Australian Paralegal Foundation

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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…
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A quiet Australia Policy - Brought to you by the Australian Government.  
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This case involved a mandatory cancellation of a 866 Protection Visa pursuant to s 501(3A).   Se…
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The term "cuckoo smurfing" is used to describe a certain type of #moneylaundering. Cuckoo refers to …
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Nicely found Jane Glover .  Yes on one perspective the original post here just examined the question…
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Mark McVeigh is taking on REST super on climate change and has the world watching

In July, a landmark trial will take place in a Sydney courtroom that could potentially change the way superannuation funds invest Australians' almost $3 trillion in retirement savings.

If the court agrees that REST has breached its fiduciary duties, it will not only change the way super funds invest people's retirement savings. 

Experts warn it could pave the way for further litigation.





 

'Revenue raising at its worst': Incredulous social media users slam $337 fine given to a driver whose PASSENGER was using a mobile phone

Offence : Drive Vehicle with TV-VDU image likely to distract 

'Tell your passengers to stay off their phones while you are driving, I got fined because my passenger was on FaceTime 

Drivers can be fined up to $344 and slapped with three demerit points for hanging air fresheners or fluffy dice from their rear-view mirror

Such items - also including air fresheners, flags, toys, and so on - are not strictly forbidden from cars but could attract a fine if police consider them obstructions.

Placing a GPS anywhere but the lower right or lower centre of the windscreen could also attract a fine for similar reasons. 

 

GOVERNMENT ADMITS FAILURES IN DECISION TO WAIVE ENVIRONMENTAL IMPACT ASSESMENT FOR ADANI

The federal government has conceded it erred by failing to consider public submissions when evaluating a plan by mining giant Adani to pump billions of litres of water from a river in drought-stricken Queensland.

The Australian Conservation Foundation (ACF) last year launched legal action challenging a decision made on behalf of former environment minister Melissa Price to waive a full environmental assessment for an Adani pipeline that will extract up to 12.5 billion litres of water a year from the Suttor River and feed it to the proposed Carmichael mine.

This tort of negligent misrepresentation is about when you go and see a professional for advice, where there is a duty of care owed to you and there is negligence when providing that advice that causes you financial loss.   

That would provide you a cause of action when the person makes a negligent statement or provides negligent advice which you rely upon 
to your financial detriment, the key is to show that a duty of care existed to prevent economic loss.

Indeterminacy of liability

It is important to understand the principle of ‘indeterminacy of liability’ which deals with determining whether duty of care exists as a policy consideration where if it were recognised in some cases it would impose indeterminate liability on the defendant. For example inaccurate information can be passed from one person to another and there is a risk that liability in negligence would expose the defendant to liability ‘in an indeterminate amount for an indeterminate time to an indeterminate class': Ultramares Corporation v Touche (1931) 255 NY 170, 179 (Cardozo J).

In short the extent of the liability must have its limits as least to the number, nature and size of the liability due to the negligence : Perre v Appand (1999) 198 CLR.  

You can imagine this scenario would apply to people who provide financial advice for instance and make statements about what they advice, they may not be able to control how far that advice is passed on with people relying upon it.   A clearer example may be an audit report of a companies accounts,  which may be used by a variety of groups and for a myriad of purposes including current and prospective shareholders, lenders, employee's, suppliers and customers.   This makes it difficult to determine precisely who will rely upon those reports and for what precise purpose, the liability may be indeterminate. 

‘Salient features’ that will determine the existence of a duty of care to prevent economic loss

To prove negligence in this case, you must prove that firstly it was reasonably foreseeable that you would suffer economic loss from relying on the representations, and its necessary to show that the relationship between the parties possessed certain ‘salient features’ that give rise to a duty of care.

 In this category of case, the ‘salient features’ that must be established are:

  1.  The defendant knew, or the circumstances must be such that the defendant should have known, that the recipient of the information or advice intends to act on that information or advice in connection with some matter of business or serious consequence; and
  2. It was reasonable in all the circumstances for the recipient to rely on that information or advice.

    In making the determination of whether it was reasonable in the circumstances to rely on the information and advice, the Courts will consider :

    a) The Nature of the Subject Matter : Was the information or advice on a serious topic? (1981) 140 CLR 245.
    b) The circumstances in which the advice was conveyed : (1981) 140 CLR 22.
    c) Whether the advice was requested or unsolicited? : (1986) 162 CLR 241.
    d) Whether the defendant is in the business of providing advice of that kind : (1968) 122 CLR 556.
    e) The relative capacity of the parties to obtain information : (1981) 140 CLR 22.
    f
    ) The vulnerability of the plaintiff : (2001) 206 CLR 1, (2014) 244 FCR 1.
    g) The effect of a disclaimer of liability clause : (1964) AC 465,  (2014) 244 FCR 1.  - Much will depend on the wording of the disclaimer and whether it negates the precise factual representation that has been made.  Essentially a defendant who is a professional in the business of giving advise to be relied upon can not avoid liability merely with a standard form disclaimer.

    Example 1 :  Where there was no duty of care.

    In Tepco Pty Ltd v Waterboard (2001) 206 CLR 1, Tepco wanted to obtain some land but was advised he needed to obtain the agreement of the waterboard to connect water to the land in order to rezone from rural to residential.   Tepco made a number of requests to the Waterboard about costs involved in connecting the water, the board eventually came back with an estimate of $2.5M to connect water. 

    The Bank of Tepco decided on the basis of the Waterboard's estimate that the project was not viable and withdrew finance.   Tepco later discovered that the cost of connecting the water was much less than the $2.5M estimated and sued the Waterboard, however High Court held that the Waterboard owed no duty of care to Tepco to provide an accurate estimate, because the board was not informed the precise purpose of the estimate (for the bank finance), secondly the estimate was made clear to be only provisional and ballpark implying its not to be relied upon and finally it was held Tepco was not vulnerable as they were receiving expert advice from land development consultants, who were just as competent to provide an expert of land costs. 

    Example 2 :  Where there was a duty of care.

    In ABN Amro Bank NV v Bathhurst Regional Council (2014) 224 FCR 1, Investment Bank ABN Amro developed a product which it intended to sell to local councils through an intermediary, called Local Government Financial Services (LGFS), they engaged a credit ratings agency Standard & Poor's to give the product a credit rating, for which they earned the highest AAA credit rating, that rating was negligent and misleading as S&P had not taken into account the volatility of the product and S&P later downgraded the rating to BBB+ and the product flopped in value by 75% (35% of their tax value).    ABN Amro, LGFS and the Council suffered loss when they cashed out of the investment following the GFC, they commenced proceedings against S&P for negligently misrepresenting that the products were a AAA investment. 

    S&P was held to be negligent and owed a duty of care to the parties despite the disclaimer S&P had on their rating of the product. 

When injustice becomes law, resistance becomes duty.

Armytage successfully appealed in Downing Centre Court on Tuesday, arguing there was inadequate signage warning drivers of the road works in the tunnel.

'It was very disappointing and cost me a lot of time, money and stress to appeal this RMS (Roads and Maritime Services) decision,' she told The Daily Telegraph. 

Armytage was able to continue driving while her appeal was active.

The Court was scathing of Leyonhjelm in this defamation case which saw Sarah Hanson -Young awarded $120,000 in damages plus interest plus costs.

Leyonhjelm's offer 'insulting'

Kieran Smark SC, for Senator Hanson-Young, told the court that Mr Leyonhjelm's offer was "an offer of nothing".

He described parts of Mr Leyonhjelm's settlement offer as "gratuitous, insulting and offensive".

"In the last sentence, he can be seen to take the opportunity, which was an opportunity to engage in settlement discussions, to insult [the senator]," he said.

"Those two words mean a tip or a gratuity so that seems to be offensive, so in other words, 'I'll give you a tip' as one might give a taxi driver.

"It's quite unusual to find personal attacks on the other side in the course of framing a settlement offer."

The tort of injurious falsehood is sort of like defamation against businesses or Corporations,  as you can not "defame" a Corporation and nor do they have a ready remedy in defamation if you do, it does not mean there is no common law remedey available to them against a person who does make malicious false statements against them. 

Most typically this tort is available when a business competitor makes false claims about the goods, services or business that is directed to the customers or would be customers of the business but this equally applied against individuals, say in online reviews or social media, where it causes damage to the business or causes customers to go elsewhere.

Elements of the Tort :

1. False Statement : The business has the onus of proof to prove that the statement was not true.

2. That the false Statement was published.

3. That the false statement was published with malicious intent or reckless indifference to the truth of the matter.

4. That the business suffered damages as a result 


Relevant Precendents : 

Business to Business :

Swimsure Laboratories Pty Ltd v McDonald [1979] 1 NSWLR 796.

Competitor Falsely Claimed it's products did not comply with Government Standards. 

Seafolly Pty Ltd v Madden [2012] FCA 1346.

Swinwear designer falsely accused a competitor of copying her swinwear designs. 
(Note all elements were proven except (4) That the business suffered an actual loss).

Customer to Business

The precedent in common law on this issue was set in Kaplan v Go Daddy Group [2005] NSWSC 636 [30]-[33].

In that case a disgruntled customer set up a web site hunterholdensucks.com with comments posted there making false statements against the business alleging fraud and over charging customers,  also the domain name itself was held to be an injurious falsehood from its implied meanings that the dealership was poorly managed and provided poor products and services. 

Regulatory Agency v Business 

Nyoni v Pharmacy Board of Australia (No.6) [2018] FCA 526.

As the statements made by the Board were false and caused economic damage to the business.

 

Map to the future: Australian Government releases a roadmap for developing AI capability in Australia

The global race to lead in AI is underway. The Commonwealth Government has recently contributed to the discussion with the release of Australia's AI Roadmap. It promotes strategies designed to advance Australia's AI capability and realise AI's potential for boosting industry productivity, creating jobs and economic growth, and improving the quality of life for Australians.

Key takeouts

Interest and investment in AI continues to grow in both the public and private sectors as technology advances and offers innovative solutions to challenging problems.

Australia's Artificial Intelligence Roadmap identifies 3 high potential areas of AI specialisation to maximise the economic, environmental and social benefits to Australia:

  • healthy ageing
  • cities and infrastructure
  • natural resources and environment.

The report signals that data governance and information privacy will be key areas to watch in the development of AI.

Read More : MinterEllison

The increasing prevalence of drone technology has resulted in a greater focus on how this technology ought to be regulated.  We’ve set out below a summary of what is currently happening in Australia and around the world. 

Drone Recap

Drone use in Australia is regulated under the Civil Aviation Safety Regulations 1998 (CASA Regulations). These Regulations are enforced by the Civil Aviation Safety Authority (CASA) and regulate the licensing and operation of drone use.  While the CASA Regulations regulate matters such as minimum distances from people and places, prohibited flight areas and time of day licensing, CASA does not have jurisdiction over noise issues (managing complaints about drone noise is currently the remit of Air Services).

Earlier this year, we wrote about Wing Aviation’s commercial drone delivery service following a trial undertaken in Canberra. The Canberra trial was met by complaints from local residents, largely concerned with the noise generated by the drones. These complaints led to inquiry by the ACT Government (the Standing Committee on Economic Development and Tourism) (the ACT Inquiry) whose recommendations included:

  • the Australian Information Privacy Commissioner work with the ACT Government in considering placing restrictions on commercial delivery drones on the collection of the personal information of non-users in order to address privacy concerns; and
  • the ACT Government proactively engage with the Commonwealth Department of Infrastructure, Transport, Cities and Regional Development (the Department), in the Department’s review of drone noise regulation, drawing on the experience of the ACT community in drone delivery trials.

Changes in Drone Regulation

Following the concerns of Canberra residents and the ACT Inquiry, the Department has:

  • re-examined the applicability of the Air Navigation (Aircraft Noise) Regulations 2018 (the Air Navigation Regulations) and concluded that a range of commercial and recreational drone operations within Australia require approvals under the Air Navigation Regulations (until recently the Department was of the view that the Air Navigation Regulations did not apply to drone operations).   Approval can be denied if the aircraft in question has had, and is likely to continue to have, a significant noise impact on the public; and
  • initiated a review of aircraft noise: Review of the Air Navigation (Aircraft Noise) Regulations 2018 – Remotely Piloted Aircraft. The review intends to consider the continued appropriate scope and breadth of drone noise regulation. The review will address a range of noise-related issues, including jurisdictional issues, the relevance of the existing Air Navigation Regulations and the role of Air Services, community acceptance, and state, territory and local government noise standards. Submissions for the Review closed on 22 November 2019.

In addition, the Civil Aviation Safety Amendment (Remotely Piloted Aircraft and Model Aircraft—Registration and Accreditation) Regulations 2019 introduced amendments to the CASA Regulations. The amendments, which are expected to fully come into force by mid-2020, introduce greater restrictions on drone use, including on licensing. The amendments impose the following restrictions:

  • people flying drones over 250 grams (or a drone of any weight for commercial purposes) must hold a remote pilot licence (RePL) (as before) and complete an online safety quiz to achieve accreditation. Accreditation must be renewed every 3 years;
  • all recreational drones over 250 grams and all commercial drones regardless of weight must be registered with CASA. Registration must be renewed every year;
  • a minimum age of 18 years for drone ownership (Individuals over 16 years can operate drones if supervised by a licensed drone operator over the age of 18); and
  • compliance with the new manual of standards incorporating regulatory guidelines on drone use.

Operating a drone without the required accreditation or an RePL will attract fines of up to $10,500.  Fines of up to $10,500 will also be applicable for a failure to comply with the requirement to register a drone.

Update on regulatory changes in other jurisdictions

The experiences in Australia parallel regulatory reforms occurring in other jurisdictions. Countries around the world are considering how best to regulate drones, given the rapidly evolving technology as well as the potential benefits it may bring. 

  • In the United Kingdom, the Science and Technology Committee of the House of Commons recently released a report entitled “Commercial and Recreational Drone Use in the UK”, calling for greater drone regulations, including registration, drone ID transmission and geofencing around sensitive locations.
  • The European Commission has adopted EU rules to apply to both professional operators and recreational users in EU member states, which replace member states’ national laws. As of 2020, drone operators will be required to register with national authorities. The common European rules on drones, published in June this year – Commission Delegated Regulation (EU) 2019/945 and Commission Implementing Regulation (EU) 2019/947 – are designed to replace the currently fragmented regulatory framework with coherent guidelines. Stakeholders will discuss the new rules and regulatory proposal at the High Level Conference on Drones taking place at Amsterdam Drone Week on 5-6 December. 
  • In Taiwan, the Unmanned Vehicles Technology Innovation Experimentation Act entered into force on 1 June 2019, and a new regulation for drone use under the latest amendment to the Civil Aviation Act will take effect on 31 March 2020. Under the new act, drone operators in Taiwan will need to register with and pass an exam conducted by the Civil Aeronautics Administration to obtain a licence to operate drones.
  • The South Korean government also recently unveiled a roadmap for regulatory reform to enable growth of the drone industry. The South Korean government has projected that drone operations will be fully autonomous by 2025, and that drones will be able to carry passengers and fly in heavily populated areas by this date. The government intends to develop a drone traffic control system and designate drone space that is different from that which currently applies for aircraft.
  • In Canada, Drone Delivery Canada Corporation recently announced that it entered into a commercial agreement with the Edmonton Regional Airports Authority, to establish the world's first airport drone delivery hub at Edmonton International Airport.

These kinds of regulatory reforms reflect an acceptance that commercial drone delivery will be with us in the near future, and the need to ensure appropriate controls are in place as this technology develops. While noise concerns have taken primacy in the Australian context, other concerns such as privacy still remain largely unaddressed. The regulatory contexts both locally and internationally are set to change in coming years and will be an interesting space to watch.

Source : GTLAW

The common law tort of deceit is committed where someone fraudulently makes a false representation that you rely upon which ultimately causes you loss.

The elements of the tort are:

  1. The defendant made a false representation to the plaintiff
  2. The defendant made the representation fraudulently (in a way that intends to deceive by doing something dishonest)
  3. The defendant intended the plaintiff to believe in and rely on the representation
  4. The plaintiff did act in reliance on the representation, and
  5. The plaintiff suffered damage.

    (Magill v Magill (2006) 226 CLR 551 [59], [114])




From  the 17th of December 2019, Australian citizens wanting to travel to Chile will need to apply for and have a consular tourist visa.

If visiting Chile you will need to request the visa from the Chilean consulate in Melbourne, Syndey or the A.C.T, prior to arrival in Chile.

The visa allows a maximum stay of 90 days.

Labor MP Julian Hill is pushing for a plan to get Australia to ditch the British monarchy and become a republic without a referendum.

The Labor backbencher for Bruce, Victoria, is proposing a plan to get state and federal MPs to vote to change royal succession laws.

Mr Hill claims the Australian public should not be responsible for changing the laws but rather it should be up to members of parliament.
If the proposal is accepted parliament could change the law which would see Queen Elizabeth be Australia's last ever monarch

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