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I am currently in the process of building a new home.   Early on in the process I picked up in the …
Latest Posts (Gallery View)

WA Police has flagged possible legal action against a company which provided new-generation speed cameras that led to dozens of incorrect speeding fines while deployed on state roads.

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Section 18 of the ACL does not of itself prevent a competitor from copying the product of a rival.

A manufacturer does not contravene s 18 of the ACL merely by copying an existing product, provided that it does not represent that its product is the original.

No representation of this kind will be made provided the manufacturer has adopted an adequate branding strategy to identify the product as its own.

Thus, the mere copying of another’s product will not of itself mislead consumers, provided that the imitation product is sufficiently differentiated from the original through pricing, branding and branding positioning, promotional strategies and retail supply:


Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd
(1981) 149 CLR191;

Dr Martens Australia Pty Ltd v Rivers (Aust) Pty Ltd [2000] ATPR ¶41-734;

Moroccanoil Israel Ltd v Aldi Foods Pty Ltd [2017] FCA 823.

In fact there are businesses out there to help you get it right (and this is not an endorsement of that business, it just serves as example, I have never had contact with them nor examined their products in any way).


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Conduct that contravenes s.18 of the Australian Consumer Law's (which prohibit misleading and deceptive conduct) may give rise to a private proceeding commenced by individual consumers who are seeking an award of damages, compensation (s.236) and refunds (s.237).



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For instance you have a contract with FARM A to haul their organic tomatoes every year to market, but this year the neighboring farms pesticides affect the crop of FARM A and they lose their organic certification and therefore experience economic losses.

FARM A can sue in negligence but can the truck driver?

Indeterminacy of liability becomes the issue, meaning FARM B does not know what contracts FARM A has with whom and for how much for there to be a direct liability to the truck driver what is required is knowledge.   Perre v Appand (1999) 198 CLR 180.

If however the truck driver had put neighboring properties on notice that they had the contract with FARM A and perhaps offered their trucking services to neighboring properties on the basis of economies of scale (since you are in the area anyway) then even if FARM B did not accept your services they were aware of them and that you would be affected if they did something negligently that caused damage to FARM A.  Marsh v Baxter (2015) WASCA 169.





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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

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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.

 

 

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Honest Government Response to recent fires and climate change policy

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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.

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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.

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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.’

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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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Six farmers are preparing to take legal action against the state government, arguing a massive bushfire in northern NSW could have been prevented if more hazard reduction had been allowed.

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Indian miner Adani has been fined $20,000 after pleading guilty to giving the Queensland government false or misleading information about land clearing.

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CASE NOTE

Omega Plumbing Pty Ltd v Harbour Radio Pty Ltd t/as 2GB and 2GB 873

[2019] NSWSC 1576, ‘Omega

This case involved the tort of injurious falsehood with an application for an interlocutory injunction to prevent further publications pending the final hearing on the matter. The Defendants are 2GB radio and Ray Hadley their broadcaster who made a number of representations about the plaintiff’s plumbing business on his radio show and the issue is whether there was a prima facie case that those representations were made maliciously and/or with a reckless indifference to the truth or without belief in the truth of the allegations. With an absence of evidence to support the allegations made by the defendants a prima facie case was established with the balance of convenience test strongly favouring the plaintiff.

Facts


The plaintiff for the last 30 years has operated a service company primarily providing rapid response plumbing, electrical and air conditioning services in the Greater Sydney region employing over 80 staff1. The Defendants radio station and website (where they post articles and audio snippets) published materials over 4 consecutive days starting 29th of October 2019 based on consumer complaints, however fell into trouble when they added their own commentary and opinions which they could not support on the available evidence.

Issues and Arguments

In the tort of malicious falsehood and the question of whether to grant an interlocutory injunction, the plaintiff must establish that the defendants made a false statement about their business and that it was published maliciously.

The defendants made no submission on the question of falsity, however instead contested on the basis that there was no disclosed malice.

 


Therefore, much of the case was in relation to what constituted malice. It was argued that the defendants knowledge that what they said was false is ordinarily conclusive evidence of malice, the recklessness in the published comments amounted to wilful blindness on the part of the defendants which the law equates with knowledge, however the plaintiff needed to prove more than just that the defendant could not have had a positive belief in the truth of what they said the plaintiff needed to prove it was actuated by an improper motive for there to be malice (Omega at [15-17]).

To prove malice the intention of the defendants must be examined and whether there was a direct or indirect motive to cause injury to the plaintiff, however malice may exist without an actual intention to injure and must often be inferred from the “grossness and falsity of the assertions and the cavalier way in which they were expressed” and the knowledge of falsity is “almost conclusive evidence” that the defendant had some improper motive in publishing the material and that it actuated the publication (Omega at [18]).

 

In response to a letter of demand at [29], solicitors for the defendants asserted that the evidence did not disclose any prima facie case establishing malice. They rested on the argument that the material broadcast was substantially accurate and based on information obtained from several sources. Despite this they indicated a willingness to take down and not republish the broadcast and articles (Omega at [32]).

As the argument was about what constituted malice, the plaintiff argued that the broadcasts and publications went beyond merely publishing a news story but when words like “bloke who duds the elderly” and “charging them 10, 20 and 30 times more than a job's worth” were used it went beyond the facts and evinced malice. The plaintiff argued that many comments were made without basis or were knowingly false such as the statement that the plaintiff was not a member of the Master Plumbers Association, coupled with this was the extrapolation of a few complaints to assert general wrongdoing (Omega at [33]).

The Defence

The defence argued at [33] that revisiting the issue over a number of days did not evince malice as it was not with an intent to injure and that an enthusiastic belief in what is being published is insufficient to amount to malice, moreover they argued as the company was given opportunity to respond to allegations in such circumstances an inference of malice could not be drawn in contradistinction to situations where there was knowledge of falsity, wilful blindness, or even reckless indifference.

The defence continued at [34-37] arguing that making comments with evidence of complaints could not constitute malice nor was it reckless to assert there were problems with the company, even their expression of disgust in the company was not evidence of malice and they had no evidence to suggest the complaints were false to imply reckless indifference. They argued that their legitimate desire to stop the misfeasance by a company was not with a motive of ruining the company, but one of protecting consumers, they also argued against an injunction on the basis it would prevent them and other media outlets reporting on the outcome of the Fair Trading Investigation.

The Courts analysis at [40] commenced with the premise that the test on an interlocutory injunction is whether there is a prima facie an arguable case that the publications were made maliciously. The difficulty was that the plaintiff at this early pre-trial stage did not establish that the defendant published material they knew to be false, therefore with the case resting on the question of malice, it was insufficient for there to be just recklessness, it would need to be wilful blindness citing Gross (Omega at [52]).

The Court then considered at [41] that malice could be inferred, if, without evidence to support a positive belief in the truth, by the comments “grossness and falsity of the assertions and the cavalier way in which they were expressed” citing Joyce v Sengupta [1993] 1 All ER 897 at 905-6.

The Court then went on at [42-51] with 5 examples of malice it had identified, starting with the statement
“to the extent that the Master Plumbers Association give them a wide berth” in that it was false to imply that membership of the association was linked to ripping off customers and prima facie amounted to malice.


Secondly, the claim that the company went by a number of names was “done to dupe people”, there was no complaint or evidence to support that position and “in that sense the assertion that the various names were used by the plaintiff to dupe people was made without any belief in the truth of the statement”.



Thirdly the Court equated puffery with malice, where it found that despite one listener being quoted 10 times the price of another plumber, the statement that the public were dealing with a person “who duds the elderly and charges them 10, 20 and 30 times more than a jobs worth” was again unsupported by any belief in its truth or evidence, with the Court distinguishing a quote (which was not accepted) from being actually invoiced an amount.



Fourthly the allegation that the company was targeting “affluent immigration communities” and “immigrant families in wealthy areas who don’t have English as their first language” along with targeting elderly was not supported by any evidence to the point that there was no evidence to even consider where such a claim originated.

Fifthly claims of deposits being paid twice and statements that the plaintiff to give disgruntled customers all their money back “because you did bloody nothing” were again unsupported by any evidence to suggest that the company had taken money and did nothing and that “they were thieves”. Without evidence to support those statements it was held they were made without a positive belief in their truth and absent that positive belief it would be malice, relying on Brereton J in AMI at [32]:

Malice may be inferred from the “grossness and falsity of the assertions and the cavalier way in which they were expressed”.

HELD:

The specific portions of the broadcast transcripts the Court highlighted became the foundation for the determination of malice due to being unsupported by facts and ipso facto an injurious falsehood.


On the question of an injunction the Court applied the “balance of convenience” test holding that free speech is outweighed in cases of injurious falsehood where there is no dispute concerning the prima facie case on falsity, and where it is found a prima facie case exists in relation to malice, the balance of convenience strongly favours the plaintiff, with the Court deciding to frame the injunction in a way that would allow publication of findings by Fair Trading.

In conclusion, had the radio station stuck with the facts that their listeners were alleging and resisted the urge to ad-lib with commentary, commentary that they could not substantiate or support with the facts, they might not be facing this situation as the case rested on the issue of malice, malice that was inferred due to the shock-jock style radio broadcasts that the station is known for that sensationalise events with grossness and falsity in a cavalier way to bring in the ratings.



1 Omega Plumbing Pty Ltd v Harbour Radio Pty Ltd t/as 2GB and 2GB 873

[2019] NSWSC 1576, ‘Omega’, 2.

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In what would later be described by the full bench of the Family Court as an "affront to justice", a man was sentenced to twelve months jail after walking into a property settlement hearing.

Will, whose name cannot be used for legal reasons, was unable to provide all the documents he had been ordered to produce and was sentenced for contempt of court.

He had no criminal history, but the judge told Will during the hearing he hoped "he brought his toothbrush."

Only three days into his sentence at the Brisbane watch house, Will began to think he wouldn't survive behind bars.

"It is the worst possible place on earth," he told Background Briefing.

"Being fed through a hatch with my room-mate who is an ice and heroin addict, who was s---ing and vomiting and we have no toilet paper and realising that there's no way I'm getting out."

Will said on that third night he reached the point where he considered ending his life. He decided against it when he heard a distant radio playing George Ezra's Shotgun, which was his daughter's favourite song.

After seven days in custody, including three nights in maximum security prison, Will's conviction was overturned.

His conviction was "a gross miscarriage of justice", according to the full bench of the Family Court.

The court found the judge in Will's case took on the role of prosecutor, prejudged Will's case and decided from the outset Will would be going to jail.

That judge, Salvatore Vasta, has had a string of cases overturned on the grounds of procedural fairness.

For the first time, three people who were on the end of Judge Vasta's decisions have spoken to Background Briefing about their experience.

Who is Judge Salvatore Vasta?

As a prosecutor Mr Vasta carved a reputation for himself by putting some of Queensland's worst criminals behind bars.

Appointed as a judge of the Federal Circuit Court by then-Attorney General George Brandis QC in 2015, the Law Council of Australia has officially complained about his inappropriate behaviour in a number of cases in recent years.

Nine of Judge Vasta's decisions were heavily criticised by appeal court judges before being overturned on appeal between May 2018 and December 2019.

Their findings about Judge Vasta ranged from him making gross errors in law, to denying procedural fairness and intimidating people who come to court without a lawyer.

The former President of the Law Council of Australia, Arthur Moses SC, has written to Chief Judge William Alstergen about Judge Vasta's conduct which has been criticised by appeal courts, including intimidating some unrepresented litigants.

"The conduct of Judge Vasta here — and I'll be plain about it — were examples of bullying behaviour in a courtroom," he said.

"I certainly think the conduct that has been engaged in by the judge is conduct that would constitute misconduct by the judicial officer."

In response to the Law Council's concerns Chief Judge Alstergren announced that Judge Vasta would receive mentoring.

How do you end up in jail over a property settlement case?

Will is planning to sue Judge Vasta for compensation over the decision to jail him in 2018, according to his lawyer Lisa Flynn from Shine Lawyers.

Lawsuits against judges are extremely rare, the doctrine of judicial immunity usually prevents civil action against judges.

Ms Flynn said they will need to prove exceptional circumstances, "showing that Judge Vasta was acting outside of his jurisdiction when he made the order to imprison our client."

When Will attended court to settle a property dispute with his ex-wife in December 2018, Will was relatively at ease.

"I just had faith in the legal system that I could go through this process and at the end of the day the referee would decide what was fair. And I was happy with that," he said.

Will had been ordered to bring documents to court to show what he owns, how much he earns, and what companies he had investments in, so the court could decide how to divide the assets equally.

But he said he couldn't access some of the documents in time, as they were held by third parties.

Judge Vasta sentenced him to 12 months for contempt of court.

The full bench of the Family Court overturned the sentence on appeal.

"It is difficult to envisage a more profound or disturbing example of pre-judgement and denial of procedural fairness," the court said.

Dispute over a scholarship application leads to sentence

Another case involved single working mother Sam, whose real name cannot be used for legal reasons, who Judge Vasta convicted of contempt of court for going against parenting orders by allowing her son to audition for a music scholarship at a school.

Sam's ex-husband told the court he believed the scholarship application was a breach of their parenting agreement, but she insisted the application was not a breach and she was only trying to provide opportunities for the child.

During the hearing, Judge Vasta told Sam her arguments were "pure rubbish" and the application to enrol her son was "an act of spite by [Sam] to the father".

Judge Vasta sentenced Sam to seven days in jail, wholly suspended for two years.

Sam told Background Briefing the experience had made her doubt the integrity of our justice system.

"I said to my children that if you don't do anything wrong, you've got nothing to fear. I don't actually believe that anymore," she said.

The conviction was later overturned by the full Family Court, with the three appeal judges agreeing Sam never contravened court orders and that she was, in fact, acting in the best interests of her children.

The judges also said that Judge Vasta made substantial errors in law, reasons for his judgement were plainly inadequate and the sentencing was entirely arbitrary. They criticised his, at times, intimidating manner and disparaging comment he made about Sam.

Federal Circuit Court appearance in a case against Fair Work Ombudsman leads to jail

Cairns tour operator Leigh Jorgensen was convicted of contempt of court and sentenced to ten days in jail, after being found to have breached a freezing order on his companies' bank accounts.

"You're scared right, you're very vulnerable," he said.

"I guess I was petrified."

Mr Jorgensen spent two days in jail, then managed to get out until his appeal could be heard but he had to surrender his passport and check in with Cairns police twice a week until his appeal was concluded.

In July 2019, the Federal Court overturned the conviction, saying Judge Vasta was frequently critical, dismissive, disparaging or sarcastic towards Mr Jorgensen during the hearing.

The full bench also remarked that Mr Jorgensen's behaviour before Judge Vasta was not impressive, saying that he appeared evasive at times, or unwilling to answer questions clearly.

It said that Judge Vasta's excessive interventions were "an egregious departure from the role of judge."


In a statement, a spokeswoman from the Federal Circuit Court said Judge Vasta has had an "extremely heavy workload" since his appointment in 2015.

"His Honour has delivered 1306 judgments," it said.

Judge Vasta is currently receiving mentoring from a retired judge to assist and support him to fulfil his duties.

He declined to comment on this story when contacted by the ABC.

Who watches the judges?

While he was president of the Law Council, Mr Moses questioned whether workload is an acceptable reason for judges providing a lack of procedural fairness or engaging in inappropriate conduct.

"It may be an explanation but then raises the question, is that person somebody who is incapable of holding office because they're unable to deal with the stress of the job? So is it an incapacity issue?" Mr Moses said.

To maintain the independence of the judiciary, judges in Australia can't be sanctioned and removing a judge from office usually takes an act of Parliament.

The only Australian judge since federation to be removed in this way is Angelo Vasta, Salvatore Vasta's father. His removal was unrelated to his judicial work.

Mr Moses stopped short of saying Judge Vasta's behaviour warrants removal from office, but believes judges need to be held to a higher standard.

He has called for an overhaul of judicial oversight generally, including the introduction of a federal judicial commission.

An independent body with powers to investigate complaints against judges, according to Mr Moses, should also be able to impose sanctions when necessary.

"And when that occurs, then there should be the ability to investigate these matters carefully and independently."

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Canberra has become the first city in Australia to legalise cannabis for personal use. 

Canberrans over 18 will be allowed to possess 50g of cannabis and grow two plants. 

A household can only have four plants total and hydroponic growing will remain illegal, The ABC reported

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Hi, a friend of mine, her son has been in jail for a year, he has recently got out and said he was coming home. This was over 3 weeks ago. The phone has been disconnected and she has had no contact. 

He was in jail in Melbourne and she is in Central QLD. We are sourcing information and/or assistance on how to find him. 

 

Thank you 

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Tax authorities in five countries on Thursday staged an unprecedented “day of action” against a multinational financial institution that included raids, demands for information and warning letters to clients.

  • Comment
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  • Yes, it 'looks' good doesn't it, it actually gives the impression that the wealthy will finally be held to account, for their selfish tax-evading ways.

    However my cynical mind cannot help but wonder, if the 1% and Billionaire class actually dont mind the sacrifice of some of their lessor up-n-coming rivals.

    To give the restless and increasingly resentful masses the *illusion* that all of the rich can and are, finally, being held to account ...and to distract and even stave off, the rising rebellions.

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    • It is estimated that company tax as a percentage of total tax revenue will fall steadily from a peak of 19.6 per cent in 2019–20 to 18.3 per cent in 2022–23. The company tax projections have factored in an increase in company tax collections due to extending the Australian Taxation Office’s (ATO) Tax Avoidance Taskforce, with most of this flowing through in 2021–22 and 2022–23. However, this is expected to be offset due to several liquefied natural gas (LNG) companies having accumulated tax losses.

      Revenue Budget Review 2019–20 Index

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      Not logged in users can't 'Comments Post'.

      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.

      • Comment
      • Like
      • 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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        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.





         

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        '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. 

         

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        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.

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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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