Australian Paralegal Foundation

The Australian Paralegal Foundation is a registered Charity Organisation with the ACNC which fosters a better understanding of the law in the Community.   

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Beginners Guide to the Australian Paralegal Foundation Network 1.  Getting Started After you hav…
A quiet Australia Policy - Brought to you by the Australian Government.  
This case involved a mandatory cancellation of a 866 Protection Visa pursuant to s 501(3A).   Se…
The term "cuckoo smurfing" is used to describe a certain type of #moneylaundering. Cuckoo refers to …
Is subsection 5(1) of the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) invalid (in whole …
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  •  · Nicely found Jane Glover .  Yes on one perspective the original post here just examined the question…

The Premier's Declaration of a State of Emergency

 

Normally this wouldn’t get through ethic approval in Australia, but now this is acceptable under public health emergency laws? Is there legal any way of getting scrutiny of current decisions being made?

Peter Dutton pushes for overseas police to tap Australians’ phones

Proposed law would ease way for reciprocal police surveillance with Five Eyes partners, allowing Australian agencies to request data held abroad or seek interception such as wiretaps

My Employee Cannot Return to Australia Because of Coronavirus. What Can I Do?

Can I fire them and hire someone new?

If your employees are restricted from returning to Australia because of the current outbreak of coronavirus (COVID-19), your business may be affected. If your employee can only perform their role from Australia, you may face the challenge of filling their position in their absence. This article sets out how to manage employees who cannot return to Australia due to coronavirus and whether you can quarantine employees returning from overseas.

 

Australians will be 'detained' if they refuse to comply with COVID-19 measures

Attorney-General Christian Porter says the government will consider detaining people under the biosecurity act who refuse to comply with “absolutely necessary” measures amid the coronavirus outbreak.

NSW police treated millions in damages for misconduct as ‘cost of doing business’

Internal memos from former watchdog commissioner accuse police of systematic failure and misinformation

NSW Police aimed to conduct almost a quarter of a million personal searches last financial year as part of a quota-driven system slammed as a politically motivated "numbers game" by the state's ex-top prosecutor.


Figures revealed under freedom-of-information laws show individual police area commands are set targets for the execution of powers such as searches and move-on orders, as well as addressing an array of crimes, with people in some areas targeted for searches at nearly 13 times the average rate.

 

 

Honest Government Response to recent fires and climate change policy

High Court rules Aboriginal people can't be considered 'aliens'

The High Court has found two Aboriginal men facing deportation can't be considered 'aliens' under immigration law. Their lawyers say the decision protects Indigenous people from being deported.

Court finds dam operators liable for causing the Brisbane floods

The decision exposes the water authorities and the Queensland Government to the damages and costs of the group members, which may be quantified in the hundreds of millions of dollars. Once those losses are quantified and paid, it is likely to become the largest ever class action in Australia.

So in QLD they are advertising everywhere ‘no need to fear, corona virus risk is real low in QLD’ and then they just rushed through this shit show...you know how far reaching these powers are..there is a good reason they should apply every 7 days!

‘Emergency powers granted to Queensland's most senior health officer to try to contain the spread of coronavirus has been extended, with Parliament passing urgent amendments to the law on Thursday.

The changes mean chief health officer Dr Jeannette Young can be granted emergency powers for three months at a time, instead of having to have them renewed every seven days.’

Canterbury Bankstown Council successfully defended a claim by a plaintiff pedestrian who suffered a fall as a result of a crack which formed around a Telstra pit. The plaintiff was unable to establish the risk of harm was not insignificant, and the Court also explored the protections offered to roads authorities under section 45 of the Civil Liability Act 2002 (NSW) (‘CLA’).

In Issue

The key issues for determination by the Court were:

  1. whether the defendant Council breached its duty of care to the plaintiff by failing to repair a crack in the footpath; and

  2. even if negligence was established, did the protections offered by section 45 of the CLA apply?

The Background

On 27 February 2016, the plaintiff was walking on a footpath, accompanied by her son, when she tripped on a crack which had formed around a Telstra pit.

The plaintiff alleged the defendant Council owed her a duty of care to ensure the pit and its surroundings were maintained in such a matter as to not create a hazard for pedestrians walking in the area including the plaintiff.

The Decision at Trial

His Honour found in favour of the defendant, concluding that “the risk of harm was not only not significant, but insignificant”. That finding was based on the plaintiff’s evidence concerning the fall, the photograph of the crack and the distinct lack of expert evidence about the physical properties of the crack.

Notwithstanding the finding that the Council was not negligent, his Honour took the opportunity to review section 45 of the CLA, which provides special non-feasance protection for “roads authorities”, such as the Council. Section 45 provides that a roads authority cannot be found liable for harm arising out of a failure to carry out road works, or to consider carrying out road works, unless at the time of the alleged failure the roads authority had actual knowledge of the particular risk that materialised.

His Honour found that even if negligence had been established, the Council had no actual knowledge of the particular risk of harm, and therefore the immunity conferred by section 45 CLA applied. His Honour further held that even if the crack was a significant risk, the immunity would still apply, as section 45 CLA covers a failure to inspect.

Implications for you

The decision reinforces the protections that section 45 CLA offers roads authorities, including Councils, in claims that arise out of injuries sustained on public footpaths and roads..

El-Kak v Canterbury-Bankstown Council [2019] NSWDC 768


Source : Barry.Nilsson. Lawyers - Mitch King

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