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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This case involved a mandatory cancellation of a 866 Protection Visa pursuant to s 501(3A).   Se…
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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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A grandmother who has lived in Australia for 12 years is facing deportation to India after being denied a visa and told she would be a financial burden on the health system.

A 98-year-old woman who has called Australia home for the past 12 years has been threatened with deportation to India, a country where she has no one that she can call her own.

Originally from the western Indian state of Goa, Esmeralda Rosario arrived in Australia on a tourist visa in 2007.  She received an indefinite bridging visa a year later after her family applied for her aged-parent visa.

But their 12-year-long wait ended in a disappointment in November 2019, when Ms Rosario’s visa application was refused on grounds that her care would “result in a significant cost to the Australian community,” The Daily Telegraph reported.

The "heartbroken" family has filed an appeal before the Administrative Appeals Tribunal seeking reversal of the decision. The first hearing was scheduled for Tuesday.

SBS Punjabi contacted Ms Rosario's granddaughter-in-law Samantha D' Silva after the hearing, but she declined to comment.

The family members have set-up an online petition on Change.org in the hope of gathering support for Ms Rosario, which has amassed nearly a thousand signatures.

“My Grandmother has been denied residence after waiting for 12 years, at 99 years of age. 

“She has been denied residence based on her age, and is now at risk of being deported back, where she will have to live the rest of her days without her loved ones by her side,” the petition reads.

The mother of two and a grandmother of four gets a $50,990 worth annual home care package under the government’s MyAgedCare program. The funding allows her family to provide for at-home care from a nurse thrice in a week for their wheelchair-bound grandmother.

Ms D’ Silva who is tirelessly working along with the rest of the family on pathways for Ms Rosario to remain in Australia wrote in the petition that “Nana has touched my heart is with her love for her family.

“From the day I met her, I was always included in her prayers. Now is our turn to pray for Nana,” she added.

 

Ms Rosario is among thousands of applicants waiting for a permanent parent visa- a limbo that can last up to 30 years due to long queues and capping.

Migration agent Nitin Garg said, “The pathway has the right intention but is completely ineffective.”

“Elderly people who have applied for this visa have to wait for a staggering 30 years or perhaps more for their visa grants. And there are only 1,500 spots available,” said Mr Garg.

He added that besides the long waiting period, the fact that applicants have to pass a mandatory health check both at the time of filing the visa and the grant is an even “bigger hurdle.”

“If a 70-year-old applicant is asked to undergo a medical examination 20 years after the application was lodged. Do you think at the age of 90, they'd be able to pass the compulsory test? I believe not.

“So after spending 20 years of his old age in uncertainty when he’d most likely fail the health test, he’d be threatened with deportation. So what is it, if not a broken system?” said Mr Garg.



Source : Article Title : 98-year-old grandmother faces deportation to India after living in Australia for 12 years, BY AVNEET ARORA published on sbs news.

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  • You can stay until your health deteriorates and you become a burden to society is the position of the Australian Government.

    Bridging Visa's for this category are seen as indefinite as there is a 30 year wait for the Visa approval and not only do you need a Medical when you apply for the Visa (which being an aged parent visa you would be already getting on in years when you applied) so imagine at the age of 60 you get a medical and apply and you are all good to go...... tick tock tick tock 15 years later when you are 75 you develop a medical problem and now with the Government linking your medical data (data retention and analysis that things like Robo Debt run on) and apply it to anyone with a bridging visa.

    On the otherhand, you have been able to bring a parent over on a tourist visa, apply for the aged visa on-shore and be happy to sit and wait on the briding visa indefinitely.

    What would an Imigration Agent do?

    Firstly the case will be appealed to the Department and then the Minister. This process will take some time and you would be appealing on compassionate grounds.

    With the current mood of the government, one would speculate that there was no compassion to be found or they would have found it on their own without need to be reminded that you were about to deport a 92 year old grandmother to go home and die alone.

    Next the matter would be appealed to the Administrative Appeals Tribunal and you would fight it all the way to the High Court if necessary and the time that it would take to do that would give you a valuable few more years together a family.

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    "Having now reviewed my diary, I note that I was involved in 14 meetings with Ms Nixon

    regarding Purana Task Force matters and I believe that I did,

    in fact..inform her of Ms Gobbo's registration as a Human Source know  as 3838 in 2005," he said.

    Meanwhile Ms Nixon (former police chief) claimed in her own evidence that the first she knew of Ms Gobbo was when she was publicly identified when the news broke! The Current Police chief makes conflicting statements that Ms Nixon knew of Ms Gobbo's registration
    as a human source soon after he learned of it himself.

     
     

    It's not clear if Ms Nixon will be recalled to respond to the claims, however Overland denied any "self-serving secrecy" stating that :

    "Any suggestion that my conduct at Victoria Police ... was corrupt, perverted the course of justice,
    was dishonest or facilitated any dishonesty in the court system,
    or sought to cover up the use of Ms Gobbo is completely denied by me
    and does not accord with my conduct as reflected in my contemporaneous diary notes,".

    With such an emphatic statement by Victoria Police Chief are you as convinced now as when he was that the diaries didn't exist?







    Footnotes

    This article was inspired by the one posted in AAP titled "Nixon knew of Lawyer X in 2005: Overland" by 
    Karen Sweeney published on the 21.01.2020.


     

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    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. 

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