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AISLES Australian Law Network provides a unique experience for members to have increased access to justice.

AISLES produces a daily digest of cases coming out of Australian Courts in all jurisdictions giving our members the ability to maintain or increase their knowledge of Australian Law in a social media style environment.

Lawyers, Mediators and other related professionals join to keep their fingers on the pulse of the Court and to get access to cases that have been digested for a quick read for lawyers and get to show case their skills and provide legal services to members.

Members with an interest in the law get to read the plain English summary to get a feel for whether they want to know more about the cases and have access to Lawyers, Mediators and other professionals providing services that they can interact with in a social media setting discretely using anonymous profiles or contact them directly with their real profiles.

AISLES specialises in increasing access to justice by providing specialised Alternative Dispute Resolution processes that include mediation and pre-trial mentoring programs that ensure you are fully prepared.

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Beginners Guide to the Australian Law Network 1.  Getting Started After you have created an acco…
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Just after views on this situation.Young person, now 19 accused of numerous crimes from 4 years prev…
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  •  · Grame Thompson Nothing unusual in any of this. Legal aid will refer if any conflicts.As it is also a…
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If a person obtains evidence improperly (ie stole it, logged in without authority to a person's acco…
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  •  · Grame Thompson Cameron McKenzie Note different States have different rules of evidence for State bas…
Hi all, currently this is a popular topic of conversation; No Jab No Pay (family tax entitlements)…
Can I ask if anyone has the answer to my question please. I rent a commercial property and the leas…
This question relates to Queensland.  Brief history: 2014 - Concerned family members applied thr…
Latest Posts (Gallery View)
Added a post 

The Doctrine of informed consent operates at common law within Australian Health law.

The Doctrine commenced with the seminal Schloendorff decision, where it was held the need for Informed Consent is a prerequisite to the Doctor-Patient Relationship.  Meaning if you have not provided informed consent to the medical practitioner for a procedure (including vaccinations) then there is no "Doctor-Patient" relationship that exists for that procedure. 

With Justice Cordozo stating “In the case at hand, the wrong complained of is not merely negligence. It is trespass….and a surgeon who performs an operation without his patient's consent, commits an assault, for which he is liable in damages.”

For further information on Informed Consent please read Contemporary Challenges regarding Informed Consent & Vaccination in Australia.

 

NOTHING IN THIS FORUM IS TO BE CONSTRUED AS LEGAL ADVICE, IT IS PURELY INFORMATION TO ASSIST YOUR UNDERSTANDING FOR EDUCATIONAL PURPOSES, IT IS A CONDITION OF ENTRY INTO THIS FORUM THAT IF YOU INTEND TO ACT UPON ANY INFORMATION YOU FIND IN THIS FORUM THAT YOU BRING IT TO A LAWYER AND SEEK INDEPENDENT LEGAL ADVICE.

COVID-19 vaccinations & the workplace

The Fair Work Ombusdman makes it clear that things are unclear.
 
That in itself creates sufficient uncertainty for employers to want to avoid taking action against employeees who do not wish to be vaccinated.

This is a very significant matter to be determined, and because it was heard in the UK, it will also apply to Australia as a precedent.

Many contractors do not realised that they fail the Personal Services legislation, that requires a true contractor to dervice more than 10% of their income from more than one source, and the Control Test, which most fail also.

This is a good outcome, as many so called contractors, such as myself being a finance broker, in accordance with this UK case, would be employees.

The real estate industry in WA has to pay their agents $300 per week base.

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Following the extension of the Commercial Tenancy Relief Scheme until 28 March 2021, the Victorian Government has launched the Commercial Landlord Hardship Fund Round 2.

Grants of up to $3000 per tenancy are available to eligible small landlords who reduce commercial rent for their tenants under the Commercial Tenancy Relief Scheme.

Full program guidelines and information on how to apply are available at Commercial Landlord Hardship Fund Round 2.

The Victorian Government offers other support for businesses, landlords and tenants. Details are available at Business Victoria COVID-19 business information.

Information on additional land tax relief for landlords can be found at  State Revenue Office Land Tax Relief.

Please share this message with your members and networks who might be interested.


Added a post 
If you are in Victoria and have a Commercial Lease and your business has been affected by COVID Lockdowns then you can apply for Rent Relief.
 
So long as you complete the Rent Relief Application you will receive a proportional reduction in your rent pro-rata to the reduction in your business turnover over the period demonstrated by BAS Statements or other accounting methods.

It is vital that this application for rent relief is completed and compliant with the legislative requirements and so long as you do that the landlord MUST : 
 
  1. Grant a reduction in the rent proportional to the decrease in turnover eg: Turnover dropped 70% means a 70% reduction in the rent.
  2. From that 70% Reduction in Rent 50% of it must be waived by the landlord altogether and the remaining 50% is on a deffered payment.
  3. The Victorian Small Business Commissioner is authorized by the Legislation to make a binding order on parties who do not participate in the process.
For more information visit the Victorian Small Business Commission website.
 
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Peniamina v The Queen [2020] HCA 47 (9 December 2020)

This case involves the appellant charged with murder by killing his wife. The appellant now questions the Court’s interpretation of S.304(3) of the Criminal Code.

Facts:

This appeal concerns the partial defense of provocation, which operates to reduce what would otherwise be murder to manslaughter, under S.304 of the Criminal Code. The contest between the parties in this Court is thus a contest as to the proper construction of S.304(3) of the Code.

S.304(3) of Criminal Code excluded defense of provocation in case of unlawful killing of accused's domestic partner where sudden provocation "based on" anything done, or believed to have been done, by deceased to end or change nature of relationship or indicate in any way that relationship may, should or will end or change.

The appellant argued that the majority in the Court of Appeal erred because the "sudden provocation" to which S.304(3) refers can be identified only by reference to the particular provocative conduct relied on by the accused for the purpose of raising the partial defense under S.304(1). Because the conduct of the deceased which the appellant identified as having caused the "sudden provocation" was the deceased brandishing a knife and then cutting the appellant's hand, S.304(3)(c) could not be engaged.

The respondent submitted that the language of S.304(1), which speaks of the act which caused death being "caused by  sudden provocation", stands in stark contrast with the language of S.304(3), which contemplates that "the sudden provocation is based on anything done by the deceased".

The respondent submitted that the difference in language reflected a legislative intention to exclude the availability of the partial defence of provocation where, upon the factual inferences available on the evidence, the circumstances referred to in sub-s (3) cannot be excluded by the accused as having contributed to the killing of the deceased.

Issue: Did the Court of Appeal err in interpreting S.304 of the Criminal Code?

Law:

  • Criminal Code S.304(1), (2), (3), (7).

Analysis:

In S.304(3)(c), the phrase "sudden provocation ... based on anything done by the deceased" refers not to the motivation of the victim that informs or explains his or her conduct toward the accused, but to the potency of the acts of the victim as a possible foundation of the temporary loss of self-control on the part of the accused.

The text of S.304(3)(c) allows of the possibility that the "anything done" by the deceased might have occurred a considerable time before the act of the accused so long as it is one of the motivating factors which the sudden provocation is "based on".

So understood, S.304(3) refers neither to the motivation of the deceased in provoking the accused, nor to the immediate trigger of the accused's loss of self-control, but rather to the potency of acts of the deceased as a basis or foundation of the accused's loss of self-control that excludes the application of S.304(1).

It has been noted that the trial judge's directions were erroneous insofar as they put to the jury the prosecution case that the brandishing of the knife by the deceased was itself an ending of, or change to the nature of, the domestic relationship between the appellant and the deceased. However, the only ground of appeal in this Court was whether the operation of S.304(3) is limited to the provocative conduct identified by the appellant as the cause of his loss of self-control. Special leave was not granted to agitate a complaint about the terms in which the trial judge directed the jury in relation to the prosecution case, and no attempt was made in this Court to expand the appellant's grounds of appeal in that regard.

Conclusion: Therefore, the court orders to allow the appeal, the appellant's conviction be set aside and a new trial be had.

Ms Teffaha, from Advocate Me, had submitted one of the children allegedly taken by the syndicate had been “let down” by the police and judiciary and the court was “enabling” his abuse.

“In my view Ms Teffaha … (those comments) may be prejudicial to or diminish the public confidence in the administration of justice,” Magistrate Gett said.

“There may be a breach of your fundamental duty as a solicitor practising in the state of Queensland.”

Chinese-Australian billionaire Chau Chak Wing has been awarded $590,000 in damages after his "fine, unblemished and unquestioned reputation" was besmirched in an ABC Four Corners program.

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Raina v CIC Allianz Insurance Limited [2021] NSWSC 13 (25 January 2021)

This case involves the plaintiff challenging the decision of a Motor Accidents Medical Assessment Service Review Panel alleging that he was denied procedural fairness due to the lack of medical literature provided to him.

Facts:

The plaintiff, Mr. Roshaan Raina, challenges the validity of the decision of a Motor Accidents Medical Assessment Service Review Panel (“Review Panel”) whose members are named jointly as the third defendant in these proceedings. The Review Panel was convened by the proper officer of the second defendant, the State Insurance Regulatory Authority of New South Wales (“SIRA”) under s.63(3)  Motor Accidents Compensation Act 1999 (“the Act”). Mr. Raina is the claimant for motor accident damages for injuries he suffered in a motor accident.

Counsel for the plaintiff argued that the Review Panel denied Mr. Raina procedural fairness. He submitted that the Review Panel considered 22 studies, of which only 2 had been referred to in the evidence placed before them. Counsel argued that the failure to put Mr Raina on notice of their intention to utilize the studies in informing their decision amounted to a denial of procedural fairness. Further, Counsel submitted that the Review Panel did not give Mr. Raina notice of the questions it had for him and so denied him the opportunity to respond. Mr. Robinson submitted that by operation of cl 16.16, 16.19.6 and 16.21 the panel has the power to request further information and the Review Panel failed to avail itself of this opportunity. Mr. Robinson further submitted that it was a requirement of cl 1.41 of the Guidelines that where there were inconsistencies between the medical assessor’s clinical findings and any medical records that the injured person must be given the opportunity to respond to the inconsistencies.

Counsel for the defendant submitted that the Review Panel did not deny Mr. Raina procedural fairness by referring to peer reviewed articles in making its assessment. He argued that it was unnecessary for the Review Panel to refer to the articles on which it relied but in demonstrating its process of reasoning it chose to outline and summarize the materials it relied upon. Further, Mr. Rewell argued that the material was not a “critical factor” in the Review Panel’s decision.

Issue: Was the plaintiff denied procedural fairness due to the lack of medical literature provided to the plaintiff?

Law:

Analysis:

A decision-maker must advise the person affected “of any adverse conclusion which would not obviously be open on the known material”. It is clear that the conclusions adverse to Mr. Raina, drawn from its review of the medical literature, was not drawn to his attention by the Review Panel. He was not asked to comment or allowed the opportunity to make further submissions.

While the court finds plaintiff’s argument that the contents of peer reviewed medical literature forms part and parcel of an expert’s special knowledge, which could be brought to bear in an expert assessment without express mention, the process adopted here was somewhat different. The Review Panel did not draw upon their accumulated medical knowledge including information derived from their ongoing professional development involving the reading of learned literature, just as a lawyer may enhance her or his knowledge by reading law reports. Rather, the members found it necessary to embark upon a specific, targeted review to resolve the issues they identified. Notwithstanding the other important adverse findings made, it cannot be gainsaid that that review was influential in their decision-making process. It may have informed other important findings of fact. The conclusions derived from their specific review should have been drawn to Mr. Raina’s attention for his comment and submissions. Even a court of ordinary jurisdiction may be under a similar obligation in regard to legal precedents not put before the court by the parties, but rather, representing the product of the judge’s own research.

The matter should be referred for reconsideration by a differently constituted Panel in accordance with these reasons. A different Panel should be convened because given the detailed consideration afforded the issues by the members of the previous Panel, it seems unlikely that they will be able to approach the matter entirely afresh.

Conclusion:

Court orders to set aside the medical assessment certificate issued by the third defendant and the two medical assessment certificates and to remit the matter to the second defendant for reference to a differently constituted review panel.

The Australian Government has developed a COVID-19 Vaccination Policy to guide the rollout of safe and effective vaccines across Australia.

This policy sets out the roles and responsibilities of the Australian Government and State and Territory Governments in implementing a COVID-19 vaccination program from early next year.

Should our promising vaccine candidates be found safe and effective, all Australians for which a vaccine is medically suitable will be able to be vaccinated for free.

Read more about the vaccination policy here: www.health.gov.au/n…/covid-19-vaccination-policy-endorsement

The drop in the cash rate today marks a period of medium term historically low interest rates.

With property prices plunging in almost all states, and rental yields at all time lows on the east coast, this may trigger another housing boom, as rates should now stay low for several years.

 

Reposted 4wards Consulting's post.

ASIC v Westpac in June 2020, on appeal in front of Justices Michael Lee, Jacqueline Gleeson and John Middleton, re:

Australian Securities and Investments Commission v
Westpac Banking Corporation (Liability Trial) [2019] FCA
1244

The case centred on Westpac's use of an automated process to approve hundreds of thousands of home loans, substituting would-be borrowers' actual living expenditure for a relatively low benchmark, the Household Expenditure Measure (HEM).

Reposted 4wards Consulting's post.

In the early 90's, I ran the "Fat Man in the Seat" case in the Western Australian Industrial Relations Commission, wherein the employee had been terminated because he had "allowed himself" to become heavier than the Safe Working Load of the seat in a front end loader, causing it to bottom out and hurt his back.

Whilst it didn't affect his compensation claim, the Commisioner upheld the dismissal because the employer had assisted every way possible to help this employee lose weight, and keep the weight off, yet he did not stick to the health program.

I was the AWU union advocate.

In the early 90's, I ran the "Fat Man in the Seat" case in the Western Australian Industrial Relations Commission, wherein the employee had been terminated because he had "allowed himself" to become heavier than the Safe Working Load of the seat in a front end loader, causing it to bottom out and hurt his back.

Whilst it didn't affect his compensation claim, the Commisioner upheld the dismissal because the employer had assisted every way possible to help this employee lose weight, and keep the weight off, yet he did not stick to the health program.

I was the AWU union advocate.

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