relation commission 2001 fca 486 2001 108 fcr 192 referred toapplicant f v minister immigration multicultural affair 2001 fca 304 referred toabedi v minister immigration multicultural affair 2001 fca 1430 2001 114 fcr 186 referred toalbert pojani anor v minister immigration multicultural affairsv710 2001madgwick j17 october 2002sydney heard melbourne sydney federal court australianew south wale district registryv710of 2001between albert pojanifirst applicantfatmira pojanisecond applicantand minister immigration multicultural affairsrespondentjudge madgwick jdate order 17 october 2002where made sydneyhis honour order 1 application allowed 2 matter remitted refugee review tribunal differently constituted reconsideration according law note settlement entry order dealt order 36 federal court rule federal court australianew south wale district registryv710 of2001between albert pojanifirst applicantfatmira pojanisecond applicantand minister immigration multicultural affairsrespondentjudge madgwick jdate 17 october 2002place sydneyreasons judgmenthis honour 1 application review decision refugee review tribunal tribunal 24 may 2001 affirming decision delegate respondent minister refuse grant protection visa applicant mr mr pojani basis person australia owed protection obligation 1951 convention relating status refugee 1967 protocol relating status refugee refugee convention 2 applicant albert pojani fatmira pojani citizen albania mr pojani left albania 15 february 1993 serve diplomat country hungary mr pojani left albania 28 january 1994 join applicant married hungary 4 february 1994 arrived australia 17 november 1997 hungary following arrival applicant lodged application protection class az visa respondent minister department 19 december 1997 3 basis mr pojani claim refugee status fear persecution association involvement anti communist democratic party albania mr pojani claim also involve matter concerning member family democratic party activist particular one brother member democratic party politically assassinated 4 mr pojani forty seven year old born tirana albania qualified construction engineer mr pojani claim father imprisoned later killed communist regime expressing liberal view father death mr pojani claim mother three sister sent concentration camp lived 1974 following period mr pojani obtained qualification construction engineer worked 1991 1991 1992 mr pojani claim actively involved abolishing communism leading member democratic party claim involved establishment democratic party party gained power albania 1992 shortly thereafter mr pojani assigned position new government foreign ministry became diplomatic attache albanian embassy budapest responsible security matter 1993 late 1997 5 late 1997 socialist party largely constituted former communist party member came power albania defeating democratic party election mr pojani claim shortly afterwards received facsimile foreign affair minister dated 5 november 1997 advising dismissed position return albania 15 november 1997 reason given security department would closed short period service would longer required mr pojani claim family friend told return albania would black banned government friend told colleague returned passport confiscated became unemployable either disappeared without trace watched national security 6 mr pojani thirty eight year old albania qualified medical practitioner born shkoder lived moved hungary january 1994 mr pojani claim shkoder first city albania demonstrate former communist regime brother besnik ceka activist democratic party involved demonstration communist regime killed april 1991 one demonstration police fired upon demonstrator three people killed approximately 100 people injured mr pojani claim following death family watched national security 1992 democratic party came power mr pojani claim made request authority investigation brother death 1992 gave evidence hearing charged responsible brother death 1993 member former government sentenced gaol result involvement shooting included aredin shyti deputy interior minister xhemal dymylija chairman shokdra socialist party three senior member police force 7 mr pojani claim 1994 son convicted formed terrorist group aim de stabilise democratic party government murder anyone involved conviction sentencing parent end 1995 group organised detonation bomb large supermarket resulting death five people injury fifty terrorist group subsequently uncovered member sentenced lengthy term imprisonment mr pojani claimed terrorist group included one gramoz ruci never caught escaped greece however member parliament albania also claim two son aredin shyti well fatos nano current prime minister albania also involved terrorist group 8 mr pojani claim danger retribution involvement sentencing former member communist regime result political upheaval change government 1997 imprisoned brother death one exception released exception xhemal dymylja died prison aredin shyti hold government position particular mr pojani fear persecution shyti dymylja son one son appointed 1997 interior ministry investigator prosecutor mr pojani fear would submit false report husband judge mr pojani part application refugee status also claimed watched husband involvement democratic party 9 applicant provided large amount country information tribunal including article situation albania letter statement family friend affirming applicant involvement democratic party risk persecution faced returned albania detail example persecution member democratic party tribunal finding reasons10 tribunal made separate finding respect applicant focus application review court became concentrated argument alleged error law arising tribunal approach mr pojani application protection visa sufficient brief respect tribunal decision regarding mr pojani supposed legal error concerning decision ultimately pressed mr pojani11 tribunal member made following finding regarding mr pojani claim event prior 1991 including father death indicate faced real chance persecution return albania event remote time stopped attending university obtaining qualification construction engineer event prior 1991 provide background current claim accepted applicant husband claim police would put pressure reminding father fanciful situation albania qualitatively different persisted year communist regime tribunal satisfied mr pojani return would targeted political opinion involvement democratic party tribunal accepted diplomat hungary involved issue visa document tribunal consider surprising socialist party came power new government would consider withdrawing appointment embassy made former government story might suggest seen active supporter democratic party remaining hungary could seen interest new government however even simply fall favour 1997 change government may called back albania tribunal satisfied meant real chance persecution returned addition profile obtained hungary mr pojani also claimed would face persecution founder democratic party close association leading democratic party figure whilst tribunal accepted mr pojani involvement democratic party accept would face persecution membership tribunal found country information support claim confirmed report political killing 1999 despite claim harassment beating killing australian department foreign affair trade dfat reported regular claim police harassment made democratic party credible evidence support hard come tribunal concluded whilst problem past democratic party legitimate party form part opposition appears contesting next election tribunal accept mr pojani would face real chance persecution founding role party continued support party returned albania tribunal member accept mr pojani claim family problem albania result situation member accord much weight document account provided mr pojani family friend supporting view would face persecution returned albania member doubted document emanating albanian source genuine mr pojani12 mr pojani primary claim faced persecution involvement imprisonment responsible brother death alternative claim also rejected faced persecution result husband close connection democratic party tribunal reason follows tribunal accepts applicant wife brother killed 1991 accepts trial responsible gave evidence tribunal also note evidence terrorist group formed 1995 close connection hajredin shyti gaoled shooting occurred 1991 however following reason accept targeted matter return firstly according evidence given group claim would appears committed random terrorist act planting bomb supermarket indicate tribunal particular group targeting family secondly applicant parent remain albania tribunal find convincing family would risk event parent would remain country explanation revenge younger generation hurt plausible thirdly tribunal considers improbable event occurred 1991 1992 cause flee harmed would cause problem returned albania 2001 tribunal view remains case even though change government 1997 given matter tribunal accept real chance applicant face difficulty return result death brother court process followed tribunal also considered applicant wife husband claimed close connection democratic party tribunal found applicant husband face real chance persecution husband indeed political opinion tribunal note applicant wife brother provided letter support alleging parent still receive threatening telephone call however still albania tribunal accept would remain really threatened indeed letter go indicate applicant wife brother best support parent advised return whilst criminal power tribunal view difficulty authority controlling crime represents real reason behind brother migration austria tribunal accept applicant wife parent risk conclusion tribunal member satisfied applicant wife would face persecution convention reason returned albania 13 amended application review filed court 15 may 2002 ground follows tribunal observe procedure required 476 1 failed take account relevant consideration made error law 476 1 b c e act regulation respect making decision ground review14 live issue court following written oral submission summarised follows tribunal member address obliged address light circumstance whether applicant wife persecuted wholly part reason membership social group namely family failure result operative error regard tribunal member reason ii tribunal member fail appreciate deal applicant wife claim imputed political opinion result involvement prosecution conviction high ranking member former communist regime would give rise well founded fear persecution convention reason operative error iii additional ground review asserted respect alleged failure tribunal comply requirement 424 act failing take account information provided applicant wife claim blood feud15 respect applicant wife claim persecution arising membership family counsel respondent submits applicant wife specifically disavowed claim blood feud letter addressed tribunal dated 12 february 2001 letter provided subsequent hearing tribunal made request tribunal member seeking additional material respect applicant letter signed applicant contained following comment respect applicant wife title issue raised fatmira pojani review tribunal hearing require clarification term blood feud used hearing regard specific socialist party member seeking revenge lobbied brother besnik ceka death investigated stated hearing five people found guilty brother death arenid shyti deputy interior minister xhemal dymylja chairman shkodra socialist party taci papare cela senior member police force shyti sent jail released hold government position xhemal dymylja died jail believe shyti dymylja son seek revenge return albania however would incorrect call blood feud hostility familiar politically motivated taken public stand violence used socialist party communist government one dymylja son appointed prosecutor interior ministry investigator 1997 believe would submit false report husband judge emphasis added 16 respondent submits event even applicant wife found disavowed claim tribunal satisfied family targeted blood feud tribunal member reason set 12 finding basis satisfied example terrorism given anything random act fact applicant wife parent remained albania indicated claim blood feud convincing applicant wife claim would attack parent younger generation tribunal member considered improbable event 1991 1992 cause flee harmed would cause harm returned albania member accept applicant wife parent currently risk 17 counsel applicant submitted complete context mr pojani expressly eschewed basis claim blood feud placed tribunal additional matter consideration namely faced persecution imputed political opinion submitted family connection matter nature inescapable tribunal consider applicant wife membership family whether well founded fear persecution based membership 18 one view applicant wife letter designed much disavow claim persecution respect blood feud attempt avoid tribunal construing claim narrowly tribunal take account claim persecution based imputed political opinion however whether applicant meant opinion tribunal member fact address claim blood feud would appear comprehend notion persecution membership family reason expressly found applicant wife claim reason set 12 whilst reason appear considerably robust considering risk may involved nevertheless material member referred support view legal basis regard would appropriate court intervene imputed political opinion19 applicant second claim revenge feared politically motivated result stand involved brother death tribunal either accepted deny following matter appearing material imprisonment various prominent socialist party member perpetrator brother death culture revenge albania ii death custody one perpetrator brother death whose son might motivated seek revenge iii specific notoriety including likely imputed political opinion attained applicant wife among thing national televising brother trial position family spokesperson iv whether applicant wife well founded fear persecution due possibly imputed political opinion 20 counsel respondent submits consideration taken account tribunal member member finding indicated rejection view reasonable claim applicant wife would targeted imputed political opinion tribunal member accepted responsible brother death 1991 tried imprisoned accept applicant wife would targeted part bringing imprisonment tribunal required make specific finding prominence imprisoned tribunal member satisfied applicant wife family targeted group part alleged culture revenge tribunal member convinced terrorist group alleged seeking revenge father would target applicant wife particular tribunal referred fact one terrorist close connection hajredin shyti fact father one member group died gaol matter tribunal specifically required address 21 respondent submits event even found tribunal member failed take certain factual matter account failure give rise error law jurisdictional error necessary sense reference made inminister immigration multicultural affair v yusuf 2001 hca 30 2001 180 alr 1at 73 per mchugh gummow hayne jj respondent also referred topaul v minister immigration multicultural affair 2001 fca 1196 2001 113 fcr 396in allsop j heerey j agreeing said 78 79 accepted tribunal dealt subject matter element claim becomes apparent real complaint appellant must tribunal failed expressly deal evidence referred letter 19 november 1999 somehow preferred material countervailing evidence accepted exist supported tended towards position adopted tribunal emboldened paragraph referred paragraph 69 thus expressed becomes plain cannot question failure take account consideration made compulsorily relevant act regulation seeminister aboriginal affair v peko wallsend ltd 1986 hca 40 1986 162 clr 24andyusuf supra whatever may outer boundary relevant irrelevant consideration point jurisdiction issue see generally exhaustively minister immigration multicultural affair v x 2001 fca 858 minister immigration multicultural affair v tedella 2001 fca 832 khan v minister immigration multicultural affair 2001 fca 736 chhour v minister immigration multicultural affair 2001 fca 911 iyer v minister immigration multicultural affair 2001 fca 929andthirukkumar v minister immigration multicultural affair 2001 fca 864 view encompass failure expressly mention grapple part competing body evidence tribunal relevant finding made circumstance element integer claim claim asylum addressed may element integer claim asylum based tamil ethnicity addressed tribunal directed attention claim based association husband circumstance relevant consideration might addressed however unnecessary decide given tribunal address element integer claim emphasis added 22 respect agree allsop j approach inpaul case bound question whether integer claim addressed present case difficult one matter judgment based particular circumstance involved consideration light evidence whether failure refer evidence particular matter failure deal factual matter amount failure deal one necessary ingredient claim task court determine side line matter fall particular case inw396 01 v minister immigration multicultural affair 2002 fcafc 103 35 honour black cj wilcox moore jj made following comment tribunal role reviewing applicant claim refugee status nonetheless scope tribunal review task limited case articulated applicant tribunal look evidence material rejected give consideration case might reasonably raise notwithstanding case might contended applicant obligation tribunal explained kirby j inminister immigration ethnic affair v wu liang 1996 hca 6 1996 185 clr 259at 294 295 honour held necessary consider relevant possibility looking back entirety material placed decision maker must stand back particular ground consider case entirety see alsohtun v minister immigration multicultural affair 2001 fca 1802at para 13 authority cited 23 matter specific claim persecution made arising actual imputed political opinion see 15 imputed political opinion claim could material tribunal seen based one foundation allsop j spender j agreeing put inhtunat 42 first foundation straightforwardly honest socialist party sympathiser might deduce mr pojani outspokenness relation trial brother killer opposed party foundation claim persecution reason imputed political opinion expressed mr pojani post hearing letter 12 february 2001 set 15 tribunal finding lack participation fear persecution reason actual political opinion would necessarily also appear applicable claim imputed political opinion founded 24 foundation although raised material relies also upon shutting one eye regrettably fairly common experience situation far unknown person position political power may cause trouble people opposed person close pretending using theexcusethat person targeted political enemy person labelled enemy state may simply people managed enrage powerful person happens person power justifies proposed persecution others official position dealing political enemy thereby cause others act resultant state agency persecution reason imputed political opinion even though particular individual malefactor reality motivated 25 set tribunal conclusion applicant wife imputed actual political opinion simply applicant wife face real chance persecution husband indeed political opinion discussion tribunal denying applicant wife assertion risk perversion governmental process brother killer released prison influential close relative counsel applicant submits sufficiently address show tribunal dealt second foundation applicant wife potentially imputed political opinion arising event surrounding brother death 26 tribunal reason respect applicant wife short comparison reason concerning applicant husband apparently applicant husband made running tribunal reasonably generous approach must taken manner expression member one possible view failure make abundantly clear integer claim relating possible imputed political opinion second way indicated considered may matter unfortunate lack expression would amount error law hand brevity member reason wife claim go consider implication factual circumstance asserted potentially imputed political opinion may give rise conclusion member either fully understand address claim persecution account imputed political opinion founded often practice readily discernible distinction whether decision maker considered integer claim merely referred particular evidence may supported whether integer addressed decision maker failed consider give reason rejecting sensible reasonable even powerful way integer might made evidence case whether constructive failure decision maker exercise jurisdiction ultimately matter impression c f miller v australian industrial relation commission 2001 fca 486 2001 108 fcr 192at 49 51 27 remarkable fact applicant wife case 1 appears instrumental senior official former communist government put gaol one died 2 one official hold senior position current albanian government whilst son deceased official prosecutor b three imprisoned police nothing suggest usual police esprit de corp exist c others imprisoned men relative shown propensity capacity extreme violence even people could perceived done wrong 28 extensive country information suggest despite improvement albania still plagued corruption among judiciary lack independence executive whilst might unthinkable australia crown prosecutor pretence illegally harm someone caused father put subsequently die gaol might brave fact finder would view albania given probable high status prosecutor inquisitorial system prevailing context cowed corrupt judiciary country unfortunate recent history generally ex police officer material suggest police force poorly trained ill disciplined according respectable country information 29 material tribunal member turned mind relevant integer applicant wife claim would entitled infer reasonably possible chance relevant state official asserting likely object enmity upon revenge might well sought would enemy state persecution might well follow may well member considered particular possible foundation claim feared persecution would needed consider closely potential mean actual agent persecution member done may well quick reject mr pojani fear serious official malpractice tribunal explain relevant individual confidently assumed either unwilling unable harm tends conclusion tribunal member understand potential instigate persecution might readily realised socialist party return power 1997 mean pretending dangerous political enemy position mr pojani actual history might also indicated greater willingness ability thus harm rather parent 30 end seems tribunal address integer mr pojani claim cannot said tribunal finding reasoning integer necessitated rejection claim far depended upon integer failure consider applicant wife claim entirety failure behalf tribunal review application accordance act tribunal committed jurisdictional error decision authorised act see 476 1 b c e mchugh gummow hayne jj inyusufat 81 84 section 424 act31 also contended behalf applicant wife tribunal erred tribunal member failed comply 424 failure regard information submitted wife concerning fear persecution political target tribunal invited applicant provide additional information hearing 8 february 2001 substance information provided applicant respect applicant wife claim set 15 said tribunal failed regard information 32 section 424 relevantly provided 1 conducting review tribunal may get information considers relevant however tribunalgetssuch information tribunal must regard information making decision review 2 without limiting subsection 1 tribunal may invite person give additional information emphasis added 33 accept submission counsel respondent proper construction 424 act word get mean information tribunal obtains itsowninitiative material received obtained source applicant proceeding seeapplicant f v minister immigration multicultural affair 2001 fca 304per carr j 31 32 cited approval merkel j inabedi v minister immigration multicultural affair 2001 fca 1430 2001 114 fcr 186at 20 22 34 substance alleged ground review disposition35 opinion tribunal failed consider applicant wife fear persecution reason possible imputation particular way political opinion could led different result basis application allowed matter remitted tribunal differently constituted reconsideration according law hear party cost certify preceding thirty five 35 numbered paragraph true copy reason judgment herein honourable justice madgwick associate dated 17 october 2002counsel applicant m k andersoncounsel respondent mr moselysolicitor respondent australian government solicitordate hearing 1 november 2001 15 may 2002date judgment 17 october 2002
1808916 (Refugee) [2018] AATA 1317 (2 May 2018).txt	1808916 refugee 2018 aata 1317 2 may 2018 last updated 23 may 20181808916 refugee 2018 aata 1317 2 may 2018 decision recorddivision migration refugee divisioncase number 1808916country reference malaysiamember mireya hylanddate 2 may 2018place decision sydneydecision tribunal jurisdiction matter statement made 02 may 2018 8 39pmcatchwordsrefugee protection visa malaysia review application time invalid applicationlegislationmigration act 1958 s 65 494cmigration regulation 1994r 4 31any reference appearing square bracket indicate information omitted decision pursuant tosection 431of themigration act 1958and replaced generic information allow identification applicant relative dependant statement decision reasonsapplication reviewthis application review decision delegate minister immigration 27 february 2018 refuse grant applicant protection visa unders 65of themigration act 1958 act review application lodged tribunal 31 march 2018 following reason tribunal found jurisdiction review decision applicant immigration detention day notified decision application review decision made within 28 day commencing day r 4 31 2 themigration regulation 1994 material tribunal indicates applicant notified decision letter dated 27 february 2018 dispatched email tribunal satisfied notified decision accordance statutory requirement 12 april 2018 tribunal wrote applicant inviting comment validity application review 26 april 2018 date decision tribunal received comment applicant tribunal find applicant taken notified decision 27 february 2018 494c act therefore prescribed period apply review ended 26 march 2018 application review received tribunal 31 march 2018 application review made accordance relevant legislation tribunal jurisdiction matter decisionthe tribunal jurisdiction matter mireya hylandmember
NAB v Ganesh [2019] VSC 642 (19 August 2019).txt	nab v ganesh 2019 vsc 642 19 august 2019 last updated 25 september 2019in supreme court victorianot restrictedat melbournecommercial court ci 2015 04098national australia bank limited acn 004 044 937 plaintiffvanandavalli ganesh andganesh radhakrishnandefendants judge riordan jwhere held melbournedate hearing 19 august 2019date ruling 19 august 2019 ex tempore case may cited nab v ganeshmedium neutral citation 2019 vsc 642 practice procedure application plaintiff leave discontinue application granted appearance counselsolicitorsfor plaintiffmr segaldentons australiafor defendantssecond defendant personhis honour 1 application made plaintiff proceeding leave discontinue proceeding ci 2015 04098 proceeding filed national australia bank 6 august 2015 long history 2 summarised hargrave ja inganesh v national australia bank ltd 1 5 september 2018 follows 2009 bank loaned mr mr ganesh total 1 425 500 six credit facility security loan included mortgage following piece land 1 24 plumpton avenue oak park point family home owned applicant jointly 2 29 glen drive rye owned m ganesh 3 20 marcia avenue rye owned gsquare group pty ltd applicant director summary 1 security first four facility plumpton avenue property following default facility applicant voluntarily sold property net proceeds sale sufficient discharge four facility except small part second facility thus unsecured amount owing applicant bank second facility amount allocation net sale proceeds plumpton avenue contentious bank applied court resolve proper distribution proceeds various facility subsequent distribution accordance court determination 2 called sixth facility secured glen drive property loan specific purpose m ganesh purchasing property rental property term sixth facility included interest offset arrangement interest payable loan offset rental payment glen drive property deposited designated account bank thus sixth facility sole purpose facility designed fund m ganesh purchase glen drive property rental purpose 3 called fifth facility contentious clear initial loan arrangement culminated fifth facility made sixth facility like mukhtar asj refer initial arrangement previous facility uncontroversial purpose previous facility enable purchase marcia avenue property m ganesh purchased property contract sale nominee clause later nominated gsquare purchaser bank loaned money applicant enable purchase take place security gsquare guarantee supported mortgage marcia avenue property appears party intended similar offset arrangement would apply previous facility unexplained reason acted upon 4 later 2010 previous facility repaid replaced proceeds called fifth facility term fifth facility loan documentation offset arrangement put place requested applicant controversial aspect fifth facility loan agreement bank took opportunity extend security held previous facility limited guarantee gsquare mortgage marcia avenue property include existing mortgage plumpton avenue glen drive property security constituted gsquare guarantee related mortgage marcia avenue property continue result amended arrangement mortgage plumpton avenue property remained security first second third fourth facility mortgage became security fifth facility also b mortgage glen drive property remained security sixth facility became security fifth facility also c gsquare guarantee related mortgage became security fifth facility instead previous facility following default various facility bank commenced proceeding applicant gsquare court seeking judgment outstanding amount principal interest due loan agreement second fifth sixth facility possession glen drive marcia avenue property bank brought summary judgment application mukhtar asj determined bank entitled summary judgment applicant balance due term second facility whole amount due sixth facility granted summary judgment possession glen drive property summary judgment refused respect claim made fifth facility security including marcia avenue property thus applicant gsquare remain possession property together gsquare defending claim fifth facility 2 3 referred honour 6 december 2016 associate justice mukhtar gave summary judgment respect facility except fifth facility respect gave leave defend 3 4 20 march 2017 justice vickery dismissed appeal court decision associate justice mukhtar respect leave defend respect fifth facility justice appeal hargrave noted applicant satisfied result contended bank conduct connection fifth facility nullifies facility thus bank claim made respect facility security facility must fail word sought excused entirely liability facility counterclaim sought relief including repayment net proceeds sale plumpton avenue property interest 5 respect remarkable claim associate justice mukhtar said way grievance fifth facility somehow relief burden facility clear particularly event occurred borrower already voluntarily sold oak park property meet debt could service court order made permitting bank apply proceeds pay indebtedness first second partially third fourth facility think preposterous contend challenge fifth facility collaterally nullifies facility security challenge lawfulness facility obligation unmistakably incurred benefit conferred default occurred would emphasize court order made distribution fund voluntary sale 4 6 specifically associate justice mukhtar gave following reason granting summary judgment respect bank claim made second sixth facility submitted bank think sixth facility stand divorced dispute fifth facility evidence plain borrower defaulted security glen drive enforceable independently sixth facility think borrower basis undo collaterally obligation bank outside fifth facility even shown fifth facility impeachable adjustable way said remaining debt second facility secured mortgage plumpton avenue sold liability already precipitated although security spent see injustice completing recovery far ordering summary judgment amount remaining due second facility accordingly propose grant partially application summary judgment 5 7on 18 april 2018 associate justice mukhtar made order including document filed 16 april 2018 dated 12 april 2018 described proposed defence amended statement claim dated 10 april 2017 shall stand defence subject court striking part document order struck defendant shall 27 april 2018 file serve document called relief remedy sought way counterclaim shall state reason allegation defence relief remedy seek counterclaim 8 26 june 2018 associate justice mukhtar made order including defendant document dated 27 april 2018 called relief remedy sought way counterclaim struck entirety 20 august 2018 defendant shall file serve another document called relief remedy sought way counterclaim version 2 shall state relief remedy seek counterclaim reason allegation defence 9 27 august 2018 associate justice mukhtar made order including relief remedy sought way counterclaim version 2 dated 17 august 2018 struck defendant leave file serve another document titled relief remedy sought way counterclaim version 3 shall 14 september 2018 version 3 shall confine stating concisely relief remedy defendant seek contend court determines fifth agreement unlawful unenforceable consequently security procured agreement also unlawful unenforceable 10 defendant file counterclaim pursuant honour order 11 5 september 2018 hargrave ja refused application defendant extension time appeal decision justice vickery dismissing appeal summary judgment respect defendant contention bank conduct relation fifth facility made security associated facility unenforceable honour said even held trial fifth facility unenforceable reason thus bank cannot enforce fifth facility applicant gsquare guarantee mortgage marcia avenue property effect upon enforceability mortgage given applicant security first second third fourth sixth facility fifth facility entered thus default facility legal impediment bank enforcing secured property namely plumpton avenue glen drive following sale plumpton avenue distribution sale proceeds indebtedness first second third fourth facility barrier bank proceeding recover unsecured basis unpaid balance loan second facility mukhtar asj vickery j correct hold 6 12 2 october 2018 associate justice mukhtar proposed refer proceeding commercial court trial honour later 8 october 2018 noted matter writ matter filed august 2015 year interlocutory instability lead court matter referred commercial court pre trial direction especially 5 september 2018 hargrave ja refused defendant leave appeal time decision vickery j october 2017 dismissed appeal decision mukhtar asj december 2016 give summary judgment defendant four five facility case hargrave ja found appeal totally without merit thus remaining dispute concern one facility arising fifth agreement become known case fifth agreement made pay close previous facility 396 000 court experienced great difficulty getting defendant prepare satisfactory defence counterclaim enable orderly trial difficulty necessitated court ordering defendant file separate counterclaim separate defence court struck two version counterclaim april august year gave opportunity file third version 14 september done sufficient defence cause embarrassment fair orderly conduct trial problem composition counterclaim based claiming loss damage according allegation comprise defence extension time give defendant opportunity improve counterclaim lead dispute delay litigant person unlikely coercive court order produce meaningful counterclaim one case thing fashioned trial plaintiff content adapting state affair prospect delay 13 accordingly 1 february 2019 made order plaintiff file serve witness outline 1 march 2019 defendant 1 april 2019 matter listed trial estimated duration three day plaintiff filed served witness outline defendant 14 matter order stated pursuant court obligation give effect overarching purpose unders 8of thecivil procedure act 2010 court made following trial direction identified party issue tried trial issue follows fifth agreement referred defence amended statement claim dated 10 april 2017 invalid otherwise unenforceable reason plaintiff wrongful conduct incorporation term extending security fifth agreement mortgage plumpton avenue property glen drive property defined amended statement claim filed 10 april 2017 b plaintiff engage wrongful conduct referred sub paragraph defendant suffer damage damage result wrongful conduct 15 completeness mention 6 may 2019 ordered consent extension 28 june 2019 defendant file serve witness outline defendant failed comply order 16 12 august 2019 matter listed hear plaintiff application leave discontinue proceeding adjourned application defendant reason defendant ill attend 17 mr ganesh appeared today behalf behalf wife explained ill attend plaintiff sought leave discontinue proceeding evidence discloses plaintiff written debt due fifth facility b discharged mortgage marcia avenue property sole mortgage remaining enforced proceeding c returned certificate title defendant 18 defendant objection leave granted plaintiff discontinue proceeding contest fact order cost 19 submission made defendant relate fact continue contend entitled broad relief beyond bank concedes reason contend wrongful conduct bank fact defendant continue contend entitled broad ranging might say unspecified relief bank wrongdoing arising fifth facility part current proceeding court counterclaim struck associate judge 20 circumstance opinion appropriate matter brought end pursuant r 25 02 thesupreme court general civil procedure rule 2015 give leave proceeding discontinued defendant self represented accept bank submission accordance withcachia v hanes 7 order cost 1 2018 vsca 224 2 ibid 4 6 3 national australia bank ltd v ganesh 2016 vsc 738 4 ibid 50 5 ibid 58 59 6 ganesh v national australia bank ltd 2018 vsca 224 22 7 1994 179 clr 403 410 1 mason cj brennan deane dawson mchugh jj
N98_25358 [2000] RRTA 1041 (14 November 2000).txt	n98 25358 2000 rrta 1041 14 november 2000 refugee review tribunaldecision reason decisionrrt reference n98 25358n98 25358n98 25358country reference indiaindiaindiatribunal member ruth laytondate decision made 14 november 2000place sydneydecision tribunal affirms decision grant protection visa backgroundthe applicant citizen india arrived australia lodged application protection class az visa department immigration multicultural affair themigration act 1958 act delegate minister immigration multicultural affair refused grant protection visa applicant applied review decision13 november 200013 november 2000 legislationunders 65 1 act visa may granted decision maker satisfied prescribed criterion visa satisfied criterion grant protection class az visa set in 36of act inpart 866of schedule 2 themigration regulation 1994as force immediately 20 october 1999 subsection 36 2 act provides criterion protection visa applicant visa non citizen australia australia protection obligation refugee convention amended refugee protocol refugee convention refugee protocol defined mean 1951 convention relating status refugee 1967 protocol relating status refugee respectively 5 1 act australia party refugee convention refugee protocol generally speaking protection obligation people refugee defined refugee conventionarticle 1a 2 convention defines refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return high court considered definition number case notablychan yee kin v minister immigration ethnic affair 1989 hca 62 1989 169 clr 379 applicant anor v minister immigration ethnic affair anor 1997 190 clr 225 minister immigration ethnic affair v guo anor 1997 191 clr 559andchen shi hai v minister immigration multicultural affair 2000 hca 19 2000 170 alr 553 inguo case court observed definition contains four key element first applicant must outside country second applicant must fear persecution every threat harm interference person right convention reason constitutes persecuted inchan casemason cj referred persecution requiring serious punishment penalty significant detriment disadvantage case mchugh j said notion persecution involves selective harassment appropriate case may include single act oppression serious violation human right measure disregard human dignity inapplicant scase honour stated whether conduct constitutes persecution depend nature conduct whether discriminates person one convention reason persecution may directed person individual member group persecution must official quality sense official officially tolerated uncontrollable authority country nationality persecution implies element motivation part persecute infliction harm people persecuted something perceived attributed persecutor however motivation need one enmity malignity antipathy towards victim part persecutor third persecution applicant fear must one reason enumerated convention definition race religion nationality membership particular social group political opinion phrase reason serf identify motivation infliction persecution however persecution feared need besolelyattributable convention reason may enough race religion nationality membership social group political opinion one several reason persecution feared fourth applicant fear persecution convention reason must well founded fear add objective requirement requirement applicant must fact hold fear person well founded fear persecution convention genuine fear founded upon real chance persecution convention stipulated reason fear well founded real substantial basis merely assumed based mere speculation real chance one remote insubstantial far fetched possibility person well founded fear persecution even though possibility persecution occurring well 50 per cent addition applicant must unable unwilling fear avail protection country country nationality whenever protection applicant country available ground based well founded fear refusing person concerned need international protection refugee whether applicant person australia protection obligation assessed upon fact exist decision made requires consideration matter relation reasonably foreseeable future claim evidencethe tribunal department file includes protection visa application tribunal also applicant application review applicant gave oral evidence tribunal primary application applicant said family member live india said hindu speaks read writes hindi said passport issued indian authority indicated problem obtaining passport left india legally help agent claim protection visa said quoted verbatim member delhi pradesh congress committee year deleted riot death prime minister indira gandhi bjp bhartiya janta party conspiracy punish active congress member weakened congress party active member closed local congress leader always spoken stage clarified position public bjp like said bjp respect supreme court verdict babri masjid issue bjp party demolished mosque ayodhya bjp along sikh personally involved prosecute innocent people specially congress worker like year deleted taken custody beaten interrogation unknown location released week thereafter police visit continued harrasing torturing family period one month time two month time taken interrogation fals litigation hour always subjected avoid pressecution advised friend another country live time time political situation alright went another country month deleted lived month deleted told mother police le harrasing departure india date deleted came back india started work work deleted month deleted police arrested alleged nationality deleted militant called name deleted police falsely linked alleged militant according police received credible information prominent leader bjp involvement tortured charged released pressure influence person paid bribe sho advised senior police officer bribe paid leave country otherwise hand tight prosecute answer question think authority country protect go back say follows told political enemy strong would like ask political leader corrupt grabing power killing innocent hope live anywhere india mother strong fear safety sold time gold jewellery peace land aid departure india agent charged price deleted get visa australia showed paper fact occupation deleted trust india authority lot request please allow live country getting harassment since bjp power folio 22 departmental fileis photocopy applicant passport appear applicant name date birth given applicant primary application primary decision minister delegate noted despite applicant claim detained applicant able retain passport legally leave india return depart legally delegate also noted applicant stayed one address india depart india week visa leave india australia granted delegate found implausible would remained address delayed departure fact feared detention torture india delegate also noted applicant hindu member congress party delegate said country information indicated largest political party india india democracy independent judiciary therefore delegate found applicant face harassment local level could easily relocate another area india review application applicant said reason applying review supplied later tribunal note submission provided hearing section detailing hearing arrangement deleted unders431of themigration act rrt hearing applicant attended wife emotional support gave evidence excellent english aided occasionally interpreter tribunal asked applicant prepared primary application applicant said told indian person written translated applicant applicant signed tribunal asked applicant happened business delhi said left india come australia simply stored equipment mother home ceased trading tribunal asked applicant family india applicant speaks mother telephone month speaks sibling telephone year tribunal asked applicant whether mother anyone else told adverse occurrence visit authority since left india applicant said mother told two visit form two policeman month left asked applicant replied know say anything else return two visit tribunal asked applicant whether could return country applicant said could gone tourist visa though able find work tribunal asked applicant troubled return india time applied refugee status country applicant said close mother wanted look returned india country tribunal asked applicant claim protection visa applicant said joined congress committee area delhi became active party year later loved help people people respect ordinary member number ordinary member group activity political group first rally departure india ordinary member helped organise rally others job organising included arriving rally gathering people rally including getting stage encouraging people attend rally though making speech rally secondly attended meeting member congress committee area delhi every saturday tribunal asked first time anything bad happened india applicant said first time something bad happened india year ago said police came home said wanted speak took prison detained week went country detained number occasion time one two hour time returned country came australia police detained time one three hour time time detained said word effect active worker congress party going power upstairs time police detained mistreated go doctor released time police detained released without charging anything tribunal asked whether police ever said anything else word effect active worker congress party going power upstairs detained said said asked whether received complaint anyone said tribunal asked applicant variation primary application form evidence tribunal take claim applicant said far aware primary application correct said hearing truth tribunal noted primary application stated police suspected contact pakistani militant said said hearing truth police tell suspected militant contact tribunal asked applicant whether detail passport including name date birth true detail applicant said true detail tribunal asked applicant whether problem obtaining passport india said problem either obtaining renewing passport tribunal asked applicant whether problem legally leaving india said problem legally leaving india tribunal asked applicant whether help obtaining passport legally departing india said though help agent getting visa country australia getting visa done india tribunal noted country information indicated person obtained passport left legally activity subject previous security check getting passport leaving india legally indicated adverse interest authority india wide applicant said never charged anything crime agreed authority india india wide adversely interested tribunal asked applicant whether engaged political activity australia said tribunal asked applicant whether would engage political activity returned india said would engage political activity returned india tribunal asked whether anything adverse occurred time ordinary member congress committee area applicant said tribunal asked whether anything adverse occurred time local congress leader applicant said tribunal asked whether anything adverse occurred time office bearer congress committee area applicant said tribunal asked applicant thought police wanted harm given target member including office bearer congress committee area said know tribunal asked whether anything adverse occurred time applicant apart detention said adverse occurrence happened tribunal asked whether anything adverse occurred time applicant family apart visit mother said adverse occurrence happened family tribunal asked whether anything adverse occurred time apart said hearing said adverse occurrence happened since applicant given evidence fluent english tribunal repeated applicant interpreter order applicant could confirm evidence applicant hearing evidence translated confirmed indeed evidence tribunal noted appeared unusual police wanted harm member congress party given country information indicates congress party legal mainstream political party india congress party power delhi currently applicant said know wanted harm harm fearful would happen returned india tribunal noted applicant local problem police area appeared could relocate since skilled run business india trade experience another country australia applicant agreed capable relocation elsewhere india felt would risk wherever went india tribunal noted appeared would safe relocation since hindu country information indicates majority religion india political activity congress party country information indicates legal mainstream party case evidence tribunal hearing would resume political activity returned india applicant reiterated feared harm wherever went india country information considered decision congress party india 1999 country report human right practice released bureau democracy human right labor u department state 25 february 2000 state introduction india longstanding parliamentary democracy bicameral parliament prime minister atal bihari vajpayee whose bharatiya janata party bjp led 13 party coalition took office march 1998 head government government lost parliamentary vote confidence april 17 new parliamentary election held september early october president dissolved lower house parliament april president k r narayanan elected electoral college consisting member parliament member state assembly head state also special emergency power judiciary independent section 2a constitution provides freedom speech press government generally respect right practice however limitation section 2b constitution provides right peaceful assembly government generally respected right practice section 3 constitution provides citizen right change government peacefully citizen exercise right practice periodic free fair election held basis universal suffrage india democratic parliamentary system government representative elected multiparty election delhi want centre waive penalty illegal colony reuters business briefing sourced middle east intelligence wire via gulf news 7 august 2000 state delhi state legislative assembly dominated ruling congress party led chief minister sheila dikshit state jagdish mukhi bjp leader opposition delhi state assembly gandhi demand parliamentary seat woman reuters business briefing sourced reuters news service 8 august 2000 8 august 2000 describes congress party india main opposition congress party 2000 annual report international religious freedom india released bureau democracy human right labor u department state september 5 2000 internet site www state gov www global human_right irf irf_rpt irf_asia html accessed 19 september 2000 state government led coalition called national democratic alliance nda pledged respect india tradition secular government religious tolerance however leading party coalition bharatiya janata party bjp hindu nationalist political party link hindu extremist group implicated violent act christian muslim bjp also lead state government gujarat himachal pradesh uttar pradesh b hindu india hindu majority population india far east australasia london europa publication 24th edition 1993 page 307 state hindu comprise 82 63 total population india evidence india overall place diverse culture religion department foreign affair trade refugee determination country profile india june 1994 page 11 sometimes conflict arises diversity vanhanen tatu politics ethnic nepotism india example stirling press new delhi 1991 page 122 2000 annual report international religious freedom india released bureau democracy human right labor u department state september 5 2000 internet site www state gov www global human_right irf irf_rpt irf_asia html accessed 19 september 2000 state india secular state faith generally enjoy freedom worship government policy favor religious group however tension muslim hindu increasingly hindu christian continue pose challenge concept secularism tolerance diversity state founded section constitution provides freedom religion government generally respect right practice according 1999 government statistic based 1991 national census hindu constitute 82 4 percent population muslim 12 7 percent christian 2 3 percent sikh 2 percent buddhist 0 7 percent jains 0 4 percent others including parsi jew baha 0 4 percent hinduism large number branch including sanatan arya samaj group c passport issue india departure india department foreign affair trade dfat cable nd84486 6 july 1992 state one concern authority arrest warrant force would able leave country either undetected bribery however person obtained another passport different name easy would detected check airport exceedingly thorough passport clearance check police thorough anyone likely receive adverse clearance simply apply passport another name dfat country profile india june 1994 state use payment influence arrive desired outcome common practice throughout length breadth india level society extent become accepted everyday occurrence integral part life india dfat airport security dfat cir 271 99 2 august 1999 state airport check india quite thorough would difficult individual leave country undetected unless forged passport new passport issued different name 1999 country report human right practice released bureau democracy human right labor u department state 25 february 2000 state section 2d citizen enjoy freedom movement within country except certain border area security reason special permit required passport act 1967 government may deny passport applicant may likely engage outside india activity prejudicial sovereignty integrity india government us provision prohibit foreign travel government critic especially advocating sikh independence violent separatist movement jammu kashmir relocation cable nd6495 kashmir refugee information request ind3230 26 february 1996 state apart special case general problem applicant concern living one region would like live elsewhere india 1999 country report human right practice released bureau democracy human right labor u department state 25 february 2000 state section 2d citizen enjoy freedom movement within country except certain border area security reason special permit required finding reasonsthe applicant claimsthe applicant claimed joined congress party detained police number occasion political activity credibility applicant claimsthe tribunal reservation applicant credibility given claim detained member congress party odds country information gandhi demand parliamentary seat woman reuters business briefing sourced reuters news service 8 august 2000 8 august 2000 indicates congress legal mainstream party tribunal note country information indicates violent clash political party time time example bjp congress calcutta indian mob wound 14 policeman officer open fire reuters news service 3 march 1999 state four day clash rival political party west bengal february march 1999 however country information delhi want centre waive penalty illegal colony reuters business briefing sourced middle east intelligence wire via gulf news 7 august 2000 also indicates congress party ruling government delhi applicant lived bjp main opposition party also tribunal note unusual police would harass applicant congress party membership given ordinary member party harass anyone else including office bearer branch well member congress party many year yet detained recently applicant said hearing know reason detention started never time charged offence obtained renewed passport detail legally exited india problem fact inconsistent authority adverse interest applicant well applying refugee status country return india could indicate lack subjective fear return india part tribunal finding fact applicant claimshowever tribunal found applicant apparently genuine hearing tribunal given applicant benefit doubt accepts member congress party detained described hearing number occasion tribunal note primary application applicant stated detained police falsely linked alleged militant hearing said well primary application applicant said bjp along sikh personally involved prosecuting people like congress party worker yet hearing applicant said asked police whether people laid complaint replied one complained tribunal note applicant said hearing written primary application though translated signed also applicant said telling truth hearing tribunal note evidence hearing given directly tribunal oath considering matter tribunal prefers applicant evidence given hearing evidence given primary application therefore variation applicant primary application evidence hearing example whether police suspected militant link whether bjp sikh harassing joined congress party tribunal preferred evidence given hearing set accordingly tribunal determined case basis applicant evidence hearing joined congress committee area ordinary member congress committee area number ordinary member congress committee area activity attend weekly meeting help others organise rally area congress party including like ordinary member getting stage rally speaking encourage people attend rally speaking rally one else ordinary member office bearer included congress committee area harassed authority detained one week number occasion detained police well later detained hour police time detained police said word effect active worker congress party going power upstairs time police detained mistreated go doctor released time police detained released without charging anything renewed passport left india legally problem used agent help obtain foreign australian visa left india mother told twice month left india police came asked tribunal finding reason factsthe tribunal note applicant said thing police told detained active worker congress party going power upstairs give reason harassment tell complaint charge offence also visit mother left india police merely asked rather indicating specific problem tribunal also note first occasion period detention short matter hour mistreated ever go doctor tribunal also note applicant granted passport detail renewed indicates adverse interest time authority given country information passport issued india security check carried dfat cable nd84486 refugee information request india 6 july 1992 dfat cable nd7303 india refugee information request rrt ind11367 passport 23 july 1996 u department statecountry report human right practice 1999 india published february 2000 well departed india legally given country information security check departure form india dfat cable nd84486 refugee information request india 6 july 1992 dfat cable nd7303 india refugee information request rrt ind11367 passport 23 july 1996 indicates authority adversely interested nevertheless despite brevity detention applicant experienced fact never charged tribunal accepts applicant detained mistreated indicates problem local police home area delhi considering evidence tribunal satisfied problem convention reason following reason first country information indicates congress legal mainstream political party india ruling party delhi applicant lived india secondly applicant ordinary member congress party even active like ordinary member get stage rally encourage people join rally thirdly one else group harassed time fourthly applicant evidence hearing though police mentioned congress party active participation detained specifically say detained know selected detained however even applicant detention motivated part full convention reason political opinion tribunal note relocation another place india away form home area delhi option applicant focus convention definition upon protection country nationality might able provide particular region upon general notion protection country international community obligation provide protection outside border country nationality real protection found within border therefore even applicant well founded fear persecution home region convention provide protection could nevertheless avail real protection country nationality elsewhere within country randhawa v minister immigration local government ethnic affair 1994 fca 1253 1994 52 fcr 437per black cj 440 1 however principle applies people genuinely access domestic protection reality protection meaningful relocation reasonable option particular circumstance may said relevant sense person fear persecution relation country whole well founded randhawaper black cj 442 3 beaumont j 450 1 tribunal find relocation generally reasonable option open person india choose relocate cable nd6495 kashmir refugee information request ind3230 26 february 1996 1999 country report human right practice released bureau democracy human right labor u department state 25 february 2000 applicant hindu country information indicates india secular state freedom religion 2000 annual report international religious freedom india released bureau democracy human right labor u department state september 5 2000 also hindu majority population india ibid far east australasia london europa publication 24th edition 1993 page 307 dfat refugee determination country profile india june 1994 page 11 applicant member congress party country information indicates congress party legal mainstream political party india applicant evidence hearing returned india would involved political activity future tribunal also note left india detention commenced given country information security check airport india dfat cable nd84486 6 july 1992 dfat airport security dfat cir 271 99 2 august 1999 indicates nation wide interest authority left india applicant said hearing used agent help obtain foreign australian visa tribunal note first applicant using agent get visa authority indian authority indicate problem indian authority secondly applicant said hearing use agent common get visa india country information dfat country profile india june 1994 also indicates use agent get official document common india tribunal concludes applicant use agent get foreign australian visa indicate indian authority adversely interested time applicant mother visited police since two visit asking applicant considering evidence tribunal find applicant return india even applicant adverse interest convention reason police local area real chance would adverse interest authority national basis convention reason personal level tribunal note applicant work skill applicant agreed hearing skilled trade tribunal note experience overseas india employed running business applicant mature skilled qualification apparently adjusted well living working culture foreign tribunal note applicant speaks read writes hindi evidence hearing demonstrates also speak english considering evidence tribunal find applicant personally capable relocation considering evidence tribunal find even police detention convention reason applicant relocates another area home area delhi genuinely access domestic protection relocated home area delhi would face real chance persecution convention reason reality protection would meaningful considering evidence tribunal find even harm suffered police delhi convention reason applicant return india relocates former home area delhi well founded fear persecution convention reason face real chance persecution convention reason conclusionhaving considered evidence whole tribunal satisfied applicant person australia protection obligation refugee convention amended refugee protocol therefore applicant satisfy criterion set 36 2 act protection visa decisionthe tribunal affirms decision grant protection visa
Curtin Student Guild [2016] FWCA 598 (29 January 2016).txt	curtin student guild 2016 fwca 598 29 january 2016 2016 fwca 598fair work commissiondecisionfair work act 2009s 185 enterprise agreementcurtin student guild ag2015 6945 curtin student guild employee collective agreement 2016 2019educational servicescommissioner roemelbourne 29 january 2016application approval curtin student guild employee collective agreement 2016 2019 1 application made approval enterprise agreement known thecurtin student guild employee collective agreement 2016 2019 agreement application made pursuant tos 185of thefair work act 2009 act made curtin student guild agreement single enterprise agreement 2 applicant provided written undertaking copy undertaking attached annexure satisfied undertaking cause financial detriment employee covered agreement undertaking result substantial change agreement 3 subject undertaking referred satisfied requirement ofss 186 187 188and190as relevant application approval met agreement cover employee employer however taking account factor insection 186 3 3a satisfied group employee fairly chosen 4 agreement approved 29 january 2016 accordance withs 54 operate 5 february 2016 nominal expiry date agreement 31 december 2019 commissionerprinted authority commonwealth government printer price code j ae417613pr576544 annexure avar _gaq _gaq _gaq push _setaccount ua 9592794 1 _gaq push _trackpageview function var ga document createelement script ga type text javascript ga async true ga src http document location protocol http ssl http www google analytics com ga j var document getelementsbytagname script 0 parentnode insertbefore ga
Castells, Manuel --- "The construction of European identity" [2002] ELECD 76; in Rodrigues, Joao Maria (ed), "The New Knowledge Economy in Europe" (Edward Elgar Publishing, 2002).txt	castells manuel construction european identity 2002 elecd 76 rodrigues joão maria ed new knowledge economy europe edward elgar publishing 2002 book title new knowledge economy europeeditor rodrigues joão mariapublisher edward elgar publishingisbn hard cover 9781840647198section chapter 7section title construction european identityauthor castells manuelnumber page 10extract 7 construction europeanidentitymanuel castellspreliminary remarksthis research paper policy oriented document prepared atthe request portuguese presidency european union firstsemester 2000 rely number material information andanalyses found trilogy information age economy society culture oxford blackwell revised edition 2000 context try demonstrate point written instatement mode suggest idea direction discussion thepurpose advancing construction european identity notbe dealing major strategic issue economic policy tech nological development restructuring welfare state withoutwhose proper treatment discussion identity become empty ideo logical exercise aware contribution included samevolume prepared portuguese presidency european union onthese matter excellent paper agree mainlines avoid redundant contribution startwith one previous question european identity relevant matter theconstruction european union 1 european identity importantafter creation euro constitution europeancentral bank european union practical matter oneeconomy waiting full integration uk sweden consoli
Hawkhaven Pty Ltd v Mackay Regional Council [2017] QPEC 40 (19 July 2017).txt	hawkhaven pty ltd v mackay regional council 2017 qpec 40 19 july 2017 last updated 20 july 2017planning environment courtof queenslandcitation hawkhaven pty ltd v mackay regional council anor 2017 qpec 40parties hawkhaven pty ltd appellant vmackay regional council respondent andblacks beach cove 2 pty ltd co respondent election file 4293 4294 4295 4296 2014division planning environmentproceeding appealoriginating court planning environment court queenslanddelivered 19 july 2017delivered brisbanehearing date 19 23 september 2016 23 24 february 2017judge searles dcjorder order accordance paragraph 228 judgment catchword environment planning environmental planning development control application development application material change use commercial premise refused council development application assessed current planning scheme whether weight given draft planning scheme whether development application conflict relevant planning scheme whether sufficient ground exist warrant approvalenvironment planning environmental planning development control application development application approved subject condition whether condition valid pursuant section 345 ofsustainable planning act2009 qld sustainable planning act 2009 qld 314 324 326 345 493 495acland pastoral co pty ltd v rosalie shire council 2007 qpec 112 2008 qpelr 342
CZI18 v Minister For Home Affairs & Anor [2019] FCCA 2080 (31 July 2019).txt	czi18 v minister home affair anor 2019 fcca 2080 31 july 2019 last updated 2 august 2019federal circuit court australiaczi18 v minister home affair anor 2019 fcca 2080catchwords migration application judicial review decision administrative appeal tribunal notification letter advising delegate decision sent via email application tribunal lodged outside time limit whether applicant validly notified content clarity notification letter jurisdictional error application dismissed legislation federal circuit court rule 2001 cth r 44 05migration act 1958 cth s 66 476 477 494b 494cmigration regulation 1994 cth reg 4 31cases cited ali v minister home affair 2019 fca 1102azaey v minister immigration border protection 2015 fcafc 193beni v minister immigration border protection 2018 fcafc 228cheng v minister immigration citizenship 2011 fca 1290 2011 198 fcr 559cqp15 v minister immigration border protection 2017 fca 854craig v state south australia 1995 hca 58 1995 184 clr 163dap17 v minister home affair anor 2019 fcca 801dfq17 v minister immigration border protection 2019 fcafc 64haque v minister immigration citizenship 2010 fca 346htun v minister immigration multicultural affair 2001 194 alr 244minister immigration border protection v singh 2014 fcafc 1 2014 231 fcr 437minister immigration citizenship v li 2013 hca 18 2013 249 clr 332minister immigration citizenship v szmds 2010 240 clrminister immigration ethnic affair v wu liang 1996 185 clr 259saap v minister immigration multicultural indigenous affair anor 2005 hca 24 2005 228 clr 294szrha v minister immigration anor 2013 fmca 131szrui v minister immigration multicultural affair citizenship 2013 fcafc 80zhan v minister immigration multicultural indigenous affair 2003 fca 327 2003 128 fcr 469applicant czi18first respondent minister home affairssecond respondent administrative appeal tribunalfile number peg 306 2018judgment judge kendallhearing date 14 june 2019date last submission 14 june 2019delivered perthdelivered 31 july 2019representationapplicant personcounsel first respondent mr p hannansecond respondent submitting appearance save costssolicitors respondent australian government solicitororders 1 compliance r 44 05 thefederal circuit court rule 2001 cth dispensed pursuant r 1 06 thefederal circuit court rule 2001 cth 2 time bring application judicial review extended date filing pursuant tos 477 2 themigration act 1958 cth 3 application judicial review dismissed federal circuit courtof australiaat perthpeg 306 2018czi18applicantandminister home affairsfirst respondentadministrative appeal tribunalsecond respondentreasons judgmentby application filed court 7 june 2018 applicant seek judicial review decision administrative appeal tribunal tribunal dated 30 april 2018 tribunal determined jurisdiction review decision delegate minister immigration border protection minister refuse grant protection visa visa applicant filed application review within time limit imposed legislation governing appeal tribunal applicant seek judicial review tribunal decision pursuant tos 476 1 themigration act 1958 cth act succeed applicant must demonstrate jurisdictional error part tribunal factual backgroundhaving reviewed court book cb filed proceeding detail court concludes minister written submission filed 16 may 2019 accurately summarise background matter 3 9 summary disputed submission provided argumentative nature court adopts summary contained therein provides relevantly follows applicant citizen malaysia born 29 march 1995 cb 19 arrived australia 8 june 2016 ud 601 electronic travel authority visa cb 42 5 april 2017 applicant applied former department immigration border protection department protection visa cb 1 17 application applicant provided current residential address australia email address receive communication department cb 4 5 16 january 2018 delegate minister refused grant applicant visa cb 42 61 applicant notified delegate decision letter department dated 16 january 2018 notification letter notification letter sent email applicant email address cb 37 47 87 88 copy notification letter delegate attached reason judgment asannexure notification letter discussed detail relevantly however noted letter advised applicant could apply tribunal review delegate decision application review made within 28 day date taken notified decision taken received department letter end day notification letter transmitted cb 38 40 3 april 2018 applicant lodged application tribunal review delegate decision cb 62 63 6 april 2018 tribunal wrote applicant inviting comment validity application cb 71 73 relevantly applicant advised application tribunal filed outside 28 period filing appeal applicant responded tribunal letter 23 april 2018 enclosing statutory declaration dated 20 april 2018 applicant claimed migration agent give copy notification letter delegate decision provide information timeframes review tribunal cb 78 81 30 april 2018 tribunal decided jurisdiction review delegate decision application review filed time cb 84 86 applicant advised tribunal decision letter dated 1 may 2018 sent email applicant email address date cb 82 83 tribunal decisionthe tribunal decision short provided full provides follows 1 application review decision delegate minister immigration 16 january 2018 refuse grant protection visa unders 65of themigration act 1958 act review application lodged tribunal 3 april 2018 following reason tribunal found jurisdiction review decision 2 applicant immigration detention day applicant notified decision application review decision made within 28 day commencing day r 4 31 2 themigration regulation 1994 3 6 april 2018 tribunal officer wrote applicant advising appeared review application valid application lodged within relevant time limit applicant invited comment whether valid application made 4 23 april 2018 applicant responded tribunal letter way statutory declaration dated 20 april 2018 state came australia visitor visa applied protection visa assistance migration agent paid 2 800 deposit believed valid visa agent asked pay money money paid agent sent copy visa visa already expired agent give copy visa refusal provide information timeframes review tribunal 5 material tribunal indicates applicant notified decision letter dated 16 january 2018 dispatched email tribunal satisfied applicant notified decision accordance statutory requirement 6 applicant validly notified primary decision application review must lodged tribunal within relevant prescribed period tribunal power extend time limit application received outside time period tribunal jurisdiction 7 court held case even applicant fault making late application including circumstance applicant application lodged time negligence part migration agent lthough harsh outcome fact agent negligence provides basis set aside tribunal decision term act strict clear neither tribunal court power allow extra time lodgement review application tribunal regardless reason delay 8 tribunal find applicant taken notified decision 16 january 2018 494c act therefore prescribed period apply review ended 12 february 2018 9 application review received tribunal 3 april 2018 application review made accordance relevant legislation tribunal jurisdiction matter decision10 tribunal jurisdiction matter citation omitted proceeding courtthe applicant seek issue constitutional writ setting aside tribunal decision application judicial review contains seven ground review 1 tribunal member failed consider application 2 tribunal member give time extend 3 tribunal member never give chance review application 4 tribunal member consider application 5 tribunal member satisfy late application still explain situation member writing 6 agent cheating statutory declearation perth police station prove received document time member give chance review 7 tribunal member jurisdiction matteras minister pointed court previously presented ground different applicant dap17 v minister home affair anor 2019 fcca 801 significant jurisprudential development since case heard determined ground review merit scrutiny applicant afforded opportunity registrar court order dated 1 august 2018 file amended application affidavit written outline submission material filed applicant hearing applicant unrepresented appeared assistance tamil interpreter minister represented mr hannan counsel court grateful mr hannan interpreter considerable assistance hearing matter patience assistance displayed counsel particular went far beyond normally expected model litigant much appreciated applicant arrived hearing without document confirmed however served court book minister written submission mr hannan also confirmed document relevant matter sent address service provided applicant mr hannan instructor provided applicant copy court book minister written submission applicant reference hearing interpreter translated asked court mindful subtlety jurisdictional error often difficult trained legal mind navigate let alone unrepresented applicant limited english speaking skill assist applicant court explained court role applicant meaning jurisdictional error court explained possible category jurisdictional error exhaustive sometimes overlap migration decision commonly include limited following category decision maker identifies wrong issue asks wrong question craig v state south australia 1995 hca 58 1995 184 clr 163 craig 198 decision maker ignores relevant material craigat 198 decision maker relies irrelevant material craigat 198 decision maker fails consider claim relevant integer claim htun v minister immigration multicultural affair 2001 194 alr 244 42 decision maker fails follow mandatory procedure saap v minister immigration multicultural indigenous affair anor 2005 hca 24 2005 228 clr 294at 207 208 decision maker show actual apprehended bias szrui v minister immigration multicultural affair citizenship 2013 fcafc 80at 2 azaey v minister immigration border protection 2015 fcafc 193at 16 17 andwhere decision illogical irrational unreasonable minister immigration citizenship v szmds 2010 hca 16 2010 240 clr 611at 131 minister immigration citizenship v li 2013 hca 18 2013 249 clr 332at 26 28 minister immigration border protection v singh 2014 fcafc 1 2014 231 fcr 437at 44 also explained applicant court cannot review merit tribunal decision grant visa seek rather role court restricted determining tribunal made material error arriving decision arrived minister immigration ethnic affair v wu liang 1996 185 clr 259 272 court interpreter translate applicant ground review might better engage court background court invited applicant explain thought tribunal wrong although entirely clear effect applicant expressed concern conduct migration agent court address issue considering ground 5 6 comment made relation issue applicant nothing substantive add relation ground review competence application extension time requestit noted applicant failed file judicial review application court within 35 day time period ie 4 june 2018 specified 477 1 act two day late without order pursuant 477 2 act court lack jurisdiction review matter court note minister submission concerning competence judicial review application 22 23 submission highlight applicant made application writing extension time otherwise indicated necessary interest administration justice extend time filing required 477 2 act applicant also failed file affidavit explaining delay explaining necessary interest administration justice court grant extension required r 44 05 2 c thefederal circuit court rule 2001 cth rule authority court dispute suggests application dismissed incompetence basis alone sandan v minister immigration border protection 2015 fcca 1166 2015 296 flr 48at 13 15 however noting applicant unrepresented poor grasp english language court addressed judicial review application application extension made therefore competent extent necessary order dispensing compliance r 44 05 2 c rule whether extension time granted court note delay applying court minimal two day hence prejudice minister minimal explanation delay provided reason articulated light recent full court matter ofdfq17 v minister immigration border protection 2019 fcafc 64 dfq17 least argument made relation ground review judicial review application overall issue arising case sufficient interest administration justice extension granted pursuant 477 2 reason court grant applicant extension time within file application judicial review considerationgrounds 1 4 71 tribunal member failed consider application 2 tribunal member give time extend 3 tribunal member never give chance review application 4 tribunal member consider application 7 tribunal member jurisdiction matterthe court agrees minister ground 1 4 7 relate issue ie whether tribunal erred determining whether jurisdiction hear application relevant issue turn upon whether tribunal correct determine jurisdiction consider application requires court determine content notification letter advising delegate decision complied 66 act applicant properly notified accordance act andwhether applicant application fact filed outside time limit prescribed notificationas noted copy notification letter relevant matter necessary redaction attached reason annexure applicant review delegate decision must bring application within 28 day indicated 412 1 b act proscribed reg 4 31 2 themigration regulation 1994 cth regulation 28 day period commence delegate department must notify applicant decision accordance requirement 66 act notification accord requirement notification decision time period commence zhan v minister immigration multicultural indigenous affair 2003 fca 327 2003 128 fcr 469at 62 court note asked minister whether light comment highlighted indfq17at 47 discussed minister maintained position requirement 66 2 met notification letter invalid minister maintained position court proceeded basis dfq17the legislative provision highlighted relevant matter extensively canvassed perram j indfq17 counsel minister argued fact case distinguishable fact indfq17 useful analysedfq17in detail dfq17concerned appeal administrative appeal tribunal tribunal asked review decision delegate refuse appellant application protection visa refusal communicated appellant letter dated 3 february 2017 annexed reason asannexure b letter sent post office box address appellant provided protection visa application justice perram explained appeal tribunal must brought within 28 day date upon visa applicant taken received notification visa application refused minister contended appellant duly notified delegate application visa refused mean letter dated 3 february 2017 consequently needed lodge review application 13 march 2017 28 march 2017 tribunal concluded application time could entertained honour noted relevantly second page letter sent applicant heading review right letter say application merit review refusal decision must given aat within prescribed timeframe timeframe commences day taken notified decision end end 28 day third page letter heading financial case worker assistance letter say letter mailed australian address within australia taken received seven working day date letter working day include weekend public holiday australian state territory letter posted discussed justice perram found letter question obscure confusing honour explained question court whether letter explains date review application must lodged obscure manner state time within application must lodged within meaning 66 2 ii visa applicant notified refusal 28 day period apply review yet commenced run assessing whether time application tribunal made stated letter 3 february 2017 honour noted 66 act requires minister notify applicant decision refuse grant visa section 66 2 ii relevantly provides notification decision 2 notification decision refuse application visa must applicant right decision reviewed underpart 5or7or section 500 state ii time application review may made honour asked time review application must made noted indfq17 applicant immigration detention issue governed reg 4 31 2 regulation provides 4 31 time lodgement application tribunal 2 paragraph 412 1 b act applicant immigration detention day applicant notified apart 7 reviewable decision period application review decision must given tribunal applicant 28 day commencing day applicant notified decision note minister give person document method specified section 494b act person taken received document time specified section 494c act respect method honour explained light legislative provision unsuccessful applicant must make review application tribunal within 28 day day applicant notified decision decision fall non working day next working day honour asked applicant notified refusal decision noted answer question turn upon mode delivery refusal communicated noted indfq17 decision sent pre paid post accordingly matter governed 494c 4 provides 494c person taken received document minister dispatch prepaid post prepaid mean 4 minister give document person method subsection 494b 4 involves dispatching document prepaid post prepaid mean person taken received document document dispatched place australia address australia 7 working day place address date document b case 21 day date document honour highlighted letter indfq17was sent address sydney post office box sydney consequently subclause applied appellant taken received decision 14 february 2017 7 working day date letter 3 february 2017 hence letter 3 february 2017 effective notification decision effect reg 4 31 2 review application tribunal made appellant within 28 day e 13 march 2017 assessed letter relevant legislative provision honour expressed concern follows 45 pausing noted calculation 13 march 2017 3 february 2017 straightforward exercise section 494c 4 us expression 7 working day date document whereas reg 4 31 2 stipulates 28 day commencing day applicant notified decision applyings 36 1 theacts interpretation act 1901 cth applies reg 4 31 2 virtue ofs 13 1 thelegislation act 2003 cth regard difference day working day 7 day period inclusive first day weekend public holiday 28 day period inclusive first day weekend public holiday accordingly 14 february 2017 must double counted whilst previous decision court accepted notification letter need draw attention need double count day person deemed notified decision see example cao v minister immigration citizenship 2009 fca 586 176 fcr 396per north j 2009 fca 586 176 fcr 396 cgj16 v minister immigration border protection 2018 fca 1437per allsop cj serve highlight certain need clarity 46 first step appellant argument 66 2 ii requires notification refusal decision must state time application review may made second step factual contention letter annexed obscure cannot said state time final step decision sent unsuccessful applicant state time review may made tribunal notified within meaning reg 4 31 2 28 day period yet begun run 47 appeal conducted third step disputed minister 48 attention may therefore confined first two step 49 one start meaning given word state 66 2 ii 58 conclude 66 2 us word state mean notification must set information subsection way complete clear well required letter 3 february 2017 clearly convey appellant period could seek review ended 13 march 2017 59 turning letter 3 february 2017 question whether state time within review application must made within meaning 66 2 question law vetter v lake macquarie city council 2001 hca 12 202 clr 439at 450 24 per gleeson cj gummow callinan jj explained question whether notification stated time application review may made necessarily devolves inquiry whether information clearly conveyed 60 described letter referred time application review may made different section across different page page 2 letter heading review right letter referred 28 day period appellant could seek review delegate refusal decision letter referred seven working day period appellant taken received notification page 3 heading financial case worker assistance date letter top left page 1 three separate piece information across three page different heading appellant whilst remembering double count 14 february 2017 expected calculate 13 march 2017 61 minister submitted nothing misleading erroneous putting statement date letter taken received separate page period review may sought matter letter proceeded reference date accordingly made logical drafting sense express deemed notification period separately explanation period review may sought whilst may explain intent behind drafting choice minister present question whether letter clearly conveyed time application review may made ended 13 march 2017 62 doubt case letter 3 february 2017 failed convey clearly information review application made 13 march 2017 piecemeal entirely obscure essentially incomprehensible consequently letter state matter 66 2 ii dispute meant time yet commenced run tribunal erred concluding review application time therefore wrong thinking jurisdiction entertain review application applying dfq17 fact casethe minister submitted applicant case sent notification letter annexure email unlike applicant indfq17 sent notification letter post easier applicant determine time lodge application tribunal minister conceded letter case clear could clear enough certainly essentially incomprehensible court questioned whetherdfq17implied stood proposition notification letter shouldexpressly statethe date applicant apply tribunal review delegate decision minister submitted thatdfq17did stand proposition rather dfq17simplyrequires notification letter expressed clarity sufficient person calculate filing date required individual still responsibility determine review lodged must hindered regard letter whose content obscure essentially incomprehensible court agrees reading entirety perram j decision indfq17 cannot said decision stand proposition filing date must expressly provided might preferable arguably straightforward administrative exercise approach legally required light court turn attention determination whether level clarity contained notification letter case sufficient state time applicant file application review tribunal notification letter state time file application review case reference annexure noted notification letter span 4 page relevantly top page 1 date decision provided 16 january 2018 top page 2 heading review right base page 1 reference 28 day time period applicant file review application andon page 3 heading financial case worker assistance following paragraph appears letter sent email taken received end day transmitted minister agreed court information could better placed odd example information page 3 read letter sent email taken received end day transmitted appears heading financial case worker assistance arguably information would better placed page 1 nonetheless minister maintained fact notification letter sent via email made easier hence clearer applicant calculate time within review filed tribunal court agrees noted notification letter indfq17 reference annexure b reason judgment provided information applicant proceeding follows date decision 3 february 2017 appears top page 1on top page 2 heading review right base page 1 reference 28 day time period within applicant required file review application andon page 3 heading financial caseworker assistance following paragraph appears letter mailed australian address within australia taken received seven working day date letter working day include weekend public holiday australian state territory letter posted counsel minister contended indfq17it paragraph point c found problematic likely cause confusion part legally unsophisticated applicant argued paragraph obscure incomprehensible lacked level clarity required sufficiently state required applicant review per 66 2 ii act court agrees case unlike indfq17 applicant required calculate 7 working day period also remembering double count particular date rather required two piece information 28 day time limit andthe date receipt email attached notification letter court considers notification letter clear enough indfq17 added complexity applicant consider additional seven day working period deemed received notification remembering double count received notification letter post applicant received notification email hence required calculation limited determining 28 day period date email date clearly noted top notification letter need indfq17 determine new date gage time period started ie seven day date notification including weekend public holiday count 28 day period included weekend public holiday applicant information needed notification faced differing definition day required undertake two separate calculation rather one straightforward calculation relevant 28 day period information spread across three separate page arguably could provided one page piecemeal provision relevant information render notification letter whole invalid noted inali v minister home affair 2019 fca 1102at 28 30 letter must read whole mere fact various piece information appear different page mean information clearly conveyed court satisfied notification letter indicated applicant review right clearly enough notification suffer deficiency evident indfq17 fact relevant applicant quite different basis court concludes notification letter satisfies requirement 66 2 act applicant found received relevant notification 16 january 2018 applicant notified visa application form applicant provided email address response following information department prefers communicate electronically provides faster method communication delivery information correspondence including outcome application may sent applicant email address court note information indicates correspondence may sent applicant email address applicant also provided residential address open department use one method provided 494b haque v minister immigration citizenship 2010 fca 346at 64 section 494b 5 b act provides transmission email delegate decision prescribed way communicating notice delegate decision sent via email applicant day decision made 16 january 2018 virtue 494c act applicant taken received document end day document transmitted court satisfied applicant notified delegate decision accordance requirement stipulated act regulation application lodged time determined applicant received delegate decision 16 january 2018 applicant 28 day apply review tribunal 3 april 2018 relevantly 50 day prescribed time period lapsed tribunal discretion power extend time applicant could lodge review application lodged application outside statutory time limit prescribed regulation tribunal jurisdiction review decision beni v minister immigration border protection 2018 fcafc 228 ground 1 4 7 evidence jurisdictional error part tribunal must accordingly dismissed ground 5 65 tribunal member satisfy late application still explain situation member writing 6 agent cheating statutory declearation perth police station prove received document time member give chance review turning briefly ground 5 6 applicant concern regard entirely clear credible evidence court applicant fact ever represented migration agent clear applicant sent notification letter email address provided tribunal extent concern arise relation migration agent evidence also show tribunal addressed issue 4 7 written reason noting decision inszrha v minister immigration anor 2013 fmca 131 tribunal correctly concluded even negligence part another circumstance applicant notified required deemed received hat letter expected comply time requirement stipulated legislation even mistake made another result application filed late error evident approach time limit application review tribunal strictly applied clear relevant documentation sent correct address cqp15 v minister immigration border protection 2017 fca 854at 44 last email address applicant provided email address notification sent material department address provided applicant correspondence department required send address cheng v minister immigration citizenship 2011 fca 1290 2011 198 fcr 559at 46 47 circumstance applicant deemed received notification letter required adhere time limit detailed letter applicant way feel aggrieved action migration agent court suggests contact office migration agent registration authority agency well suited address concern sort raised ground 5 6 identify jurisdictional error part tribunal must accordingly fail conclusionthere jurisdictional error demonstrated ground review otherwise apparent tribunal decision applicant application judicial review accordingly dismissed certify preceding eighty three 83 paragraph true copy reason judgment judge kendalldate 31 july 2019
Shaheed & Kameel [2022] FedCFamC1F 661 (2 September 2022).txt	shaheed kameel 2022 fedcfamc1f 661 2 september 2022 last updated 1 november 2022federal circuit family court australia division 1 shaheed kameel 2022 fedcfamc1f 661file number pac 1535 2022judgment brasch jdate judgment 2 september 2022catchwords family law child best interest communication father made oral application seeking communication child serious allegation family violence made party mother child live undisclosed location country consideration child best interestslegislation evidence act 1995 cth 140family law act 1975 cth s 60ca 60b 60cc 60cc 2 60cc 3 60cc 2a 69zlcases cited blinko blinko 2015 famcafc 146eaby speelman 2015 flc 93 654 2015 famcafc 104franklyn v franklyn 2019 famcafc 256goode goode 2006 flc 93 286 2006 famca 1346isles nelissen 2022 fedcfamc1a 97marvel marvel 2010 43 fam lr 348 2010 famcafc 101mazorski albright 2007 37 fam lr 518 2007 famca 520r c 1993 famca 62salah salah 2016 flc 93 713 2016 famcafc 100 ah 2010 famcafc 13leandra randles 2021 fedcfamc1a 51division division 1 first instancenumber paragraph 62date last submission 22 august 2022date hearing 4 august 2022place sydneycounsel applicant m gibbonssolicitor applicant sandhu legal professionalssolicitor respondent family law practice australia pty ltdsolicitor independent child lawyer family focus legal pty ltdorderspac 1535 2022federal circuit family court australia division 1 mr shaheedapplicantand m kameelrespondentindependent child lawyerorder made brasch jdate order 2 september 2022the court order father oral application communication child x born 2013 dismissed court note effect order order made child communication father matter listed interim hearing 28 november 2022 10 00 child impact report available interim hearing 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 pseudonymshaheed kameelis approved pursuant tos 121 9 g thefamily law act 1975 cth reason judgmentbrasch j introductionthis matter came 4 august 2022 case management hearing order made consent party child born 2013 attend upon office private professional report analogous court provided child impact report interview report scheduled 25 august 2022 person unless professional directed otherwise interim hearing listed 28 november 2022 registry mother given leave appear microsoft team towards conclusion case management hearing father representative brought oral application communication father child would come surprise party earlier hearing registrar 6 may 2022 father agitated zoom time child mother give instruction proposal told case management hearing registrar 6may 2022 order contained following notation f today date agreement party whether father communicate child telephone video applicant father may still press interim order made regard asked oral application independent child lawyer icl said objection telephone communication ordered today however might prejudice mother circumstance evidence mother opposed communication legal representative saying already indicate mother consent assertion party agreed procedure could determine matter chamber thus ordered party exchange proposal agreement could reached proposed order sent chamber consideration agreement could reached proposed minute order written submission longer five page required 12 august 2022 mother father submission received ordered unfortunately submission icl received 22 august 2022 say critically icl ill materialthe respondent mother relied upon following document filed 25 april 2022 affidavit m kameel b affidavit m b c affidavit mr c referred former family friend notice child abuse family violence risk e parenting questionnaire f written submission received 12 august 2022 best father submission relied upon affidavit 13 april 2022 along written submission received 12 august 2022 said icl provided written submission 22 august 2022 backgroundby way brief background relevant oral application mr shaheed born 1980 father m kameel born 1983 mother born country party father came reside australia early 2006 mother moved australia 2007 according mother party commenced cohabitation australia 2010 agreed married country 2012 thereafter returned australia month later party separated roof november 2020 mother child moved former matrimonial home 15 august 2021 parent one child x born 2013 country child mother child returned australia child six month old party allege serious family violence father case also made allegation violence abuse former family friend mother allegation included way limited following january 2020 alleged father slapped face took shirt pushed house half naked locked door mother affidavit filed 25 april 2022 paragraph 39 said son present least within hearing also alleged april 2020 day later burned hand cooking heard child screaming went child alleged saw father beating child clothes hanger also alleged mr shaheed squeezed swollen hand blood pu came mother affidavit filed 25 april 2022 paragraph 43 mother many allegation also include early 2021 made attempt call police abused beaten badly mr shaheed mr shaheed managed snatch phone away poured kerosene body threatening called police would kill u cigarette lighter hand occurred presence x child cry uncontrollably forced mr shaheed promise would never inform police anyone incident still kept dress wearing time incident mr c came time save dire situation took photo mr shaheed early 2021 dress sealed plastic bag another day kerosene incident could sleep many night nightmare burnt alive mr shaheed photograph mr shaheed kerosene dress kerosene plastic bag part annexure cherein mother affidavit filed 25 april 2022 paragraph 47 former family friend deposed similar term said witnessed mother also deposed state city e late 2021 could escape go country travel late 2021 save x life concerned mr shaheed travel country possibly kill x broken promise tell anyone mr shaheed u also one day return australia mr shaheed possibly kill ever required attend court find residing australia mr shaheed dangerous x fortunate alive mother affidavit filed 25 april 2022 paragraph 80 understand addition asking positive finding violence abuse trial also advancing colloquially called arussel closecase r c 1993 famca 62 father denied allegation violence abuse made mother denied child fearful father also made allegation family violence perpetrated mother former family friend living time also contended event took place presence child father contended mother encouraged child throw stone father used excessive force discipline child allegation include early 2021 saw child cry bruise arm father added upon asking child said word effect mom sic beat stick threw rice father affidavit filed 13 april 2022 paragraph 13 2017 alleged former family friend struck across face arm hid sic hand added mother joined assault hit back kicked leg father affidavit filed 13 april 2022 paragraph 16 early 2021 father alleged former family friend charged towards slapped face grabbed hand mother joined began hitting punching well father affidavit filed 13 april 2022 paragraph 19 report nsw police family violence order place common ground child father time communication since late 2021 date mother alleged follows argument ensued pushed away picked stuff threw pushed extremely hard fell onto floor hit hand glass bottle cut hand started bleeding dress living room later car mr shaheed went room locked door unfortunately x witnessed whole incident x helped get floor said coming shouted mr shaheed beat want mom sic hugged x filled blood walked mr c outside matrimonial home waiting car afterwards emailed mr shaheed subject line u kill attached 3 photo injury inflicted mother affidavit filed 25 april 2022 paragraph 54 father affidavit silent issue one affidavit father predates affidavit mother alleged late 2021 mother child left australia reside undisclosed location country party dispute whether father consented cannot need resolve dispute purpose oral application principlesthis interim hearing accordingly shorter reason permitted pursuant tosection 69zlof thefamily law act 1975 act also matter fall withinpart viiof theact object principle at 60b best interest child paramount deciding whether make particular parenting order relation child provided bys 60caof act consideration assist determining best interest set at 60cc full court ingoode goode 2006 36 flc 93 286 goode set paragraph 81 82 approach adopted interim parenting matter making interim decision court still often faced conflicting fact little helpful evidence dispute parent constitutes best interest child however legislative pathway must followed interim case would involve following identifying competing proposal party identifying issue dispute interim hearing identifying agreed uncontested relevant fact considering matter in 60ccthat relevant possible making finding interim proceeding may little uncontested evidence enable limited consideration matter take place deciding whether presumption in 61dathat equal shared parental responsibility best interest child applies apply reasonable ground believe abuse child family violence interim matter court consider appropriate apply presumption presumption apply deciding whether rebutted application would child best interest presumption applies rebutted considering making order child spend equal time parent unless contrary child best interest result consideration one matter in 60cc impracticable equal time found child best interest considering making order child spend substantial significant time defined in 65daa 3 parent unless contrary child best interest result consideration one matter in 60cc impracticable neither equal time substantial significant time considered best interest child making order discretion court best interest child result consideration one matter in 60cc presumption applied rebutted making order best interest child result consideration one matter in 60cc andeven court may need consider equal time substantial significant time especially one party sought even neither sought court considers affording procedural fairness party best interest child present proposal party short compass whether order communication child father mindful discrete nature oral application ands 69zlof act intend traverse said ingoodeabove example application respect parental responsibility time order sought common fact though child father time communication since september 2021 serious allegation family violence made parent dispute end refer toleandra randles 2021 fedcfamc1a 51at 35 however follow merely fact dispute evidence issue disregarded one must approach fact finding interim mater considerable circumspection similarly ins ah 2010 famcafc 13 full court said 100 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 recently full court decision offranklyn v franklyn 2019 famcafc 256observed 72 73 serious allegation cannot ignored interlocutory event simply put issue seesalah salah 2016 flc 93 713 33 45 eaby speelman 2015 famcafc 104 2015 flc 93 654at 18 19 remaining astute potential risk thing assuming truth reacting impulsively everything mother alleged without regard evidence wider context interlocutory hearing extent possible judge enjoined make decision interim order based agreed fact le contentious evidence inference fairly arise seegoode goode 2006 famcafc 1346 2006 flc 93 286at 68 decision must still made despite contentious evidence judge obliged act strength evidence presented relatively weak entitled treat contrary inherent premise mother submission support ground 2 c judge required treat untested evidence bearing weight risk unacceptable risk heart mother written submission full court recently clarified inisles nelissen 2022 fedcfamc1a 97 isle past allegation violence abuse determined reference tos 140of theevidence act 1995 cth however case concerned final hearing whereas interim consideration appeal court added assessment unacceptable risk cannot measured civil standard proof rather look realistic possibility seeislesat 86 cannot however interim basis make finding disputed allegation violence abuse therefore finding help inform future realistic possibility instead well established court ought take conservative approach interim hearing see examplemarvel marvel 2010 famcafc 101 2010 43 fam lr 348 cited approval full court ineaby speelman 2015 famcafc 104 2015 flc 93 654104 full court commented 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 122 123 ins 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 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 short given nature allegation dispute must take cautious approach consider likely impact child event controversial assertion acted upon rejected must also borne mind application right whether order communication father child section 60cc considerationsin determining best interest child two primary consideration many additional consideration take account taken matter account even though specifically identify subsection 69zl act permitted interim hearing give reason short form two primary consideration set section 60cc 2 act referred twin pillar decision ofmazorski albright 2007 famca 520 2007 37 fam lr 518are benefit child meaningful relationship child parent b need protect child physical psychological harm subjected exposed abuse neglect family violence required pursuant section 60cc 2a act give greater weight second two primary consideration submission discussionit mother case child communication father would contrary child best wish mother submission essentially father posed unacceptable risk psychological harm child permitted communicate child made submission borne affidavit lack insight grave fear father would make enquiry child whereabouts therefore posing high risk family violence mother child deposed fear would travel country kill child mother submitted making order communication father child child would made wish would extremely traumatising child mother submission filed 12 august 2022 paragraph 27 evidence support submission present purpose disregard may something upon child impact report shed light gravamen father submission child unilaterally taken country pretence holiday position child share great loving relationship father submission dated 12 august 2022 paragraph 1 concern safety risk child permitted contact father contended supporting documentation support serious allegation raised mother pertaining family violence father submitted continuous keeping away child australia facilitating contact father child abuse mother position would affect child relationship father future development parent affection useful child development father submission like mother highlighted various serious allegation made manner none determine oral application whilst seemed icl open communication order made 4 august 2022 icl written submission clear support communication submitted summary pending order child spend time communicate father basis interim proceeding await pending expert assistance independent material agree agree party make serious allegation much said presence child whilst cannot resolve dispute interim basis authority referred tell must act cautiously circumstance current instead child impact report november may better assist determining might young boy best interest interim basis reaching view regard following s60cc 3 additional consideration issue relating child view level maturity culture relationship subsection 3 view expressed child factor child maturity level understanding court think relevant weight give child view subsection 3 b nature relationship child child parent person including grandparent relative child subsection 3 g maturity sex lifestyle background including lifestyle culture tradition child either child parent characteristic child court think relevant andsubsection 3 h issue pertaining culture child child aboriginal torres strait islander applicable parent tell child impact report matter week independent source information consider factor issue relating parent decision making time spent child fulfilled obligation attitude capacity exercise responsibility subsection 3 c extent child parent taken failed take opportunity participate making decision major long term issue relation child spend time child communicate child subsection 3 ca extent child parent fulfilled failed fulfil parent obligation maintain child subsection 3 f capacity child parent person provide need child including emotional intellectual need andsubsection 3 attitude child parental responsibility child parent parent tell child impact report matter week effect change subsection 3 likely effect change child circumstance including likely effect child separation either parent child person including grandparent relative child living common ground child time communication father since september 2021 prepared make change arrangement fulsome interim hearing week away practical difficulty implementation subsection 3 e practical difficulty expense child spending time communicating parent whether substantially affect child right maintain personal relation direct contact parent regular basis would nopracticaldifficulties communication order stand fear mother deposes father asking child question ascertain location better equipped consider child impact report issue family violence subsection 3 j family violence involving child member child family andsubsection 3 k family violence order applies applied involving child member child family applicable taking account number stated matter loom large party case requires said taking cautious approach order sought oral application father child communication avoiding proceeding subsection 3 l whether would preferable make order would least likely lead institution proceeding relation child matter currently irrelevant matter listed interim hearing november 2022 relevant matter subsection 3 fact circumstance court considers relevant risk labouring point child impact report soon may shed light may consider best interest child conclusion parentingfor reason given particular authority referred require act cautiously given serious allegation made party child impact report matter week dismiss oral application communication child father however suggest read interpreted father specific outcome mean hearing interim application may something completely different independent evidence professional chosen party assist inform consideration may well icl party document returned issuing subpoena might also assist consideration child best interest interim basis certify preceding sixty two 62 numbered paragraph true copy reason judgment honourable justice brasch associate dated 2 september 2022
Construction, Forestry, Mining and Energy Union re CFMEU and Bruno Plastering Pty Ltd Building and Construction Industry Collective Bargaining Agreement 1999 - 2002 - PR922592 [2002] AIRC 1132; (17 September 2002).txt	construction forestry mining energy union cfmeu bruno plastering pty ltd building construction industry collective bargaining agreement 1999 2002 pr922592 2002 airc 1132 17 september 2002 pr922592australian industrial relation commissionworkplace relation act 1996s 170ljcertification agreementconstruction forestry mining energy union ag2001 6882 cfmeu bruno plastering pty ltd building construction industry collective bargaining agreement 1999 2002various employeesbuilding metal andcivil construction industriesdeputy president hamiltonmelbourne 17 september 2002certification division 2 agreement organisation employee non compliance 170lm application dismissed decision 1 matter concern application certification agreement unders170ljof theworkplace relation act 1996 act matter initially came 26 june 2002 issued decision indicating matter would listed employer representative notified hearing pr919548 2 matter listed 29 august construction forestry mining energy union cfmeu employer employer representative notified hearing 3 party attended hearing 4 matter lodged ten day outside time prescribed act therefore comply 170lm 2 application must made later 21 day made accordance withsection 170lj day approved mentioned subsection 170lj 2 5 submission put requesting extension time addressing statutory test certification 6 matter find requirement act met therefore dismissal application commission deputy presidentprinted authority commonwealth government printerprice code
Rand and Ors & Liquidator, S Pty Ltd [2010] FamCA 1010 (29 October 2010).txt	rand or liquidator pty ltd 2010 famca 1010 29 october 2010 last updated 19 november 2010family court australiarand or liquidator pty ltd 2010 famca 1010family law practice procedure stayapplicant mr randapplicant m randapplicant c pty ltdrespondent liquidator pty limited liquidation file number syf2153of2001date delivered 29 october 2010place delivered sydneyplace heard sydneyjudgment hon justice cohenhearing date 18 october 2010representationcounsel applicant mr feller sc mr milanovicsolicitor applicant cadmus lawyerscounsel respondent mr cotman sc mr tobinsolicitor respondent brown partnersorders 1 application case filed 18 october 2010 mr rand m rand order 1 2 therein hereby dismissed 2 application case filed 18 october 2010 c pty limited order 1 therein hereby dismissed 3 cost reserved notedthat publication judgment pseudonymrand or liquidator pty ltdis approved pursuant tos 121 9 g thefamily law act 1975 cth family court australia sydneyfile number syf 2153 2001mr randapplicantms randapplicantc pty ltdapplicantandliquidator pty limited liquidation respondentreasons judgmenton 28 july 2010 made order proceeding liquidator pty limited liquidation shall refer liquidator one hand mr g rand mr rand wife mr n rand shall refer collectively rand company mr rand control c pty limited c pty ltd liquidator succeeded aspect proceeding decided rand c pty ltd appealed application case filed 18 october 2010 rand seek stay order 1 3 4 c pty ltd seek stay order 2 5 order pending application leave appeal granted pending appeal however stay application argued mr feller sc appropriately limited application stay order 4 5 order require c pty ltd file serve point claim within 21 day mr rand wife file serve point defence within 21 day failing c pty ltd application dismissed judgment entered mr mr rand liquidator claim jennings construction ltd v burgundy royale investment pty ltd 1986 hca 84 1986 161 clr 681is case stay sought pending application high court australia special leave appeal case brennan j emphasis extraordinary nature jurisdiction grant stay pending hearing application special leave appeal application single judge family court stay interlocutory order pending application full court family court leave appeal quite analogous application brennan j dealing stay extraordinary remedy grant take away successful party prima facie entitlement benefit judgment succeeded well undermine presumption judgment correct seere middle harbour investment ltd unrep nsw court appeal 15 december 1976 per mahoney ja member court agreed cited approval full court federal court australia inpowerflex service pty ltd or v data access corporate 1996 fca 460 1996 67 fcr 65 latter case authority proposition accept correct court grant stay special circumstance shown enough applicant stay prove balance appropriate case stay sufficient case exercise court discretion exercised favour applicant matter considered determining whether stay appropriate first according brennan j p 685 appears create threshold stay granted required preserve subject matter litigation honour referred 4 relevant consideration must undertaken deciding whether grant stay held stay necessary preserve subject dispute 4 consideration 1 whether substantial prospect special leave appeal granted case analogy would consider whether substantial prospect leave appeal granted considering prospect one must consider prospect success appeal leave granted leave granted appeal reasonable prospect success 2 whether applicant failed take whatever step necessary seek stay court matter pending application leave appeal made time application stay reasonably prompt judge whose judgment leave appeal sought rule 22 11 provides appeal operate stay party appealed applied leave appeal party may apply stay appears germane note rule 22 11 3 provides stay application must heard judge made order appeal suggested stay application heard finding made part base order made sought appealed may ground disqualify hearing stay application apprehended bias ground would exist every stay application successful party appeal usually ask stay order pending appeal rule brennan j requirement application stay first made court made order sought appealed put suggestion true light counsel ask disqualify ground 3 whether grant stay cause loss respondent application stay consideration undertaken assumption refusal stay result subject matter litigation lost applicant threshold issue must create assumption additional consideration enlivened appears reason honour refer specifically consideration whether refusal stay take applicant benefit successful appeal render successful appeal nugatory 4 balance convenience lie really involves consideration relative hardship result refusal grant stay including extent effect delay applicant submission quite straightforward say balance considering threshold factor referred applicant demonstrated appropriate case exercise court discretion favour client refer threshold factor regard critical critical basis determining whether grant exceptional order stay ought considered rather refused reason given mr feller basic submission appeal order made fact appeal application leave appeal confused appeal entrenched concept requirement leave principle interlocutory proceeding finally decide real issue subject litigation ordinarily inherent irreversible ultimate detriment party fails interlocutory application avoid detriment pending appeal applicant need file point defence point claim within time avoid disadvantage pending hearing leave application refusal stay render appeal abortive far relates order respect stay sought said order appealed would result judgment applicant notwithstanding core appeal challenge jurisdiction court refusal stay render appeal abortive applicant conduct failing file point claim point defence time could filed time leave granted appeal able deal jurisdictional issue transfer issue security cost issue order including self executing order result failure file pleading time overturned full court see fit applicant able get full benefit success appeal extent successful avoid said judgment course file point claim point defence also prima facie avoid judgment interim hearing leave application leave granted determination appeal court jurisdiction cannot actual determination judgment applicant detriment liquidator grant stay said matter cannot proceed issue jurisdiction appropriateness court hear principal matter decided accept stay cause liquidator detriment would result liquidator learning basis c pty ltd claim rand defence claim claim defence must fact occurred year ago liquidator cannot complete liquidation pay creditor applicant case determined creditor whose claim dispute entitled paid wait longer necessary shareholder pty ltd including wife entitled paid know liquidator evidence might need response point defence point claim know time elapses liquidator commence gathering evidence feel need difficult obtain memory fade witness move record lost refusal stay result liquidator promptly learning case meet meet one case although allowed 21 day file serve point defence point claim stay application made orally 16 august 2010 time service filing defence claim expire 18 october 2010 consequence various extension time gave applicant refuse grant stay 18 october shall order proper pending determination stay application time filing serving defence claim extended reasonable time determined stay application otherwise would unfair party would unfair applicant reason stay application determined time filing service thereby giving applicant time meet order stay refused entirely management availability court time refuse extend time complying order would quite unfair liquidator would give applicant better case would otherwise stay time court would get consider application consequence refusal would theoretically serious time comply order 28 july 2010 extended would passed consequence failure file point defence point claim would entrenched pending outcome leave application appeal leave granted something gained refusal stay contrary mr feller submission matter proceed stage liquidator informed case must meet considered full court even ultimately held court appropriate court decide issue involved claim c pty ltd defence rand situation proceeding objected applicant year objection taken c pty ltd actually commenced application court appropriate liquidator learn case meet whichever court matter heard forthwith additional cost filing serving point claim point defence court relatively insignificant even ultimately pleading repeated supreme court nsw pleading substance identical little additional cost drafting sake filing supreme court mr feller final two written submission involve essentially point say applicant subjected inordinate prejudice stay ordered prejudice forced appeal really application leave heard applicant would suffer hardship could adequately compensated appeal successful two answer submission warranted firstly evidence actual fact would support finding inordinate prejudice hardship cannot adequately compensated onus applicant supply evidence respect wholly failed prove case theoretical prejudice hardship theory could applied actually applied fact proven prepared regard sufficient unspecified theoretical possibility absence easily led evidence prima facie prove existence prejudice hardship however first answer really necessary hardship inordinate prejudice relied arise time filing service point defence point claim passed without filing service time worst consequence refusal stay need file serve pleading meet regard relatively insignificant cost cost largely avoid cost drafting supreme court appeal ultimately succeed applicant also face prospect effect judgment court fail file serve pleading irrelevant nothing evidence stop evidence suggest could file serve pleading within reasonable time considering time already allowed 28 july 2010 evidence mr rand would back australia end summer unless decides lebanese legal proceeding prevent returning evidence date nature suggestion returned could returned australia give instruction return lebanon attend business court case cannot contacted telephone email contacted deficit evidence common sense would must readily available raise suspicion stance taken applicant ploy delay service filing point defence point claim tactical reason liquidator mr cotman sc made point applicant plenty time file point claim point defence although order originally made consent 29 march 2010 required rand file serve point defence 20 april 2010 c pty ltd file point claim 12 april see exhibit xy order 2 6 none yet filed satisfactory excuse failing file provided court course part delay permitted court time time extended time filing 24 may 2010 readiness hearing mr grieve qc informed court would position file document fortnight t p2 30 p5 5 gave rand c pty ltd extension time filing serving relevant pleading 7 june time time filing expired mr elia solicitor applicant must known going compliance hearing issue involving matter fixed 5 day starting 5 july asked solicitor applicant grant leave issue subpoena said nothing failure file pleading ask extend time despite subpoena purpose preparing hearing 5 july matter next came court 24 june 2010 mr feller sc appeared mr milanovic applicant applied disqualify matter court z firm dispute ground given liquidator leeway time setting timetable making direction preparation hearing given applicant uncharacteristically appeal decision disqualify mr feller also informed wished argue matter dealt judgment sought stayed vacated 4 day set hearing adjourned argument 5thjuly suspended timetable filing document order relevant timetable resurrected judgment 28 july included order 28 july stood matter mention direction 16 august 16 august extended time filing service pleading applicant 31 august 30 august vacated 31 august date chamber extended time compliance order made 28 july filing pleading applicant 18 october 2010 set matter considering hearing 18 october thus applicant plenty time prepare pleading period excuse period must known although application might avoid need file serve immediately applicant might fail pleading would need filed served least 18 october stay application argued ample opportunity excuse failing pleading ready event might needed put evidence court excuse pleading would relied required evidence mr cotman written submission opinion unfairly overstating occurred current situation said 15 rand applicant seeking avoid file pleading proceeding basis evidence submission relied upon rand applicant jurisdiction application suggestion different substantive claim run supreme court leave appeal granted full court appeal successful claim simply litigated different forum gist rand applicant objection seems want start afresh supreme court without identified case family court successful appeal ignores fact proceeding relation claim already underway court time deliberate refusal comply court order border contempt leave nature issue determined obscured remarkably includes claim one applicant c pty ltd trying prosecute mr cotman distilled distinction merit granting stay refusing circumstance proposition major consideration relative prejudice applicant file pleading eventually evidence prejudice required file mr grieve qc told court 24 may draft pleading could prepared 31 may 2010 consented filing pleading 7 june inference failure file applicant attempting avoid determination liquidator claim c pty ltd claim indeterminate delay occasioned application leave succeeds decision appeal shareholder unpaid creditor pty ltd prejudiced delay liquidator able wind pty ltd applicant required file serve pleading least liquidator given proper opportunity ass merit applicant claim make application summary dismissal see fit thereby permitting liquidator determine whether distribution creditor take place mr cotman make point seems substantial one without pleading disclosed court cannot come conclusion issue merit leave application merit cannot assessed without knowing merely merit appeal judgment one need know ultimate merit rand defence c pty ltd claim liquidator proceeding run convenience applicant pty ltd creditor shareholder entitled timely resolution dispute applicant liquidator timely resolution claim court reluctant stay proceeding appeal interlocutory order stay prevents substantial proceeding progressing partnership pacific ltd v killen nsw court appeal per moffit p reynolds hutley jja 10 april 1979 unrep cited inblue mountain conservation society inc v delta electricity 2 2009 nswlec 193 per pain j said 32 success appeal cannot assumed therefore desirable proceeding placed footing party known near future appropriate defence filed issue party clarified event appeal unsuccessful matter proceeds protective cost order place future progress matter le delayed party clear issue lie mr feller said response mr cotman submission liquidator waited 4 year appointment taking positive step rand comparison delay occasioned stay would great regard proper consideration light absence suggestion delay taking action liquidator undue evidence suggest nature litigation associated matter reason believe liquidator acted properly event prior undue delay excuse undue delay anything warrant effort court prevent undue delay mr feller oral argument requirement file pleading pending appeal order made 28 july subject client appeal regard argument valid proceeding supreme court pleading substance filed appeal succeeds cost order compensate applicant significant loss associated need file proceeding family court pleading effect except give liquidator notice entitled defence claim case notice would ultimately gain event benefit applicant filing pleading forthwith really nothing possible additional delay resolution dispute keeping liquidator ignorant applicant case longer benefit benefit tactical nature thereby leading inference regard warranted stay application essence delaying tactic especially c pty ltd commenced proceeding family court waited year seek heard elsewhere view leave appeal likely refused granted appeal also weak application leave remarkable lack specificity essential ground allege error court specify allege finding weight evidence evidence support specify finding ground appeal leave granted appeal appear largely fanciful profoundly general relating matter determine outcome proceeding nature background information would permit one understand situation involving issue ground appeal allege judicial bias prejudice rather apprehended bias without specifying ground seem attempt challenge every finding made manifestation weakness view reason canvassed stay required preserve subject matter litigation filing pleading time permit small amount time thus consider argument granting stay conclude basis upholding application filed court 18 october 2010 stay therefore dismiss error finding threshold point based need preserve subject matter litigation finding need preserve subject matter litigation weighing argument party satisfied ground application leave ground appeal weak also satisfied balance convenience favour stay mention particularly substantial ground regarding application delaying tactic tactic avoid allowing liquidator know c pty ltd case applicant suffer particular inconvenience refusal stay whereas liquidator probably suffer loss granting stay creditor shareholder pty ltd disadvantaged inconvenienced grant creditor probably suffer loss applicant also suffer significant loss refusal stay particular concern evidence given true nature c pty ltd claim rand defence evidence support circumstance raising apprehension kept liquidator purpose especially claim c pty ltd claim seems commenced court response liquidator threatened claim rand liquidator entitled know claim c pty ltd defence rand substance irrespective court ultimately decided refusal stay likely achieve enlightenment liquidator reason exercise discretion refuse application dismiss shall order accordingly certify preceding eighteen 18 paragraph true copy reason judgment honourable justice cohen delivered 29 october 2010 associate date 29 october 2010
R v Zerafa [1992] QCA 61 (24 February 1992).txt	r v zerafa 1992 qca 61 24 february 1992 last updated 23 september 2015court appeal 1992 qca 061pincus jamcpherson jathomas jca 344 1991the queenv brian darren zerafa appellant brisbane date 24 2 92judgmentjudgmentpincus ja matter application leave appeal sentence applicant charged two count first 18th day february 1991 loganlea state queensland broke entered dwelling house one bronwyn dawn adam night time intent commit indictable offence therein second date place unlawfully assaulted one andrew bradley adam thereby bodily harm time aforesaid armed dangerous weapon namely rifle matter came district court two occasion reason first occasion suggested behalf accused wished call evidence challenge something said crown end pursue version event set learned district court judge sentencing appears circumstance accurate honour said brian darren zerafa stranger court given several opportunity past way probation order yet taken advantage last time charged break enter offence apparently failed appear warrant issued light history seriousness present offence custodial sentence occasion armed night rifle reason rational person would seem petty chose approach residence neighbour way described vicinity house discharged firearm behaved violent fashion substance charge assaulted one adult occupant threatened child generally terrorised household flimsy piece information may may true content leaving discharged firearm broad summary account fact putforward prosecution perhaps worth reading thatalso 11 40 p mr adam sitting lounge room watching television heard loud noise outside sounded like gun discharged mr adam ran hall yelling front door crashed open accused entered pointing rifle shotgun mr andrew adam mr adam known accused six month apparently sold accused dog gone missing seems accused opinion mr adam stolen dog saying dog dog mr adam said show dog got show dog distinguish one missing walked front door accused pointing gun mr adam screamed dog get dog reached driveway house accused fired second shot said get take one kid indicating child mr mr adam standing verandah mr adam walked back yard accused followed continued threaten blow head fired another shot thanpushed mr adam pushed barrel gun away accused hit left side chest rifle butt caused large bruise assault subject count two accused walked away said know say anything fired another shot hit tree metre away mr adam walked driveway street police arrived soon 25 january offered chance interviewed relation accused declined perhaps necessary give much detail said behalf applicant primary judge except say mention alcohol taken part primary judge took view offence warranted custodial sentence one could strongly agree honour respect count 1 imposed sentence two year imprisonment respect count 2 imposed sentence 18 month imprisonment ordered sentence served concurrently view society live pretence law abiding sort conduct must strongly discouraged opinion sentence imposed quite proper would dismiss application leave appeal mcpherson ja agree would add feature period three half year preceding sentence appeal sought brought applicant suffered two conviction breach probation two breach community service order one breach bail none encourages conclusion anything le sentence imprisonment likely impact outlook perhaps deter committing offence kind agree brother pincus said order application refused thomas j agree would also add leniently treated respect moderately substantial criminal history last six year age 17 transient aberration although influenced doubt consumption liquor went extended period nothing short terror campaign directed people deserve inflicted seems sentence complained agree order proposed pincus ja order court application leave appeal refused
Channel Seven Brisbane Pty Limited v Australian Communications and Media Authority [2014] FCA 668 (24 June 2014).txt	channel seven brisbane pty limited v australian communication medium authority 2014 fca 668 24 june 2014 last updated 9 july 2014federal court australiachannel seven brisbane pty limited v australian communication medium authority 2014 fca 668citation channel seven brisbane pty limited v australian communication medium authority 2014 fca 668parties channel seven brisbane pty limited v australian communication medium authorityfile number nsd 1348 2012judge foster jdate judgment 24 june 2014catchwords administrative law whether holder commercial television broadcasting licence thebroadcasting service act 1992 cth made ground judicial review decision australian communication medium authority relation complaint made segment one current affair programslegislation administrative decision judicial review act 1977 cth 5 1 judiciary act 1903 cth 39bcommercial television industry code practice january 2010cases cited amalgamated television service pty ltd v marsden 1998 nswsc 4 1998 43 nswlr 158catch fire ministry inc v islamic council victoria inc 2006 15 vr 207channel seven adelaide pty limited v australian communication medium authority 2014 fca 667dates hearing 27 28 february 2013place sydneydivision general divisioncategory catchwordsnumber paragraph 78counsel applicant mr j kirk sc mr freesolicitor applicant addisonscounsel respondent mr nj williams sc m mitchelmoresolicitor respondent australian government solicitorin federal court australianew south wale district registrygeneral divisionnsd 1348 2012between channel seven brisbane pty limitedapplicantand australian communication medium authorityrespondentjudge foster jdate order 24 june 2014where made sydneythe court order application dismissed applicant pay respondent cost incidental application taxed agreed note entry order dealt rule 39 32 thefederal court rule 2011 federal court australianew south wale district registrygeneral divisionnsd 1348 2012between channel seven brisbane pty limitedapplicantand australian communication medium authorityrespondentjudge foster jdate 24 june 2014place sydneyreasons judgmentin 2011 channel seven brisbane pty limited seven operated commercial television station known asbtq brisbane year prior late 2011 seven network broadcast one hour current affair program 6 30 pm sunday evening known assunday tonight 4 september 2011 seven broadcast segment segment ran approximately 20 minute part thesunday tonightprogram went air day segment reported suruwaha tribe live amazon jungle brazil segment featured seven reporter author called adventurer identified segment later came referred australian communication medium authority acma pr well officer brazil department indian affair travelling amazon jungle meeting suruwaha people segment suruwaha people filmed hunting conducting ritual living daily life segment included interview two young suruwaha men w human right lawyer referred acma material mb seven also filmed suruwaha mother child sao paulo brazil part segment broadcast went air acma received complaint segment complainant alleged seven made inaccurate statement segment broadcast program likely circumstance provoked perpetuated intense dislike serious contempt severe ridicule suruwaha people ground national ethnic origin race religion breach cl 1 9 6 thecommercial television industry code practice 2010 code complainant alleged statement made segment seven reporter pr effect brazilian law apply suruwaha people lived inaccurate thus breach cl 4 3 1 code b statement made segment effect suruwaha people currently practise infanticide respect child born birth defect single mother inaccurate thus breach cl 4 3 1 code c remark taken remark segment likely provoke sentiment described cl 1 9 6 code account matter proscribed clause complaint investigated acma prior finalising investigation report acma provided preliminary investigation report seven sought comment seven relation preliminary investigation report investigation report 2741 dated 6 august 2012 report delegate acma determined seven relation segment breached cl 4 3 1 code relation statement outside protection brazilian law ii breached cl 4 3 1 code relation statement lost tribe encourage murder disabled child suruwaha believe child born birth defect born single mother evil spirit killed gruesome way possible iii breached cl 1 9 6 code including within segment remark referred subpar ii concerning infanticide seven dissatisfied three determination extracted 9 7 september 2012 seven filed application court judicial review acma determination report referred 9 broad term seven contended acma committed error law making determination failed take account mandatory relevant consideration form policy relation presenting factual material accurately undertaken improper exercise power seven also contended decision perverse irrational illogical reasonably open proceeding heard immediately proceeding nsd 1347 2012 channel seven adelaide pty limited acma adelaide proceeding judgment matter delivered time judgment matter issue principle common matter extent may necessary desirable read wish understand reason judgment also regard reason judgment published day adelaide proceeding channel seven adelaide pty limited v australian communication medium authority 2014 fca 667 adelaide judgment reporton pp 2 3 report delegate set text set pp 2 3 report adelaide proceeding heading assessment heading ordinary reasonable viewer test delegate authored report case delegate wrote acma report challenged adelaide proceeding p 3 report delegate commenced consideration ofissue 1 presentation factual material sheset cl 4 3 1 code cl 1 5 2 code also referred fact case report review adelaide proceeding attachment b contains consideration acma generally applies determining whether statement complies licensee obligation present factual material accurately attachment b report identical term attachment b adelaide report set document simply observe text document found 20 adelaide judgment pp 4 6 report delegate addressed three particular statement longer contention p 6 delegate addressed statement 4 outside protection brazilian law heading delegate said pp 6 7 statement 4 outside protection brazilian law statement made following context bold female tribe member looking tall white man subtitle reporter mood change tribe member touch touch reporter threat murder pr want kill girl want kill department indian affair officer scared pr hear girl want kill scared reporter outside protection brazilian law pr suruwaha land law apply killed spot brazilian government would punished indian acma considers statement factual content presented conclusive unequivocal manner question acma would conveyed information ordinary reasonable viewer would knowledge detailed otherwise brazilian legal system application people concerned acma considers viewer would understood crime committed specifically seven reporter killed brazilian law would apply accordingly brazilian government could investigated pursued charge murder perpetrator therefore would punished key point brazilian law apply suruwaha tribe suruwaha law applies suruwaha land delegate moved consider submission made behalf complainant seven point report delegate noted seven submission funai brazilian government agency dealing indigenous tribe brazil policy interfere traditional practice infanticide even funai aware practice contravene brazilian law p 8 delegate said submission put forward seven indicate anecdotal account suggest practice authority disinclined pursue criminal matter suruwaha people live necessarily understand traditional brazilian law funai policy pursue relevant matter acma consider anecdotal evidence adequately support impression conveyed broadcast brazilian law apply suruwaha people general practice policy pursue criminal matter suruwaha people mean relevant law apply certain circumstance suruwaha member would prosecuted fullest extent brazilian law commit crime fact article 56 indian statute clearly indicates indian may convicted penal infraction delegate noted response preliminary investigation report seven submitted art 26 brazilian criminal code exempted punishment entirely unable understand unlawful criminal character action seven submitted suruwaha people would entitled pray aid art 26 order absolve punishment example killed reporter pr course person visitation p 9 report delegate said acma consider existence exception article 26 article 56 render relevant statement accurate exception discretion apply statute actually support fact brazilian law apply suruwaha people fact may instance alleged crime investigated accused punished discretion granted brazilian law exercised certain way detract fact brazilian law contrary seven reporter assertion apply suruwaha people suruwaha tribe member kill foreign journalist brazilian government would jurisdiction investigate murder pursue charge convict punish member tribe murder basis acma reiterates finding relevant statement accurate acma accept seven submission reasonable rely advice provided funai official expert area term clause 1 5 2 code note advice provided seven consists anecdotal evidence relating practice policy pursuing alleged crime committed suruwaha address issue whether brazilian law applies suruwaha people taking account gravity relevant statement outside protection brazilian law suruwaha land law apply acma considers seven obligation ascertain correct legal position regarding application suruwaha law brazilian law whether fact suruwaha tribe member could convicted punished murder foreign journalist brazilian law delegate moved consider statement made respect infanticide pp 9 10 delegate said statement 5 reference infanticide relevant statement bold relation infanticide made following context reporter got know clearer became disturbing practice lost tribe encourage murder disabled child pr suruwaha believe child born birth defect born single mother evil spirit killed gruesome way possible take poor little innocent babe jungle eaten alive wild beast jaguar bury alive one worst human right violation world reporter brazil biggest city sao paulo find one little girl survived born cerebral palsy baby mother forced leave jungle eaten jaguar later went back mb human right lawyer came back loved daughter much reporter made way jungle eventually safety brazilian health official took reporter believe infanticide still occurs suruwaha mb wish think still camera go back interview resume young suruwaha male featured segment killed baby long lime even though kill kill let grow acma considers ordinary reasonable viewer would understood key statement factual material given presented unequivocal unquestioning manner would statement conveyed ordinary reasonable viewer complainant submitted broadcast indicated infanticide invariably adopted child born defect single mother seven contended report simply describes practice infanticide state practice occurs within suruwaha instance acma make following observation language used reporter pr assertive contain reference practice occasional sporadic occurring instance andthe use word believe child killed encourage murder disabled child framed present tense indicate currently held belief action tribe exception reference practice infanticide found commentwe killed baby long time even though kill kill let grow nothing broadcast indicate topic infanticide associated belief without dispute debate qualification comment brief ambiguous confusing inclusion negate meaningfully qualify assertive unequivocal statement made reporter pr accordingly acma find ordinary reasonable viewer would taken relevant statement uncontroverted undisputed established fact suruwaha currently believe child born birth defect single mother evil killed response preliminary investigation report seven submitted seven remains view report convey information theprevalenceof infanticide among suruwaha material report relating frequency statement killed baby long time even though kill kill let grow statement make clear practice invariably adopted seven submits viewer would understand statement infanticide occur rule definite practice noted acma accept comment would served purpose claimed seven making remark extracted 23 delegate went consider whether information conveyed accurate embarked upon detailed consideration certain research material particular noted seven assertion practice infanticide clearly established source seven cited support assertion however delegate accept seven submission p 13 report delegate said acma agree interpretation seven obligation code would effect suggested seven acma ass compliance code provision basis particular fact information circumstance substantial body information indicating matter presented undisputed fact fact disputed circumstance whilst seven obligation present opposing view impartial obligation make clear issue disputed rather uncontroverted fact acma accept clause 1 5 2 code applies case given seven would aware opposing view debate regarding prevalence infanticide acma consider seven reliance material obtained regarding existence infanticide amount reasonable reliance information supplied another person conclusion acma purport make finding existence infanticide credibility source either way outlined issue acma ruled proposition significant dispute debate presented broadcast fact delegate moved consider cl 1 9 6 code extracting term cl 1 9 6 delegate also set cl 1 10 code provides series exception cl 1 9 relevant time cl 1 10 following term 1 10 except clause 1 9 3 none matter clause 1 9 contrary section 1 10 1 said done reasonably good faith broadcasting artistic work including comedy satire or1 10 2 said done reasonably good faith course broadcast statement discussion debate made held academic artistic scientific purpose identifiable public interest purpose or1 10 3 said done broadcasting fair report fair comment event matter identifiable public interest p 14 report delegate said general approach adopted acma assessing broadcast material clause 1 9 6 code set atattachment e attachment e report following term interpretation clause 1 9 6 codethe acma adopts general approach set assessing broadcast material clause 1 9 6 code likely circumstance phrase likely circumstance imposes objective test creek v cairn post pty ltd 2001 fca 1007 2001 112 fcr 352at 356 357 16 implies real remote possibility something probable see discussion inre vulcan australia pty ltd end comptroller general custom 1994 34 ald 773 778 provoke intense dislike serious contempt severe ridicule statute code us word define usually appropriate apply whichever ordinary english language meaning appropriate context word used statute code themacquarie dictionary fifth edition includes following definition provokeverb2 stir arouse call forth 3 incite stimulate person etc action perpetuateverb1 make perpetualintenseadjective1 existing occurring high extreme degree2 acute strong vehement sensation feeling emotionsdislikenoun2 feeling disliking distaste seriousadjective5 weighty important contemptnoun1 act scorning despising 2 feeling one regard anything considered mean vile worthlesssevereadjective1 harsh harshly extremeridiculenoun1 word action intended excite contemptuous laughter person thing derision ground phrase ground interpreted requiring identifiable causal link prohibited ground action complained informing interpretation code provision acma note great deal judicial interpretation relation word ground context discrimination law phrase expressed variously legislation reason basis victorian racial religious tolerance act us word code e reaction must ground personal characteristic neave j victorian court appeal casecatch fire ministry or v islamic council victoria inc 2006 vsca 284 case cited approval decision inkazak v john fairfax publication ltdwhere new south wale administrative decision tribunal said must causal connection race person group person concerned feeling hatred serious contempt severe ridicule incited public act ground public act performed relevant ground reader incited hatred etc relevant delegate found seven breached cl 1 9 6 code able avail exception cl 1 10 code pp 14 15 delegate gave reason conclusion said determining whether seven breached clause 1 9 6 consideration must given following identification relevant individual group ground individual group targeted andwhether broadcast provoked intense dislike serious contempt severe ridicule relevant individual group particular ground relevant person group person relevant groundsthe acma satisfied alleged action directed towards suruwaha tribe group ground ethnic origin race purpose clause 1 9 6 code intense dislike serious contempt severe ridicule clause 1 9 6 set high threshold likely effect prohibited material definition intense dislike serious contempt severe ridicule set indicate code contemplates strong reaction prohibited behaviour sufficient behaviour induce mild even strong response case based complaint material concern acma considers relevant matter consider whether intense dislike serious contempt likely invoked material broadcast infanticide acma satisfied reference infanticide would conveyed emotion intense dislike serious contempt mind ordinary reasonable viewer ground alleged cultural practice suruwaha tribe practice infanticide would repugnant ordinary reasonable viewer particularly light description provided report manner baby killed take poor little innocent babe jungle eaten alive wild beast jaguar bury alive comment made reporter lost tribe encourage murder disabled child acma considers high threshold test intense dislike serious contempt met given highly descriptive language used report general abhorrence society infanticide complainant also referred theadvisory note relatingto theportrayal cultural diversityin code particular generally avoid outdated representation people non english speaking background behave report race related issue well researched based solely claim particular group advisory note enforceable rather intended help encourage reporter program producer produce program treat people equal respect regardless national ethnic linguistic background acma satisfied broadcast met first threshold term broadcast eliciting required level intensity specified code material whichconveysnegative reaction towards person group provocation must something expression opinion something positively stimulatory reaction others regard noted pr condemned practice infanticide stating one worst human right violation world reporter also stated got know clearer became disturbing practice acma satisfied given highly evocative language used report describe killing baby judgmental tone used pr reporter condemning alleged practice likely circumstance contributory factor would perpetuated provoked intense dislike serious contempt suruwaha acma view negative reaction would ground cultural ethnic practice tribe given report conveyed impression practice kill child born birth defect born single mother based tribe belief reason acma considers circumstance broadcast material complained breached clause 1 9 6 code pp 15 16 delegate extracted submission made seven response preliminary investigation report effect would incorrect application cl 1 9 6 ass impact relevant statement isolation limited context p 16 report delegate said acma persuaded seven argument regarding interpretation clause 1 9 6 code clause 1 1 1 code provides one objective code regulate thecontentof commercial television accordance current community standard basis acma considers reference program clause 1 9 6 cover content included program even segment minimal duration program significant impact depending content acma accept tone used pr conveyed notion compassion rather provocation acma satisfied use language poor little innocent babe worst human right violation world provoked required feeling intense dislike serious contempt suruwaha term clause 1 9 6 code delegate considered whether seven could rely upon exemption cl 1 10 3 p 17 report delegate said acma considers report contain fair comment matter public interest given controversial emotive issue taking account seven knowledge opposing view exist issue acma find unequivocal statement existence practice reporter pr fair comment regard accordingly acma consider broadcast fall within exception 1 10 3 code response preliminary investigation report seven relevantly submitted seven submits current affair program obliged present even opposing viewpoint matter reported accordingly seven believe pr comment considered unfair due fact comment presented time rejected statement infanticide occurs acma accept seven submission issue acma found relation accuracy seven failed include reference fact significant level dispute controversy topic presented factually uncontroversial circumstance acma satisfied relevant comment regarded fair comment regulatory frameworki set adelaide judgment 33 56 relevant provision regulatory framework seven complaint acma decision must considered adopt incorporate paragraph reason judgment considerationin amended originating application judicial review seven relies upons 5 1 e theadministrative decision judicial review act 1977 cth adjr act 5 1 f act ands 39bof thejudiciary act 1903 cth section 5 1 e 5 1 f adjr act provide 5 application review decision 1 person aggrieved decision act applies made commencement act may apply federal court federal circuit court order review respect decision one following ground e making decision improper exercise power conferred enactment pursuance purported made f decision involved error law whether error appears record decision ground 1 4 breach clause 4 3 1 code relation statement outside protection brazilian law way introduction detailed submission seven submitted clear distinction proposition brazilian law apply action suruwaha suruwaha land consequence brazilian governmentcouldnot taken action even wanted suruwaha man woman killed visitor b proposition matter policy practice brazilian law unlikely applied action suruwaha suruwaha land brazilian governmentwouldnot taken action suruwaha one killed visitor even power take action critical statement made segment extracted acma pp 6 7 report set 18 proposition summarised 37 b claimed seven accurately reflect current government policy brazil least respect action might undertaken suruwaha suruwaha land acma found breach cl 4 3 1 characterised relevant statement assertion fact position brazilian law rather assertion fact concerning current policy practice part brazilian government agency seven submitted acma conclusion point affected number error true characterisation relevant statement nothing statement opinion would likely happen event murder committed ground 1 reliance inference rather material broadcastthe first error identified seven acma failed consider material fact broadcast proper context rather impermissibly drew inference said seven submitted relevant statement addressed protection law practical matter rather jurisprudential matter argued last remark made pr extract set 18 demonstrates statement ever policy practice brazilian government rather strict legal position according brazilian law seven submitted acma ought approached matter using test posed ordinary reasonable viewer test adopting test reference toamalgamated television service pty ltd v marsden 1998 nswsc 4 1998 43 nswlr 158 marsden 164 167 likely introduce manner technicality law defamation would serve cloud true task particular concept teasing imputation express statement popular law defamation place proper characterisation statement made current affair program purpose applying code seven went far submit use test acma posed based uponmarsdenwas error law amounted acma misdirecting critical question seven went submit acma taken unduly restrictive approach based upon wrong inappropriate analogue according seven failed identify ass material broadcast failed ass material proper context seven also submitted acma failed apply guideline set attachment b failed pay due regard fact whatever else could said relevant statement statement future thus statement opinion seven submitted circumstance acma consider guideline relation statement opinion statement respect future matter simply failed agree submission made behalf seven reality overwork problem acma really ascertain ordinary reasonable viewer would understood program conveyed reference entire segment acma assessed actually broadcast looked way acma came view meaning conveyed relevant statement context said murder committed suruwaha person suruwaha land brazilian law would applied perpetrator characterisation clearly open acma cannot gainsaid manner contended behalf seven whether brazilian law applied postulated murder question fact dialogue constituted statement relevant remark extracted acma pp 6 7 report demonstrate relevant statement made absolute unqualified term already said clearly open acma characterise statement one fact unqualified statement fact reject ground 1 ground 2 2a distinction fact opinionto extent submission made support ground repeated submission made respect ground 1 seven submitted expression cl 4 3 1 code factual material cover statement opinion went submit attachment b acknowledged distinction statement fact statement opinion argued statement made reporter pr applicability brazilian law statement opinion error law characterise statement fact seven emphasised acma undertaken analysis difference fact opinion characterising statement question according seven created policy set attachment b acma bound least regard policy considering present complaint acma considered relevant statement statement opinion rather statement fact made voice formulated past tense even acma bound least consider policy attachment b basis concluding present case ground 2 2a rejected ground 3 4 evidence ground perversitythese ground relied upon seven constitute yet another way endeavouring attack conclusion reached acma relevant statement effect brazilian law apply suruwaha suruwaha land properly characterised statement fact written submission support ground seven said probative evidence support proposition segment included factual material effect brazilian law simply apply action suruwaha suruwaha land characterise broadcast material fashion beg question answer proposition depends upon interpretation one place broadcast particular one characterises relevant statement present case acma characterised relevant statement statement fact characterisation reasonably open acma end matter reject ground 3 4 ground 5 error law identifying factual material broadcast infanticideseven submitted acma finding statement broadcast concerning infanticide constituted factual material within meaning cl 4 3 1 legally flawed seven submitted acma failed consider relevant statement context particular submitted acma failed consider observation respect infanticide seven also contended good reason acma ignore comment seven also complained acma treatment remark made mb human right lawyer delegate consider comment specifically referred described brief ambiguous confusing fair description comment judgment open acma reach conclusion term characterisation broadcast material concerning infanticide reject ground 5 ground 6 7 characterisation factual material perverse supported evidencesenior counsel appeared seven accepted fairly understood segment convey message infanticide still carried suruwaha least time time nonetheless took issue proposition segment also conveyed notion question whether infanticide currently practised suruwaha matter dispute fact matter considerable dispute according significant amount relevant literature already said clearly open acma characterise broadcast material way seven failed make ground 6 7 third breach group vilificationground 8 acma asked wrong question applying clause 1 9 6 codein support ground seven correctly submitted purpose cl 1 9 6 code must connection emotion provoked perpetuated described clause attribute age colour etc described latter part clause seven submitted relevant enquiry must directed reason emotion described first part cl 1 9 6 provoked perpetuated endeavouring support case respect cl 1 9 6 seven relied upon various case dealing law discrimination seven went submit hostility particular set belief cannot equated hostility group hold belief hostility group ground particular belief practice equated hostility group ethnic ground seven submitted acma undertook wrong kind assessment looking alleged breach cl 1 9 6 senior counsel acma referred acma reliance upon attachment e report interpreting cl 1 9 6 submitted attachment e includes correct statement manner phrase ground construed namely requiring identifiable causal link prohibited ground action complained addition reliance upon reason neave ja incatch fire ministry inc v islamic council victoria inc 2006 15 vr 207 acma noted report must causal connection race person group person concerned feeling hatred serious contempt severe ridicule incited public act submitted behalf acma commencement reason set correct test indicating p 14 identify relevant individual group ground upon individual group targeted b consider whether broadcast provoked intense dislike serious contempt ridicule relevant individual group ground submitted behalf acma twice identified applicable test precision acma considered whether alleged action directed towards suruwaha tribe group ground ethnic origin race ultimately satisfied directed finding reasonably open context segment entire focus tribe submitted behalf acma language deployed broadcast highly evocative designed provoke strong emotion conclusion arrived considering said tone context said ultimately acma found practice based tribe belief infanticide part tribe ethnicity negative reaction would ground ethnic origin race conclusion clearly open vitiated reviewable error reject ground 8 ground 8ain support ground seven submitted acma asked wrong question focussing portion segment rather entire segment judgment acma focussed upon entire segment recognised clearly case even small portion segment might necessary consequence purpose cl 1 9 6 couched highly inflammatory language acma ask wrong question reject ground 8a ground 9 10 alleged fair comment public interestthese ground rely upon cl 1 10 3 code seven submitted question acma asked whether critical tone deployed reporter pr segment fair comment matter identifiable public interest allowed distracted dispute extent practice infanticide submitted behalf acma submission made acma seven argued comment made pr considered unfair fact comment presented time rejected statement infanticide occurred acma went submit summary response submission found issue infanticide controversial emotive seven knew opposing view relation b notwithstanding knowledge seven presented topic factually uncontroversial without including reference fact significant level dispute controversy topic c context unequivocal statement segment existence practice made reporter pr fair comment question whether action would otherwise constitute breach cl 1 9 6 said done broadcasting fair report fair comment event matter identifiable public interest question fact acma considered relevant matter including submission made seven concluded seven could rely cl 1 10 3 acma commit reviewable error reject ground 9 10 conclusionsseven failed make ground relied upon support claim relief accordingly application must dismissed cost order accordingly certify preceding seventy eight 78 numbered paragraph true copy reason judgment herein honourable justice foster associate dated 24 june 2014
Togher v TAC [2001] VCAT 722 (31 May 2001).txt	togher v tac 2001 vcat 722 31 may 2001 victorian civil administrative tribunalgeneral list 2000 73277catchwordsgeneral list transport accident act 1986 transport accident injury directly caused driving railway trainapplicant michael togherrespondent transport accident commissionwhere held melbournebefore jacqueline preuss senior memberdates hearing 19 december 2000date order 22 march 2001orders1 decision respondent set aside 2 claim applicant remitted respondent dealt accordance law 3 respondent pay applicant cost default agreement taxed county court scale ___________________jacqueline preusssenior memberappearancesfor applicant mr keogh counsel instructed ryan carlisle thomasfor respondent mr r middleton counsel instructed tac lawreasons orderthe application1 application review filed tribunal 13 september 2000 applicant sought review decision dated 25 july 2000 incident applicant suffered injury directly caused driving motor vehicle train tram 2 following fact appear issue incident occurred 5 november 1999 approximately 9 00 pm applicant fell exiting stationary train merinda park railway station time incident applicant travelling home train merinda park station usual station point disembarkation seated last carriage six carriage train dark train pulled station applicant walked last door carriage train stopped door opened automatically applicant stepped 3 fell ground due fact door exited alongside station platform occurred train pulled fully station came halt leaving part last carriage outside platform falling ground landed foot fell hand knee train departed applicant got foot walked gate ramp onto station accessed emergency communication reported incident station unmanned 4 result incident applicant claim suffer number injury including jarring injury knee particularly left knee musculo ligamentous strain injury lower lumbar region legislative provisions5 pursuant 35 thetransport accident act 1986 act person injured result transport accident entitled compensation accordance act circumstance set section section 3 3 c act provides far relevant reference injury result transport accident reference injury directly caused driving railway train legal submissions6 mr middleton counsel respondent submitted driving train must directly cause incident applicant injured injury driving train cause applicant injury regard relied ontac v iacuone supreme court victoria 6330 1998 unreported decision mandie j argued open find present case failure applicant look stepped train assumption platform stepped train caused injury driving train 7 mr middleton relied dissenting judgment brooking j intac v treloar or 1992 vicrp 31 1992 1 vr 447in relation appeal pedersen honour expressed view p 467 word directly caused directly arising driving embrace incident passenger alighted vehicle injured consequence dangerous condition place alighted 8 mr middleton submitted factor made brooking j dissenting judgment persuasive refinement definition transport accident court dealing intreloar scase thetransport accident general amendment act 1994 mr middleton argued would appropriate follow view expressed brooking j regard mandie j observation iniacuone scase p 9 brooking j reasoning considerable logic 9 mr keogh counsel applicant submitted follow majority judgment intreloar scase directly point relation appeal ofpedersen one appeal heard withtreloar mr keogh submitted fact current case established far readily inpedersen scase applicant injury arose directly driving train 10 pedersen case applicant applied compensation basis husband died result transport accident applicant husband travelled social event bus end trip bus stopped mr pedersen alighted bus fell suffering serious injury deputy president galvin heard case first instance found bus driver selection parking position purpose disembarking passenger unsatisfactory required alight directly onto rough cobbled gutter circumstance inadequate illumination mr galvin found non coincidental nexus driving bus injury sustained mr pedersen injury would sustained fact bus brought halt inappropriate place course driven purpose disembarking passenger mr galvin found injury sustained directly arose driving bus appeal mcgarvie gobbo jj held p 451 finding would open basis fact incident directly caused driving bus discussion findings11 mandie j enunciated following proposition iniacuone scase extracted part judgment tadgell j intac v jewell 1994 1 vr 300 p 10 whether injury incident one directly caused driving motor car question fact word caused even changed context connote direct proximate relationship cause effect word directly caused mean solely caused futile strive enunciate general proposition application provide ready solution case raising question whether injury incident directly caused driving motor car injury might held directly caused driving motor vehicle even though produced collision physical contact person injured vehicle accordingly injury need occur course driving motor vehicle order may said directly caused driving claimant injured incident occurring driving motor vehicle must demonstrate temporal connection injury incident one hand driving sufficient prove driving directly caused injury incident 12 p 11 mandie j observed opinion tribunal displayed error considering whether injury wascausedby driving motor vehicle referring unbroken chain causation application commonsense test considering whether injury wasdirectlyso caused find tribunal referred erroneous criterion reference temporal connection supported authority reference predominant causal contribution operative cause mind legitimate approach question whether causal relationship driving injury sufficiently proximate immediate fit description directly caused 13 applying principle present case find incident applicant injured caused driving train caused feature driving namely train driver failure pull train fully alongside station platform 14 also find applicant injury resulting incident would occurred train driver failure pull train fully station 15 whilst accept mr middleton submission applicant may injured looked disembarking driving train predominant causal contributor operative cause applicant injury applying test satisfied driving train applicant would injured 16 accept submission mr keogh majority judgment mcgarvie gobbo jj inpedersenis directly point p 450 honour observed opinion incident caused driving motor car caused feature driving speed inattention place car driven deputy president finding injury resulted incident would occurred bus driven stopped inappropriate place disembarkation passenger could provide basis finding driving bus stopping caused incident winfield jolowiczon tort 13thed pp 131 2 trindade cane law tort australia pp 360 4 andfitzgerald v penn 1954 hca 74 1954 91 clr 268 p 277 whether stopping bus particular place caused incident depends whether finder fact matter commonsense concludes stopping fairly properly considered cause incident cffitzgerald v penn pp 274 8 17 mr middleton submission change definition transport accident sincetreloar scase add greater weight judgment brooking j based fact transport accident amendment 1994 came effect treloar decided effect restricting type incident give entitlement compensation injury result amendment caused word directly arising omitted definition transport accident 3 1 arising arose omitted 3 3 c apparent reading majority judgment inpedersenthat word arising critical honour finding basis persuaded amendment effect claimed mr middleton 18 whilst mandie j may expressed approval reasoning applied brooking j mandie j dealing quite different situation iniacuone remark obiter binding present case 19 view finding decision respondent set aside claim applicant remitted respondent dealt accordance law 20 mr middleton conceded would appropriate applicant awarded cost event successful accordingly order respondent pay applicant cost default agreement taxed county court scale
Byrne L v Cardinia SC & Anr [2001] VCAT 829 (31 May 2001).txt	byrne l v cardinia sc anr 2001 vcat 829 31 may 2001 victorian civil administrative tribunalplanning list application review 2000 76083permit application t000292catchwordscinema retail shop us exempted third party right reduction car parking limit jurisdiction clause 52 cardinia planning scheme applicant review l byrnerespondent riddle radcliff pty ltdresponsible authority shire cardiniawhere heard melbournebefore r marsden senior memberdate hearing 11 may 2001date order 23 may 2001subject land 67 main street pakenhamorderthe application review disallowed decision responsible authority affirmed tribunal order 1 permit issue accordance condition contained notice decision t000292 dated 5 september 2000 2 word use preamble permit shall deleted _______________________i r marsdensenior memberappearancesms r muoy town planner represented responsible authority mr l byrne applicant review appeared person mr r riddle director riddle radcliff pty ltd appeared respondent permit applicant nature applicationapplication unders 82of theplanning environment act1987
Re Gerhardt Walter Kolb and Nancy Kolb Ex Parte: Richard Anthony Fountain England and the Commissioner of Taxation of the Commonwealth of Australia [1994] FCA 1145 (7 June 1994).txt	gerhardt walter kolb nancy kolb ex parte richard anthony fountain england commissioner taxation commonwealth australia 1994 fca 1145 7 june 1994 federal court australiare gerhardt walter kolb nancy kolbex parte richard anthony fountain england commissioner taxation ofthe commonwealth australiano sg171 1988fed 359 94number page 7bankruptcy costscourtin federal court australiasouth australia district registrygeneral divisionbankruptcy district state south australiaburchett jcatchwordsbankruptcy set 86 claim commissioner taxation set liability refund bankrupt deduction prescribed payment system amount owed partnership bankrupt member deduction made scheme deduction group tax commissioner claiming entitlement set 221yhg 2 b ii theincome tax assessment act 1936 alternatively unders 86of thebankruptcy act 1966 application ofs 86to statutory debt effect ofs 86 2 meaning giving credit receiving credit whether division 2 ofpart viof theincome tax assessment actexcludes operation ofs 86of thebankruptcy act cost circumstance though application dismissed order made cost bankruptcy act 1966 86bankruptcy rule r 106income tax assessment act 1936 s 221yhf 1 b 221yhg 2 b ii gye v mcintyre 1991 hca 60 1991 171 clr 609day dent construction proprietary limited liquidation v northaustralian property proprietary limited provisional liquidator appointed 1982 hca 20 1982 150 clr 85r v miller 1977 3 er 986taylor v commissioner taxation 1987 16 fcr 212in h curtis builder ltd 1978 1 ch 162re cushla ltd 1979 3 er 415hearingsydney 13 14 october 19937 6 1994counsel applicant mr r j whitingtonsolicitors applicant messrs barratt lindquistcounsel respondent mr f p carnovalesolicitor respondent australian government solicitororderthe court order 1 application dismissed 2 order cost note settlement entry order dealt rule 124 bankruptcy rule decisionburchett j applicant trustee bankruptcy estate gerhardt walter kolb nancy kolb prior sequestration order made 15 february 1988 partnership business builder become indebted commissioner taxation respect deduction made partnership prescribed payment various subcontractor also respect deduction made partnership wage paid various person employed time bankrupt gerhardt walter kolb entitled claim credit commissioner basis deduction made forwarded commissioner prescribed payment personally entitled year ended 30 june 1987 exceeded income tax payable year sum 17 148 59 month making sequestration order presentation 18 december 1987 petition mr kolb 22 january 1988 commissioner issued document form assessment mr kolb showing credit entitled applied sum 10 146 partnership account respect deduction prescribed payment system 7 007 59 partnership account respect deduction group tax action commissioner subject amendment unnecessary present purpose discus set scene dispute reason concerned 2 following making sequestration order mr england trustee bankrupt mr kolb wrote 10 august 1988 asking sum 17 148 59 forwarded office learning commissioner done mr england wrote request detail authority money applied particular obligation partnership question lapse time advised letter may dated 20 september 1988 authority apply credit way contained section 221h 2 theincome tax assessment act 22 february 1989 mr england wrote denying right commissioner rely section response new claim commissioner authority transfer credit contained section221yhg 2 theincome tax assessment actand section221h 2 previously advised 7 june 1990 mr england wrote commissioner detailed refutation claim made 221yhg 2 asked payment credit commissioner answer sent 23 august 1990 almost entirely ignored question raised mr england letter consisted substance somewhat surprising appeal circumstance good faith ordinary course business assertion made sic unaware extent mr mr kolb financial difficulty time credit assessment issued mr england replied 10 september 1990 pointing notice meeting creditor sent creditor 23 december 1987 statement never disputed commissioner proceeding also admitted commissioner became aware 18 december 1987 presentation petition mr kolb commissioner contented reply given 11 march 1991 asserting obtained legal opinion australian government solicitor matter considered application credit 17 148 59 prescribed payment group tax account correct whether legal opinion depended three ground successively raised correspondence yet another ground disclosed formal demand proceeding instituted 3 proceeding notice intention appear hearing application filed australian government solicitor required rule 106 bankruptcy rule form 46 schedule 1 rule setting ground intended oppose mr england application payment commissioner sum 17 148 59 notice relied 221yhg 2 b ii theincome tax assessment act 1936as commissioner authority apply credit way applied 4 month hearing commissioner first time raised question whether entitled resist trustee claim basis ofs 86of thebankruptcy act 1966 even done amendment notice filed underrule 106 course stating commissioner contention document sent trustee solicitor called statement fact contention amendment made sought made hearing ground raised opposition application hearing granted leave commissioner amend raise point unders 86of thebankruptcy act indicating course taken might relevant cost 5 section 86provides 1 subject section mutualcredits mutual debt mutual dealing aperson become bankrupt person claiming toprove debt bankruptcy account shall taken due oneparty respect mutualdealings b sum due one party shall set offagainst sum due party c balance account may claimed thebankruptcy payable trustee thebankruptcy case may 2 person entitled section claimthe benefit set time giving credit tothe person become bankrupt time ofreceiving credit person notice anavailable act bankruptcy committed person 6 section subject detailed consideration gye v mcintyre 1991 hca 60 1991 171 clr 609 joint judgment high court 623 explains three aspect requirement section mutuality credit debt claim question person benefit burden lie interest far section refers dealing credit debt claim must ultimately sound money said must commensurable joint judgment also make clear 625 626 first requirement mutuality mean party may involved critical matter purpose ofs 86are therehad dealing creditor bankruptwere involved dealing gave rise tomutual claim relevant sense 7 involved mutual credit mutual dealing stated joint judgment reference decision given well hundred year ago naoroji v chartered bank india 1868 lr 3 cp 444 joint judgment say case 624 byles j remarked mutual credit reciprocal demandswhich must naturally terminate debt emphasis added montague smith j said bring case within set offprovision necessary credit shouldbe dependent one upon shouldhave agreement beforehand added theoperation provision require accountshall taken credit dealing inthe natural course business would end debt thebalance shall debt due one emphasis added joint judgment also 625 make clear dealing withins 86are matter commercial business flavour wide scope given part section indeed section honour go say generously construed 8 approach reliance placed old decision naoroji echo judgment gibbs cj day dent construction proprietary limited liquidation v north australian property proprietary limited provisional liquidator appointed 1982 hca 20 1982 150 clr 85at 95 chief justice aickin j agreed said however consider meant statement incertain earlier authority may aset respect credit dealing inthe natural course business would end debt usethe word montague smith j naoroji v chartered bankof india modern authority favour view enough dealing would naturally anddoes terminate debt well understood thelaw relates set mutual dealing inbankruptcy long history exists prevent theinjustice man mutual dealing abankrupt pay full owes respectof dealing receiving dividend thebankrupt owed respect 9 respect application ofs 86to fact present case counsel trustee conceded relevant partnership liability relied commissioner taxation joint several liability set purpose ofs 62of separate liability joint several liability liability question present case mutual within meaning section however disputed application ofs 86to statutory debt even generally application could applied taxation liability question commissioner entitled rely case claimed acted 221yhg 2 theincome tax assessment act counsel argued also 86 2 circumstance case operated exclude set 86 1 10 unable see merit proposition commissioner reliance 221yhg theincome tax assessment actdebars relying ons 86of thebankruptcy act nothing nature election involved commissioner reliance taxation provision misplaced provision may put one side commissioner may seen creditor bankrupt mr kolb time owes money estate bankrupt question simply whethers 86applies situation hand 11 far as 86 2 concerned counsel trustee contended commissioner gave credit partnership mr kolb member deduction became payable immediately paid whether prescribed payment scheme respect wage paid employee said continued occur commissioner notice available act bankruptcy committed mr kolb notice latest 18 december 1987 petition presented commissioner took step enter agreement effect postponing obligation partner remit deduction made prescribed payment wage r v miller 1977 3 er 986 roskill lj delivering judgment behalf scarman lj griffith j distinguished situation party agree upon purchase cash consideration stipulate purchaser shall credit price reasonable time true case credit given situation payment due debtor simply fails pay period lordship said view happening default nogiving credit person instalment isdue contrary finance company happeningof default acquires instant cause action theoverdue instalment seems u antithesis ofgiving credit pointed r v peter 1886 16 qbd 636and case involves one wayor another agreement postpone payment theabsence agreement would immediately due 12 trustee advance analysis circumstance according potential aspect ofs 86 2 receiving credit commissioner mr kolb could said involved present matter certainly suggestion mr kolb agreed postponement commissioner obligation much single day 221yhf 1 b upon assessment made tax payable alternatively commissioner satisfied tax payable person position mr kolb becomes entitled operation statute credit involved evidence either thing occurred 22 january 1988 indeed seems clear relevant date follows thats 86 2 deny commissioner entitlement claim benefit set asserted 13 argument thats 86does apply statutory obligation nature created provision theincome tax assessment actin question seems inconsistent english case h curtis builder ltd 1978 1 ch 162and cushla ltd 1979 3 er 415 principle accepted high court gye v mcintyre supra 633 634 joint judgment high court ubi cit expressly denies general proposition 86 confined claim arising contract also asserts 619 86 provision given widest possible scope view extend claim case relates 14 suggestion taxation provision constitute code excluding thebankruptcy actis based decision full court taylor v commissioner taxation 1987 16 fcr 212 think misreads judgment member court case concerned effect relation bankruptcy provision division 2 ofpart viof theincome tax assessment act concerned collection tax deduction wage payable employee division includes 221h full court took view appears judgment jenkinson j 223 division 2 involves scheme designed utilise amount deducted process ofprecisely prescribed set completedwithout regard might otherwise operation ofthe bankruptcy law relation employee whateverremains unpaid conclusion process themeasure provable debt opinion mean translated present case assuming decision may applied division 3a well division 2 bankruptcy law cannot intrude upon process commissioner 22 january 1988 arrived result mr kolb entitled prescribed payment scheme refund 17 148 59 conclude deny 86 operated way affected ultimate destination money refunded comment w hatever remains unpaid conclusion process measure provable debt jenkinson j clearly indicated figure produced operation division 2 immune operation thebankruptcy act accordingly 86is able require figure set obligation 15 conclude commissioner entitled succeed virtue ofs 86 make unnecessary decide abstruse question argued relation alleged application 221yhg theincome tax assessment act 16 remaining question cost amount involved large principle concerned relation tos 86of thebankruptcy actis importance commissioner case far 221yhg theincome tax assessment actis concerned course important one aspect matter difference party far significance decision case concerned another commissioner played considerable part bringing litigation initially later stage raised inappropriate justification action raise difficult defence 221yhg gave explanation according contention provision operated deign discus trustee attempt analysis 17 argument ultimately presented behalf section right suggests drafting make little better trap unwary view commissioner responsibility forthcoming simply tell trustee finally legal advice justified interpolate commissioner seek section amended wish rely case kind application reasonably understood far as 86of thebankruptcy actis concerned defence raised eleventh hour 18 circumstance application dismissed make order cost
Chiodo Investments Pty Ltd v Rilac Pty Ltd (Costs) [2023] VSC 651 (10 November 2023).txt	chiodo investment pty ltd v rilac pty ltd cost 2023 vsc 651 10 november 2023 last updated 13 november 2023in supreme court victorianot restrictedat melbournecommon law divisionproperty list eci 2021 03012chiodo investment pty ltd acn 110 861 857 trustee chiodo family trust plaintiffvrilac pty ptd acn 007 275 407 defendant judge gorton jwhere held melbournedate hearing paper following judgment given 5 october 2023date ruling 10 november 2023case may cited chiodo investment pty ltd v rilac pty ltd cost medium neutral citation 2023 vsc 651 cost plaintiff seek indemnity cost based defendant failure accept offer whether cost decision delayed pending sale property need avoid hindsight assessing response offer whether unreasonable accept offer offer would resulted different arrangement could achieved litigation defendant succeeded issue failed others apportion cost achieve practical justice bhp billiton olympic dam corporation pty ltd v steuler industriewerke gmbh 3 2012 vsc 414 hazeldene chicken farm pty ltd v victorian workcover authority 2 2005 vsca 298 2005 13 vr 435 civil procedure act 2010 vic 29 1 appearance counselsolicitorsfor plaintiffmr l virgonamarshalls dent wilmothfor defendantmr c northropharwood andrew lawyershis honour introduction1 5 october 2023 delivered reason accepted chiodo investment pty ltd contention deed signed one rilac pty ltd director binding rilac pty ltd b accepted rilac pty ltd contention deed extinguished chiodo investment pty ltd beneficial interest property subject deed chiodo investment pty ltd entitled co owner order sale property theproperty law act 1958 c accepted rilac pty ltd contention chiodo investment pty ltd statute barred suing breach contractual obligation rilac pty ltd sell property subject deed accepted chiodo investment pty ltd contention deed gave right effect sale property subject deed recover part proceeds sale extent sale price exceeds 1 5 million e accepted chiodo investment pty ltd contention delay preclude exercising right effect sale property subject deed recover part proceeds sale f accepted chiodo investment pty ltd contention deed gave right recover 10 rental income rilac pty ltd received since 30 october 2012 1 2 party granted time attempt agree form order reflected reason prepare submission question cost able reach agreement form order reason deal question cost said would determine paper 3 party agree chiodo investment pty ltd successful proceeding entitled order cost favour chiodo investment pty ltd seek indemnity cost service offer settle proceeding seek determination cost stayed 90 day property sold true attractiveness offer assessed sale price known rilac pty ltd contends cost order made reflect fact succeeded number issue case ordered pay 50 chiodo investment pty ltd cost 2 chiodo investment pty ltd also indicated might wish bring claim compensation unders 29of thecivil procedure act 2010arising fact rilac pty ltd shortly hearing leased property without advising fact b chiodo investment pty ltd offer whether cost application delayed4 letter dated 1 june 2023 chiodo offered resolve proceeding term rilac pty ltd pay 450 000 within 28 day party otherwise provide mutual release consent proceeding dismissed order cost 5 material court indicated property valued 2 200 000 value property otherwise issue determination division proceeds provided deed sale price would result chiodo investment pty ltd receiving approximately 350 000 putting one side cost sale assuming amount owing representing 10 rental income received rilac pty ltd amounted approximately 36 000 seems case would take chiodo investment pty ltd total receipt 385 000 compared offer rilac pty ltd pay 450 000 inclusive cost chiodo investment pty ltd contends cost taken account apparent offer would represent better result rilac pty ltd achieved trial noted wish cost decision delayed 90 day property first sold 6 chiodo investment pty ltd offer entitle cost assessed indemnity basis unreasonable circumstance rilac pty ltd accept 3 consider sufficient prospect established warrant delaying making cost order wisdom accepting settlement offer assessed hindsight property sold 2 200 000 chiodo investment pty ltd offer probably represented better outcome rilac pty ltd achieved litigation chiodo investment pty ltd cost probably substantial absence knowledge level party party cost recoverable unclear much better outcome would difference may marginal importantly however although evidence property worth 2 200 000 guarantee property would sell sold le offer le attractive sold offer attractive unknown fact chiodo investment pty ltd asked determination cost delayed sale true value offer may ascertained support proposition accepted hindsight used unreasonable rilac pty ltd accepted offer made 7 also perhaps fundamentally significant structural difference chiodo investment pty ltd offer might achieved litigation difficult compare coming obligation pay fixed sum 450 000 within 28 day obliged sell property share proceeds sale whatever money realised sale even taking account fact offer would permit rilac pty ltd retain property cannot said view circumstance case unreasonable rilac pty ltd accepted offer required pay substantial fixed sum within 28 day 8 chiodo investment pty ltd also contended fact rilac pty ltd leased property prior trial without telling done placed breach obligation thecivil procedure act 2010 could affect cost awarded 4 cost determination delayed issue may investigated nothing term deed prevented rilac pty ltd leasing property indeed expectation fact property leased affect cost incurred proceeding document withheld relevant issue decide reason consider rilac pty ltd failure inform chiodo investment pty ltd property leased sufficient reason delay making cost order 9 accordingly propose determine cost order rilac pty ltd pay cost standard basis rather indemnity basis c allowance made varying success party 10 cost punitive making cost order party reflects reality cost incurred borne one party chiodo investment pty ltd successful party entitled cost order favour deciding cost order make entitled take account rilac pty ltd succeeded issue litigated pragmatic approach may taken aim provide substantial justice party regard impression evaluation importance time taken different issue rather attempt unachievable arithmetical precision 5 11 chiodo investment pty ltd succeeded consider principal issue significant issue case significant margin whether rilac pty ltd bound deed issue evidence directed time spent issue chiodo investment pty ltd failed almost incidental comparison said accept making argument upon failed chiodo investment pty ltd put rilac pty ltd expense allowance made matter view practical justice may done party ordering rilac pty ltd pay 90 chiodo investment pty ltd cost taxed default agreement standard basis floated claim compensation thecivil procedure act 201012 express view merit claim chiodo investment pty ltd may bring rilac pty ltd compensation unders 29of thecivil procedure act 2010 order made preclude chiodo investment pty ltd bringing application compensation wish order reserve liberty chiodo investment pty ltd apply compensation unders 29of thecivil procedure act 2010 e disposition13 make following order plaintiff authorised sell property situate known 66 river street south yarra victoria particularly described certificate title volume 10487 folio 633 theproperty defendant shall co operate execute document thing may necessary enable plaintiff sell property give effect sale property defendant shall pay plaintiff 10 total rent received defendant property period september 2015 june 2023 inclusive sum 35 713 30 together interest thereon period august 2021 october 2023 inclusive sum 640 13 defendant shall account plaintiff 10 net rent received defendant property date order date settlement sale property amount paid court plaintiff security defendant cost total sum 99 000 00 released plaintiff paid marshall dent wilmoth law practice trust account amount paid plaintiff security defendant cost sum 26 660 00 together interest thereon held bank melbourne controlled monies account released plaintiff paid marshall dent wilmoth law practice trust account defendant pay 90 plaintiff cost assessed default agreement standard basis liberty plaintiff apply compensation unders 29of thecivil procedure act 2010 vic proceeding otherwise dismissed 1 chiodo investment pty ltd v rilac pty ltd 2023 vsc 590 2 rilac pty ltd proposed form order provided payment 80 chiodo investment pty ltd cost assume typographical error written submission clearly contends 50 3 hazeldene chicken farm pty ltd v victorian workcover authority 2 2005 vsca 298 2005 13 vr 435 441 23 warren cj maxwell p harper aja bhp billiton olympic dam corporation pty ltd v steuler industriewerke gmbh 3 2012 vsc 414 61 4 civil procedure act 2010 vic 29 1 5 see eg chen v chan 2009 vsca 233 10 maxwell p redlich ja j forrest aja
Chalk, Andrew --- "Land Rights under New South Wales Legislation" [1991] AboriginalLawB 55; (1991) 1(52) Aboriginal Law Bulletin 22.txt	chalk andrew land right new south wale legislation 1991 aboriginallawb 55 1991 1 52 aboriginal law bulletin 22land right new south wale legislationbackground actstructure land right schemeland claimsnature titleratesheritage protectionland right new south wale legislationby andrew chalkbackground actin 1983 wran labor government new south wale passed theaboriginal land right act 1983 act passage followed several year protest political pressure part state aboriginal community supporter response conformity recommendation contained thereport select committee legislative assembly aborigine known thekeane report initially select committee established broad term reference one specifically considered issue land right principal object inquire generally cause socio economic deprivation disadvantage suffered aboriginal citizen new south wale however select committee shifted principal focus directly land right community proclaimed concern word three south coast elder capture spirit concern believe speaking majority aborigine along south coast throughout nsw say committee term reference wrong wrong give importance land right put land right third place among lot thing considered fact one real problem facing nsw aborigine land right thing sorted time land 1 thekeane reportset range recommendation matter requiring consideration including provision right claim crown land also possibly leasehold freehold land acknowledged need return responsibility protection management culturally significant place raised suggestion making payment royalty mining quarrying forestry operation although generally well received aboriginal community government baulked endorsing thereporton ground financial cost implementation instead green paper containing draft bill circulated legislation enacted two month later consultation considered entirely inadequate final legislation represented substantial retraction thereport srecommendations notably absent statute provision relating sacred site 2 structure land right schemetheactestablishes three tiered hierarchy land council state regional local level presently 117 local aboriginal land council membership restricted aboriginal person association area land council situated amendment theact passed 1990 finally proclaimed august 1991 divest regional aboriginal land council many power power transferred state local level practical effect amendment make regional aboriginal land council administrative arm new south wale aboriginal land council nswalc two important part act conferring substantive right land claiming provision funding provision nswalc local aboriginal land council make claim certain crown land 3 nswalc entitled receive annual funding allocation state government calculated 7 5 government annual revenue land tax 4 allocation cease 1998 nswalc required invest 50 may fund current activity land council remainder addition land claiming funding provision act give certain limited right land council respect hunting fishing well ownership mineral land claimsto date theact sland claiming provision proved extremely disappointing state aboriginal community explanatory memorandum bill commented vast tract crown land available claim go way redress injustice dispossession 5 however actual record tell different story 3 577 claim lodged june 1990 597 granted 858 claim remained outstanding lodged 6 year earlier term total area approximately 34 500 hectare granted freehold another 1 560 hectare granted western division lease half freehold land granted comprised single claim semi arid far north west state land granted represents le 0 05 total land state 6 land claiming provision contained s 36 37 theact claim granted respect claimable crown land section 36 1 provides part claimable crown land mean land vested majesty claim made land division able lawfully sold leased reserved dedicated purpose crown land consolidation act 1913 thewestern land act 1901 b lawfully used occupied b1 comprise land opinion crown land minister needed likely needed residential land c needed likely needed essential public purpose nsw court appeal held claim made land shown fall within definition claimable crown land residual discretion left minister refuse claim 7 despite statutory ground refusal sufficiently broad leave minister considerable scope reject claim amply illustrated thewinbar claim 1984 nswalc lodged claim 25 516 hectare semi arid grazing land located 150km west bourke claim refused minister informing land council regard fact land required ensure maintenance viable farming unit term requirement economically effective agricultural holding western division state need farm build meet requirement 8 minister effectively saying land could granted need endow existing land holder area however evidence put honour mr justice stein claim went appeal showed land used grazing rural purpose previous 15 year despite government offering land surrounding farmer claim made depasturing stock following severe bush fire nearby area appeal thewinbar claim minister issued certificate pursuant 36 8 theactstating land needed essential public purpose section deems certificate shall accepted final conclusive evidence matter set certificate shall liable appeal review 9 considerable litigation amendment theactaimed preventing land council granted anything leasehold land state western division minister transferred land lease perpetuity unacceptable nswalc matter taken court appeal second time minister ordered transfer fee simple estate despite eventual success case highlighted potential minister refuse claim ground land needed essential public purpose rely 36 8 certificate stifle appeal merit bignold j described 36 8 conceptually hostile legislative context confers clear presumptive entitlement aboriginal land council claimable crown land confers appeal right seek vindicate entitlement 10 colloquial language stein j likened act giving food one hand taking away food reached mouth 11 nature titleprior 1990 amendment 40 theact land acquired land council inalienable extent could sold mortgaged land could nevertheless leased transferred another land council 1990 amendment allow sale land purchased land council investment section 29 31 12 section regulate disbursement land council bank account new provision somewhat ambiguous culturally significant land acquired purchase s 29 31 rather claim however since acquisition intended realise financial gain would misleading categorise investment yet absence special notation certificate title potential purchaser mortgagee may unaware restriction land sale section 40c provide land acquired claim also sold special resolution local aboriginal land council either owns land whose area land situated passed determining land cultural significance aborigine area resolution requires 80 majority effective secretary land council issue certificate evidencing disposal land contravene theact ratesalthough 43 theactmakes provision minister exempt land council requirement pay rate specified parcel land power used sparingly much obligation pay rate probably important factor inhibiting economic development many land council threatens major drain land council resource future section 44 44a provide consolation land cannot sold writ execution non payment rate although relevant local public authority given right recover unpaid monies nswalc heritage protectionin term providing right land theacthas many obvious shortcoming foremost failure take account land spiritual cultural significance aboriginal community fact framed way could fairly described recognising economic value land theact spreamble notwithstanding ignores one fundamental base upon aboriginal right land asserted second reading speech frank walker minister aboriginal affair time acknowledged failing mention one element missing could considered essential element land right legislation provision protection sacred site significance land law affected legislation area highly complex religious spiritual nature intention seek assistance new aboriginal council formed proposed legislation introducing aboriginal heritage commission bill protection ownership sacred site site significance 13 preliminary report eventually released 1988 theministerial taskforce aboriginal heritage culturethe greiner government taken action pursuance responsibility management protection aboriginal heritage remains hand predominantly non aboriginal officer national park wildlife service 1983 frank walker suggested aboriginal people nsw likely regard theact first step struggle justice 14 despite limitation legislation nevertheless proved important milestone one aboriginal community demonstrated strong commitment defend 1 quoted wilkie aboriginal land right new south wale apcol sydney 1985 p17 2 see wilkie op cit 3 section 36 37 4 section 28 5 hansard assembly 24 march 1983 5095 6 extracted fromland claim briefing paperprepared nswalc nswalc 1990 annual report 7 nswalc v minister administering crown land consolidation act thewestern land act winbar claim 3 1988 66 lgra 265at 271 8 nswalc v minister natural resource winbar claim 1986 59 lgra 333at 334 9 1986 amendment theactattempted strengthen privative effect 36 8 10 darkingung lalc v minister natural resource 1985 58 lgra 298at 303 11 darkingung lalc v minister natural resource 2 1987 61 lgra 218at 230 12 section 40 3 13 hansard assembly 24 march 1983 5090 14 ibidat 5093
Applicant: Mr Brownie Hoi Kwai Lam Principal: Mr Brownie Hoi Kwai Lam IRT Reference: N91_00695 #number 576 [1991] IRTA 576 (20 December 1991).txt	applicant mr brownie hoi kwai lam principal mr brownie hoi kwai lam irt reference n91 00695 number 576 1991 irta 576 20 december 1991 brownie hoi kwai lamdecision joseph metledge member delivered sydney 23 december 1991 extended eligibility family temporary entry permit whether applicant special need relative relation mother evidence mother need assistance contemplated definition special need relative migration act 1958 121migration regulation rr 2 special need relative 34a 127migration review regulation r 29lam irt decision n91 00582 delivered 21 november 1991 immigration review tribunalstatement decision reason decisionirt reference n91 00695 576 docapplicant mr brownie hoi kwai lamprincipal mr brownie hoi kwai lamtribunal mr j metledge presiding memberdate 23 december 1991place sydneydecision tribunal affirms decision refusing grant extended eligibility family entry permit principal reason decisionthis review decision refusing grant extended eligibility family entry permitto principal mr brownie hoi kwai lam application lodged sydney 8 february 1990 decision made delegate minister immigration local government ethnic affair 21 november 1990 application internal review decision made migration internal review office miro 21 december 1990 miro made decision matter transferred tribunal regulation 29 migration review regulation principal arrived australia 3 september 1988 holding visitor visa arrival entry permit granted valid 3 march 1989 entry permit granted principal consequently became illegal entrant furthermore entry permit endorsed employment prohibited without written permission authorised officer order determine entitlement applicant visa entry permit tribunal must regard provision themigration act 1958and migration regulation regulation provide class visa entry permit prescribe criterion met applicant becomes entitled visa entry permit non citizen wish travel australia must hold valid visa holder valid visa may travel landing place australia airport may leave airport person require grant valid entry permit arrival enable enter remain legally australia regulation provide grant permanent visa entry permit temporary visa entry permit class temporary visa entry permit issued visitor preclude holder applying permanent residence arrival australia however person may eligible apply one number called extended eligibility entry permit class temporary entry permit preclude holder applying permanent residence prescribed criterion health public interest criterion apply class visa entry permit regulation also prescribe additional criterion applicable particular class visa entry permit tribunal generally first examine whether additional criterion particular class visa permit satisfied criterion satisfied need consider whether prescribed criterion satisfied virtue regulation 34a migration regulation applicant must satisfy prescribed criterion health public interest criterion time application visa entry permit applicable time certain exception rule set regulation 34a exception contained elsewhere regulation exception specifically mentioned themigration act particularly insection 24 3 andsection 30 2 reference made relevant time purpose case need arises relevant criterion satisfied applicant entitled issue extended eligibility family entry permit contained inregulation 127 date original application regulation 127provided part follows 127 following criterion prescribed relation extended eligibility family entry permit time application entry permit decided applicant dependent child whose last custodial parent died since applicant arrival australia new custodial parent australian citizen australian permanent resident b least one become australian citizen australian permanent resident ii parent australian citizen australian permanent resident become aged parent since arriving australia satisfies balance family test b aged parent result death permanent migration child child resident australia reasonable period since arrival applicant australia satisfies balance family test iii result death permanent incapacitation since applicant arrival australia become aged dependent relative remaining relative special need relative orphan relative b relative australia relationship relates australian citizen australian permanent resident resident australia reasonable period iv illegal entrant referred subparagraph 25 1 b v dependent child one parent become australian permanent resident since arrival child australia b included parent application visa referred item 1 12 inclusive inpart 1of schedule 2 item inpart 2of schedule 2 item 1 4 inclusive inpart 3of schedule 2 b time application entry permit decided applicant satisfies public interest criterion applicable prescribed health criterion specified item 9 schedule 1 term special need relative defined inregulation 2as follows special need relative relation australian citizen australian permanent resident usually resident australia mean relative willing able give substantial continuing assistance citizen resident citizen resident permanent long term need assistance death disability prolonged illness serious circumstance affecting citizen resident personally member family unit b assistance cannot reasonably obtained relative citizen resident relative australian citizen australian permanent resident ii welfare hospital nursing community service australia principal claimed entitled extended eligibility family entry permit ground special need relative mother ting yung lam australian citizen main ground put forward principal follows 1 chinese culture relative important thing mother 70 year old 2 last year hip joint replacement operation gave courage go operation 3 son made australian friend enjoys australian education system read chinese hard return start beginning 4 three brother one sister australia cannot help mother one brother work sometimes go overseas another brother life mother permanent resident third brother jail five year sister married look family 5 mother need go doctor every week need wife accompany chinese doctor prescribes herbal medicine 6 also go another doctor joint age symptom heart problem go doctor three time every two week 7 wife go doctor look sometimes help take bath 8 working time visit mother see 9 used work restaurant owned eldest brother work restaurant owned brother sold restaurant 10 eldest brother go overseas often family stay maroubra 11 mother life brother lam hoi siu australia 10 year illegally also applied remain australia tribunal already reviewed decision refusing grant extended eligibility family entry permit lam hoi siu principal brother also claimed special need relative elderly mother mr lam learned member case siu irt n91 00582 made following finding tribunal accepts mr lam need assistance combination factor including widowhood age medical condition evidence presented need assistance necessarily would involve live full time aid tribunal find level assistance needed mr lam could reasonably obtained child resident australia special assistance could reasonably obtained health community service required accordingly tribunal concludes definition special need relative satisfied case fact ofre siuare almost identical case case concern mother alleged need son earlier decision tribunal binding later decision must carry lot weight especially evidence earlier decision based almost identical evidence later decision based case tribunal come conclusion one reached decision ofre siu definition special need relative satisfied case reason given decision tribunal held number decision mere love affection sufficient satisfy definition inregulation 2of special need relative must permanent long term need assistance cannot reasonably obtained relative welfare hospital nursing community service evidence present case principal wife help mother housework take doctor necessary service available child legally resident australia community service nothing evidence suggest mother need assistance within meaning special need relative defined inregulation 2 principal applied extended eligibility family entry permit evidence fulfil prescribed criterion class entry permit furthermore nothing departmental file submission made tribunal appear review principal might ground apply entry permit class different class enable tribunal invoke called aggregation provision ofsection 121of themigration actand afford principal opportunity make application accordingly tribunal option affirm original decision decisionthis tribunal affirms decision refusing grant extended eligibility family entry permit principal j metledge presiding member
Re Peter John Hoskin and Defence Force Retirement and Death Benefits Authority [1990] AATA 247 (19 October 1990).txt	peter john hoskin defence force retirement death benefit authority 1990 aata 247 19 october 1990 administrative appeal tribunalre peter john hoskinand defence force retirement death benefit authorityno a89 174aat 6299defence force retirement death benefitscourtadministrative appeal tribunalgeneral administrative divisionr k todd 1 deputy president catchwordsdefence force retirement death benefit application extension time elect pay transfer value whether special circumstance existed justifying extension time failure elect initially due financial commitment financial inability insufficient alone constitute special circumstance shute followeddefence force retirement death benefit act 1973 s 68 1 69 1 shute defence force retirement death benefit authority 1984 6 aln n106hearingcanberra19 10 1990orderthe tribunal affirms decision review decisionthis application review decision special circumstance exist sufficient allow applicant period elect pay commonwealth transfer value provided bys 69of thedefence force retirement death benefit act 1973 thedfrdb act 2 applicant serving officer royal australian navy ran rank commander formerly officer royal navy rn served 1 may 1956 30 october 1983 come australia serve exchange service ran 1981 1982 announcement future cut rn 3 ran one stage although arrangement later cancelled acquire aircraft carrier hm invincible rn applicant special skill related aircraft carrier retired rn redundancy ground 30 october 1983 1 november 1983 joined ran full time service emergency list involved engagement period four year applicant cannot serve requisite 15 year 1983 without permission governor general leaving service expiration period dfrdb scheme unamended would involve receiving return contribution without interest alternative including deferred pension could take age 60 option available substantial circumstance would highly beneficial applicant could pay transfer value described 4 section 69 1 thedfrdb actprovides follows person becomes az contributing memberhas time becoming member inemployment within outside australia upon thetermination transfer value became payableto respect 25th may 1971 superannuation scheme applicable relationto employment member notice writing given tothe authority within period ninety daysafter date becomes contributingmember within period theauthority special circumstance allows electsto pay commonwealth amount equal theamount transfer value two moretransfer value became payable sum theamounts transfer value b amount expiration thatperiod ninety day period asthe case may paid commonwealth succeeding provision section effect 5 applicant retired rn received terminal grant pound sterling 21 850 92 special capital payment pound sterling 28 825 92 resettlement grant pound sterling 6 868 08 life commutation sum pound sterling 41 237 50 pension pound sterling 7 283 64 p issue terminal grant special capital payment applicant contends terminal grant constituted transfer value within meaning act entered ran applicant written respondent 11 january 1984 stating wished buy preserved right letter raised among thing status special capital payment 6 respondent replied applicant 14 february 1984 view taken terminal grant special capital payment eligible paid transfer value applicant made successful election pay transfer value respondent would required make lump sum payment au 82 280 95 equivalent australian currency pound sterling 50 676 84 exchange rate applicable date applicant entry australian defence force would gain applicant letter said credit service 12 year 99 day 7 applicant paid amount present trouble would arisen cost final transfer family australia financial commitment education child made feasible pay whole amount would able pay amount referable terminal grant decided put continue plan buy advised respondent accordingly 8 february 1989 applicant circumstance changed child becoming independent prepared buy smaller house thereby release capital purpose paying full transfer value 10 february 1989 wrote letter respondent position generally expressed understanding could buy equivalent time ran would awarded number year according sum involved would seem way hope gain real benefit superannuation scheme seem remember would hand total rn lump sum payment confirm remind sum involved 9 month later march 1989 applicant received long detailed reply respondent setting various option open unnecessary set detail enough say easy understand applicant contention thing stand retirement well provided replied april 1989 asking respondent permit transfer dfrdb lump sum received royal navy must translated understood request allow applicant unders 69 1 act period elect pay transfer value respondent refused application review result refusal 10 opinion issue tribunal whether special capital payment transfer value would depend answer question whether special capital payment transfer value paid superannuation scheme see 68 1 act told mr fisher respondent united kingdom scheme contributory scheme benefit based wholly contribution employer may accepted long doubt advantage many special capital payment transfer value 69 1 requires sum amount transfer value paid election pay transfer value made cannot elect pay one transfer value another follows time applicant press point back early 1984 correct contend special capital payment transfer value could applied tribunal review decision perhaps unfortunate advised right newcomer australia country general review tribunal empowered review wide range administrative decision merit hardly clamed knowing entitlement come administrative appeal tribunal trusted pressed point stage demanding decisive ruling would received notification time long past lodge application review decision hope done namely apply unders 69 1 position provision better 11 applicat must able unders 69 1 point special circumstance special circumstance alleged exist highest point argument applicant must original offer incorrectly made claim special capital payment included transfer value involved incorrect interpretation act cannot put special circumstance even contention held correct express opinion repeat time ventilate question back 1984 ruling could obtained tribunal mr fisher submitted question status special capital payment really longer relevant 12 real reason however applicant claim must fail reason stated shute defence force retrirement death benefit authority 1984 6 aln n106 decision 1605 need set deputy president hall said paragraph 17 21 26 reason decision 17 far as 69of act concerned isimportant observe basic requirementthat laid section respect totransfer value election madeand transfer value paid within period 90days date person becomes acontributing member whilst discretionto extend period special circumstance parliament could taken view haveintended matter normal course personswho joined force option deferfor substantial number year making theelection consequential payment financiallyconvenient time legislation envisagethat person whoms 69applies determine byreference financial circumstance thepoint time make payment atransfer value 21 view present fact disclose anunfortunate set circumstance point ofview applicant circumstance whichcan categorised special sense unusual uncommon exceptional theordinary run case agree mr fisher appeared behalf authority ifthe financial inability person make thepayment date required paidwas regarded without constituting special circumstance could doubt beavailed ground deferring making thenecessary election payment many case whilst may well circumstance whichshort term extension time allow opportunityfor member financially embarrassed toarrange finance order meet required paymentwill appropriate satisfy requirementas special circumstance extension thestipulated time 90 day 10 year iswhat applicant sought present case isquite another matter long way theact contemplates normal course event 26 final analysis however mr shute seekingto many serviceman similar positionwould happy able deferfor substantial period year payment thetransfer value necessary gain credit additional effective service pension purpose said accordance basic scheme ofthe act view would inconsistent thatscheme treat circumstance relied upon mrshute constituting special circumstance justifyinga substantial extension time makingan election unders 69 13 adopt reasoning opinion bound affirm decision review would add hope may alleviation applicant position result proposed change dfrdb scheme particularly relation payment interest contribution
Naranpanawa v Scotts Group of Companies [2014] FWC 2225 (4 April 2014).txt	naranpanawa v scott group company 2014 fwc 2225 4 april 2014 2014 fwc 2225fair work commissiondecisionfair work act 2009s 394 unfair dismissalranjith naranpanawavthe scott group company u2013 14059 deputy president gooleymelbourne 4 april 2014application relief unfair dismissal 1 30 september 2013 mr ranjith naranpanawa made application remedy unfair dismissal unders 394of thefair work act 2009 act mr naranpanawa employment terminated scott group company sgc 19 september 2013 2 matter subject conciliation however matter resolved consequently direction issued matter listed hearing 3 4 february 2014 3 mr naranpanawa directed file outline submission witness statement documentary material wished rely noon 16 december 2013 4 mr naranpanawa requested extension file submission period time granted mr naranpanawa required file material 3 january 2014 5 mr naranpanawa comply direction matter listed non compliance hearing commissioner wilson 16 january 2014 6 mr naranpanawa directed file outline submission witness statement documentary material wished rely noon 14 february 2014 7 17 february 2014 sgc filed objection application sought dismissal mr naranpanawa application due failure comply fair work commission commission direction 8 18 february 2014 mr naranpanawa sent correspondence informing sgc 399aapplication mr naranpanawa directed file submission documentary material respect sgc application close business 4 march 2014 mr naranpanawa advised failed comply direction application would dismissed 9 mr naranpanawa file material commission 10 section 399aof act provides follows 399a dismissing application 1 fwc may subject subsection 2 dismiss application order division 4 fwc satisfied applicant unreasonably failed attend conference conducted fwc hearing held fwc relation application b failed comply direction order fwc relating application c failed discontinue application settlement agreement concluded 2 fwc may exercise power subsection 1 application employer 3 section limit fwc may dismiss application 11 satisfied sgc objection filed 17 february 2014 application matter dismissed mr naranpanawa failure comply direction commission 12 section 593of act provides commission required hold hearing except provided act 13 mr naranpanawa file material opposition application dismiss determine application paper 14 considering material mr naranpanawa application remedy unfair dismissal dismissed comply direction order giving effect decision issued today deputy presidentprinted authority commonwealth government printer price code pr549294
Edelman & Ziu [2010] FamCAFC 74 (25 March 2010).txt	edelman ziu 2010 famcafc 74 25 march 2010 last updated 12 april 2010family court australiaedelman ziu 2010 famcafc 74family law appeal application extension time file notice appeal application day time decision federal magistrate departure arrangement child trial proper argument raised appeal limited prejudice respondent mother independent child lawyer application granted family law act 1975 cth gallo v dawson 1990 hca 30 1990 93 alr 479appellant mr edelmanrespondent m ziuindependent child lawyer legal aid commission new south walesfile number lec1of2009appeal number na13of2010date delivered 25 march 2010place delivered brisbaneplace heard brisbanejudgment may jhearing date 25 march 2010lower court jurisdiction federal magistrate courtlower court judgment date 22 december 2009lower court mnc 2009 fmcafam 1227representationcounsel appellant mr lawssolicitor appellant mccarthy durie ryan neilsolicitor respondent m fletcherg j legalcounsel independent child lawyerin personsolicitor independent child lawyerlegal aid commission new south walesorders 1 time within father may file notice appeal order federal magistrate slack made 22 december 2009 extended 4 00pm 9 april 2010 2 respondent independent child lawyer cost incidental application extension time within appeal reserved notedthat publication judgment pseudonymedelman ziuis approved pursuant tos 121 9 g thefamily law act 1975 cth appellate jurisdiction family court australiaat brisbaneappeal number na 13 2010file number lec 1 2009mr edelmanappellantandms ziurespondentex temporereasons judgmentin application filed 27 january 2010 father seek extension time file notice appeal relation order made 22 december 2009 federal magistrate slack obvious application day time judgment received christmas affidavit support application also filed 27 january 2010 applicant explains reason delay attempting file notice appeal first say poor financial circumstance secondly legal aid trial since unable find lawyer represent apparently lawyer direct reference affidavit perhaps unsurprisingly second matter must consider question whether appeal merit helpfully mr law appears applicant provided written submission correctly refer principle must consider including well known decision ofgallo v dawson 1990 hca 30 1990 93 alr 479 merit mr law submitted addition orally matter relation decision child born february 2004 raise proper ground appeal example honour wrongly approached matter though mother primary caregiver honour pay attention sufficiently arrangement time hearing child honour almost dismissive stable environment child raised intended notice appeal ask return equal shared parenting time relation child child remain living b apparently previously living order made honour quite departure seems situation time trial ordered child spend time father school term 5 00pm friday 4 00pm sunday two three weekend half school holiday intended also appeal relation property settlement matter extent dependent change order relation circumstance child mr law tell pay attention drafting notice appeal carefully drafted circumstance seems little prejudice respondent respondent wife independent child lawyer particular application filed day time seem least face proper argument raised full court certify preceding nine 9 paragraph true copy reason judgment honourable justice may associate date 9 april 2010
Altintas v O'Dea Lawyers [2018] FCAFC 165 (27 September 2018).txt	altintas v dea lawyer 2018 fcafc 165 27 september 2018 last updated 27 september 2018federal court australiaaltintas v dea lawyer 2018 fcafc 165file number sad 347 2017judges white perry charlesworth jjdate judgment 27 september 2018catchwords industrial law question reserved south australian employment tribunal saet question concern saet jurisdiction hear determine appeal industrial magistrate exercising jurisdiction thefair work act 2009 cth whether federal court jurisdiction unders 26of thefederal court australia act 1976 cth hear determine question whether appeal would lie court appellate decision saet subject action whether 69 13 thestatutes amendment south australian employment tribunal act 2016 sa vested saet jurisdiction hear appellant appeal held saet jurisdiction determine appellant appeal accordingly appeal would lie saet decision court court jurisdiction hear determine reserved question legislation fair work act 2009 cth s 12 539 545 546 565federal court australia act 1976 cth 26fair work regulation 2009 cth reg 1 05fair work act 1994 sa 69industrial employee relation act 1994 sa industrial relation act 1972 sa return work act 2014 sa south australian employment tribunal act 2014 sa statute amendment south australian employment tribunal act 2016 sa s 4 5 66b 69cases cited altintas v dea lawyer 2017 sairc 7bragg v gwa group holding ltd 2016 sairc 32kronen v commercial motor industry pty ltd trading cmi toyota 2018 fcafc 136pope nitschke pty ltd trustee pope nitschke unit trust v parson 2017 sairc 6simon v bowen family trust pod squared podiatry centre 2016 sairc 21date hearing 31 may 2018registry south australiadivision fair work divisionnational practice area employment industrial relationscategory catchwordsnumber paragraph 38counsel appellant mr k hannasolicitor appellant wearing lawcounsel respondent respondent appearorderssad 347 2017notice question referred south australian employment tribunalbetween serum altintasappellantand dea lawyersrespondentjudges white perry charlesworth jjdate order 27 september 2018the court decline answer reserved question basis jurisdiction directs registrar court provide copy court judgment attorneygeneral state south australia president south australian employment tribunal note entry order dealt inrule 39 32of thefederal court rule 2011 reason judgmentthe court judgment concern question reserved court south australian employment tribunal saet 14 december 2017 question concern jurisdiction saet hear determine appeal industrial magistrate exercising jurisdiction thefair work act 2009 cth fw act particular whether appeal lie court reason follow consider court jurisdiction hear determine question accordingly refrain background circumstancesit convenient following description use designation party appeal former industrial relation court south australia ircsa appeal gave rise referral 2015 appellant filed application ircsa seeking order respondent pay amount alleged due respect employment march april 2015 alleged entitled claimed amount reason clerk private sector award 2010 award made fw act total sum claimed appellant 3 189 30 addition appellant sought order respondent pay pecuniary penalty appellant summons indicated invoked jurisdiction conferred ircsa s 539 545 546 fw act application heard industrial magistrate ircsa concluded one relatively minor respect appellant proven claim altintas v dea lawyer 2017 sairc 7 83 respondent conceded paid appellant four hour worked 13 april 2015 magistrate said would make order respect hour 83 would hear party respect application imposition penalty 86 however hearing industrial magistrate indeed seems yet order giving effect magistrate finding despite 9 march 2017 appellant filed notice appeal ircsa judge appeal allocated judge farrell concerned jurisdiction ircsa hear determine appeal court informed judge farrell concern arose term 565 fw act provides relevantly 565appeals eligible state territory courtsappeals original decision eligible state territory court 1 appeal lie federal court decision eligible state territory court exercising jurisdiction act 1a appeal lie decision eligible state territory court exercising jurisdiction act except court exercising summary jurisdiction appeal court another eligible state territory court state territory provided law state territory b case appeal provided subsection 1 appeal appellate decision eligible state territory court 1b appeal lie federal court decision eligible state territory court made appeal decision decision court another eligible state territory court state territory b made exercise jurisdiction act 1c appeal lie decision subsection 1b applies except appeal provided subsection section 565 establishes scheme hearing determination appeal decision eligible state territory court exercising jurisdiction fw act subsection 1 provides appeal lie court decision effect sub 1a state territory court exercising summary jurisdiction appeal also lie court another eligible state territory court provided law state territory effect sub 1b 1c appeal decision eligible state territory court made exercise sub 1a appellate jurisdiction lie court question concerning judge farrell whether industrial magistrate exercising summary jurisdiction determined appellant application honour appreciated magistrate exercising summary jurisdiction appeal decision lie ircsa instead accordance 565 1a b court apparent divergent view ircsa whether industrial magistrate hearing determining claim s 539 545 546 fw act exercising summary jurisdiction judge farrell considers industrial magistrate circumstance exercising summary jurisdiction consequence appeal magistrate decision lie court simon v bowen family trust pod squared podiatry centre 2016 sairc 21 bragg v gwa group holding ltd 2016 sairc 32 judge hannon hand concluded industrial magistrate circumstance exercising summary jurisdiction pope nitschke pty ltd trustee pope nitschke unit trust v parson 2017 sairc 6 hearing party present matter 5 april 2017 judge farrell adjourned matter 4 may 2017 direction senior judge ircsa respect future conduct appeal senior judge mccusker held case management hearing discussion mean issue jurisdiction ircsa hear appeal could determined hearing full bench ircsa referral question law court pursuant tos 26of thefederal court australia act 1976 cth fca act seems senior judge considered latter course preferable discussion exchange correspondence concerning framing question july 2017 party agreed upon form question however hearing ircsa next event july 2017 appears referral 14 december 2017 question court substantive part document containing referral follows notice question reservedwith consent party question reserved consideration court south australian employment court set notice party thisnotice question reservedis made pursuant section 26 fca act question reservedhas south australian employment tribunal court session south australian employment court jurisdiction hear appeal industrial magistrate circumstance matter involves entitlement federal award made pursuant thefair work act 2009 cth imposition pecuniary penalty respondent breach act attached copy 2 1 judgment industrial magistrate 24 february 2017 2 2 notice appeal 9 march 2017 date 14 december 2017 signed leah mclay registrarsouth australian employment tribunalas seen referral emanate ircsa south australian employment tribunal court session known south australian employment court however indication saet ever convened determine make referral fact referral seems constituted administrative act registrar saet appellant represented hearing court respondent appear although attended case management hearing 8 march 2018 provided explanation court nonattendance court jurisdictionthe notice reserving question court indicates saet considered 26 fca act authorised referral section 26 provides 26cases stated question reserved 1 court appeal lie court may state case reserve question concerning matter respect appeal would lie judgment firstmentioned court consideration court court jurisdiction hear determine case question 2 subject act jurisdiction court subsection 1 court stating case reserving question court summary jurisdiction must exercised single judge ii judge considers appropriate jurisdiction court relation matter exercised full court full court b court stating case reserving question court summary jurisdiction must exercised full court 3 court referred subsection 1 shall state case reserve refer question concerning matter referred subsection court court effect sub 1 appeal may made court court appeal lie may state case reserve question concerning matter respect appeal would lie case stated question reserved circumstance court jurisdiction hear determine case question conversely matter one appeal would lie court jurisdiction hear determine question mean present case court jurisdiction hear determine reserved question appeal would lie court decision appellant appeal saet section 565 1b fw act set earlier reason source court jurisdiction hear appeal appellate decision eligible state territory court provides appeal lie court decision eligible state territory court made appeal decision defined kind must reference appeal eligible state territory court jurisdiction hear determine accordance sub 1a subsection 1b cannot sensibly understood referring kind appeal decision eligible state territory court reason follow satisfied quite apart issue concerning exercise summary jurisdiction saet jurisdiction hear determine appeal appellant decision industrial magistrate establishment saetinkronen v commercial motor industry pty ltd trading cmi toyota 2018 fcafc 136 court considered provision concerning establishment saet jurisdiction convenient repeat presently court reason inkronenconcerning matter saet established 1 july 2015 thesouth australian employment tribunal act 2014 sa saet act 1 july 2015 30 june 2017 jurisdiction confined hearing determination proceeding thereturn work act 2014 sa 2016 south australian parliament enacted thestatutes amendment south australian employment tribunal act 2016 sa 2016 amendment amongst thing 2016 amendment provided tribunal court session known south australian employment court part saet 5 section 66b vested jurisdiction specified matter tribunal court session 2016 amendment also provided another part saet act industrial relation commission came operation 1 july 2017 part 4 2016 amendment effected amendment thefair work act 1994 sa fw sa act particular substituted new ch 2 existing ch 2 amongst thing saet thereby vested jurisdiction hear determine monetary claim industrial legislation award instrument part 4 2016 amendment contained number special provision relating monetary claim also contained transitional provision 69 69 2 ircsa industrial relation commission south australia dissolved occurred effect 1 july 2017 subsection 69 provided proceeding could commenced ircsa commenced continued saet 11 determination industrial authority principal act force immediately relevant day relevant day taken determination tribunal 12 right bring proceeding industrial authority existence principal act relevant day exercised day exercised part operation right arose relevant proceeding may commenced tribunal rather industrial authority 13 proceeding industrial authority principal act immediately relevant day subject direction president tribunal think fit transferred tribunal may proceed commenced tribunal 14 tribunal may receive evidence transcript evidence proceeding industrial authority draw conclusion fact evidence appear proper b adopt finding determination industrial authority may relevant proceeding tribunal c adopt make determination relation proceeding industrial authority relevant day including make determination relation proceeding fully heard relevant day take step promote ensure smoothest possible transition 1 jurisdiction another connection operation section term principal act used provision reference fw sa act counsel appellant submitted relevant transitional provision found schedule 1 fw sa act accept submission schedule 1 provision enacted 1994 provide transition theindustrial relation act 1972 sa theindustrial employee relation act 1994 sa fw sa act known application transition 2017 ircsa saet saet declared regulation eligible state territory court purpose fw act see definition eligible state territory court 12 fw act reg 1 05 thefair work regulation 2009 cth jurisdiction saetthe material indicate saet come regard seized appellant appeal ircsa seems reasonable suppose however thought one provision 69 2016 amendment effect transferring appellant appeal ircsa saet particular sub 13 may thought pertinent provides proceeding term would include appeal proceeding industrial authority term defined include ircsa immediately relevant day transferred saet subject direction president saet think fit proceed commenced saet inkronen court held 69 13 construed regard limit legislative power parliament south australia 52 53 led court conclude 69 13 refers proceeding industrial authorityexercising jurisdictionunder fw sa act 57 refer proceeding ircsa exercising jurisdiction fw act already noted present case ircsa exercising jurisdiction vested s 539 545 546 fw act accordingly 69 13 2016 amendment cannot regarded mean saet became vested jurisdiction hear determine appellant appeal similar reason 565 1a fw act cannot regarded source jurisdiction saet hear appellant appeal previously noted sub 1a provides appeal lie state territory court exercising summary jurisdiction matter fw act court another state territory courtas provided law state territory construction 69 13 adopted inkronen cannot regarded law law south australian parliament providing appeal decision ircsa exercising jurisdiction fw act lie saet overlooked 69 11 2016 amendment provides determination industrial authority fw sa act force relevant day taken determination saet term determination used 69 11 defined 2016 amendment observe however 4 2016 amendment introduced saet act definition term decision follows decision person body tribunal act includes direction determination order person body seems therefore term determination may meaning broader order may encompass decision finding prepared proceed understanding term although noting court receive submission question however consequence presently reason given inkronen determination cannot regarded determination ircsain exercise jurisdictionunder fw sa act accordingly conclude saet lack jurisdiction hear determine appellant appeal mean appeal would lie court order saet appellant appeal inkronen court held saet implied jurisdiction s 545 3 546 1 determine jurisdiction appeal judgment may court remains case however given jurisdiction saet present circumstance determined inkronen implied jurisdiction cannot support reservation question pursuant 26 fca act accordance reason inkronenat 52 63 appellant appeal order industrial magistrate made lie either ircsa 565 1a directly court 565 1 conclusion jurisdictionas appeal would lie court judgment saet appellant appeal procedure 26 fca act available accordingly court lack jurisdiction hear determine reserved question apart saying basis submission court receive reason judge hannon inpope nitschkeappear force court decline answer reserved question light 36 reason direct copy judgment provided attorneygeneral state south australia president saet certify preceding thirty eight 38 numbered paragraph true copy reason judgment herein honourable justice white perry charlesworth associate dated 27 september 2018
Airport Handling Services Australia Pty Ltd v Commissioner of Taxation [2021] FCA 1405 (15 November 2021).txt	airport handling service australia pty ltd v commissioner taxation 2021 fca 1405 15 november 2021 federal court australiaairport handling service australia pty ltd v commissioner taxation 2021 fca 1405file number vid 48 2021 vid 49 2021 vid 50 2021 vid 51 2021 vid 52 2021 vid 53 2021 vid 54 2021 vid 56 2021judgment callaghan jdate judgment 15 november 2021catchwords taxation coronavirus economic response package payment benefit act 2020 cth coronavirus economic response package payment benefit rule 2020 cth coronavirus economic response package payment benefit amendment rule 2 2020 cth jobkeeper scheme appeal decision commissioner taxation disallow notice objection decision applicant eligible payment jobkeeper scheme applicant australian resident sovereign entity within meaning 880 15 theincome tax assessment act 1997 cth applicant eligible employer jobkeeper scheme applicant made payment anticipation would subsidised jobkeeper scheme amendment made bycoronavirus economic response package payment benefit amendment rule 2 2020 cth criterion eligibility past date whether legislative instrument operated retrospectively whether applicant right time registration legislative instrument affected disadvantage within meaning ofs 12of thelegislation act 2003 cth whether applicant entitled jobkeeper payment unders 6 1 ofcoronavirus economic response package payment benefit rule 2020 cth past datestatutory interpretation whether provision thecoronavirus economic response package payment benefit amendment rule 2 2020 cth commenced registration legislative instrument provided whole instrument commenced immediately registration legislative instrument also provided certain amendment applied relation period time registration whether legislative instrument operated retrospectively whether commences in 12of thelegislation act 2003 cth meaning take effect whether applicant right time registration legislative instrument affected disadvantage within meaning ofs 12of thelegislation act 2003 cth statutory interpretation whether provision thecoronavirus economic response package payment benefit amendment rule 2 2020 cth ultra vires whether text context purpose thecoronavirus economic response package payment benefit act 2020 cth conferred authority make rule retrospective effectlegislation act interpretation act 1901 cth s 2b 3 8 c 48coronavirus economic response package payment benefit act 2020 cth 20income tax assessment act 1997 cth s 880 15 880 15 c 880 15 c ii 880 15 c iii legislation act 2003 cth chapter 2 s 12 12 1 12 1a 12 2 12 2 12 3 repealed taxation administration act 1953 cth 14zzcoronavirus economic response package payment benefit amendment rule 2 2020 cth 2 1 sch 1 item 46coronavirus economic response package payment benefit rule 2020 cth s 6 6 1 6 1 6 1 b 6 1 c 6 1 6 1 e 6 1 f 6 1 g 6 2 7 7 2 e 14 3 101interpretation act1987