Posts of AISLES NEWS RSSTue, 23 Aug 2022 16:31:31 GMT Google LLC v Defteros [2022] HCA 27 (17 August 2022) The appellant operated an internet search engine where if one inputs the respondent's name into the search engine would result in a hyperlink to an article published on the newspaper's website containing a matter defamatory to the respondent. The parties disputed whether providing Search Result amounted to an act of participation in communication of defamatory matter to the third party. Facts: The respondent, George Defteros, is a solicitor who has practised criminal law for many years. He has acted for persons who became well-known during Melbourne's "gangland wars", including Dominic ("Mick") Gatto and Mario Condello. In 2004, the respondent and Mr Condello were charged with conspiracy to murder and incitement to murder Carl Williams and others and were committed to stand trial. In 2005, the Director of Public Prosecutions withdrew the charges against the respondent.  In the intervening period, the prosecution of the respondent and Mr Condello was widely reported, including in The Age newspaper, and articles were placed on that newspaper's website. The appellant, Google LLC, makes available to those seeking to navigate information on the World Wide Web its search engine. In early 2016, the respondent became aware that an internet search of his name using the Google search engine produced search results which included a snippet of an article published by The Age in 2004, on the day after the respondent was charged. This was termed the "Search Result" in the proceedings below.  The title of the article, displayed in the Search Result, contained a hyperlink to the full article on The Age's website. The article was entitled "Underworld loses valued friend at court". In the proceedings below it was referred to as the "Underworld article". Together, the Search Result and the Underworld article were said to comprise the "Web Matter" which the respondent claimed defamed him. The respondent claimed damages fo... Read more

]]>Tue, 23 Aug 2022 16:31:31 GMT R v Al-Anwiya [2022] VSC 428 (29 July 2022) Mr Al-Anwiya was charged with dangerous driving causing death, failing to stop after a motor vehicle accident and failing to render assistance after a motor vehicle accident. He entered a guilty plea. The Court, in determining his sentence, assessed whether the accused has impaired mental functioning that would result in him being subject to substantially and materially greater than the ordinary burden or risks of imprisonment. Facts: On the morning of Sunday 25 October, 2020 at approximately 11:15 am, Mr Al-Anwiya was driving his silver Nissan sedan along Silvester Parade in Roxburgh Park. He was aged 20 and a holder of a probationary driver’s licence. The applicable speed limit was 50 kilometres per hour. The weather was fine and the road surface was dry. The victim in this matter, Mr Hermez, was 73 years old and lived in Roxburgh Park.  It is believed that he was walking from his home to the local shops when the fatal collision occurred. The section of Silvester Parade where the collision occurred was a sweeping, uphill curve to the left. He was travelling in an easterly direction.  McPherson Boulevard, which meets Silvester Parade at a T-intersection, was on his right-hand side. On the south side of Silvester Parade, that was, on his left-hand side, is a footpath which runs alongside the road until just west of McPherson Boulevard.  At this point, the footpath turns right and ends at the road’s edge.  There is no pedestrian crossing, lights, speed control devices or signage of any type. Mr Hermez was attempting to cross Silvester Parade at this point when he was struck by the front right-hand side of Mr Al-Anwiya's vehicle.  Mr Al-Anwiya immediately left the scene, quickly and without stopping. He did not attempt to render any assistance to Mr Hermez.  Other motorists did stop and assist the victim, and police and an ambulance were called. Tragically, Mr Hermez died at the scene. Mr Al-Anwiya was arrested... Read more

]]>Fri, 05 Aug 2022 04:16:20 GMT Re PM [2022] VSC 421 (29 July 2022) The applicant is a 13-year-old child charged with murder. He applied to the court for bail. The Court, in determining whether bail should be granted assessed if there are exceptional circumstances in his case.  Facts: PM (‘the applicant’) has applied for bail. He is 13 years of age and has been charged with murder. He is currently being detained in a youth justice centre, having been arrested and remanded on 23 March 2022. The prosecution alleges that the applicant associates with one group of youths and Declan Cutler (‘the deceased’) a different group.  There has been friction between the two groups resulting in some violence and threats. In the context of that hostility, in the early hours of the morning on 13 March 2022, the deceased, who was then 16 years old, was set upon by a group of eight youths, including the applicant, in a residential street in Reservoir, where he was violently killed during a frenzied attack involving multiple weapons. Seven young people, aged between 13 and 17, have been arrested for murder and remanded in custody. The applicant, at 13 years old, is the youngest of them. Police investigators have traced the movements of both the applicant and the deceased in the lead-up to the fatal attack. The deceased and his friends were at a party in Reservoir. They believed that one or more of the accused were coming to the party and they decided to leave. They armed themselves with kitchen knives before they left. The eight assailants arrived near the house in a stolen car. They came across the deceased who had become separated from his friends and attacked him. The fatal assault is captured on CCTV footage. Although taken in the dark of early morning, the footage is clear and chilling.   The deceased is stabbed, kicked and stomped on. The applicant can be clearly seen in the footage. He is unarmed but an active participant in the attack. Issue: Whether or not the applicant should be granted bai... Read more

]]>Thu, 04 Aug 2022 14:21:27 GMT Kontis & Anor v Coroners Court of Victoria [2022] VSC 422 (1 August 2022) 50 residents of St Basil’s Home for the Aged (‘St Basil’s’) died. The plaintiffs were each served with a summons requiring that they give evidence at the inquest. The Court in determining supposed orders for objections made to give evidence on ‘reasonable grounds', relied upon the Coroners Act 2008 (Vic).  Facts: In July and August 2020, 50 residents of St Basil’s Home for the Aged (‘St Basil’s’) died. Forty-five of those deaths occurred as a consequence of COVID-19. The plaintiffs were, respectively (a) the Chairman of the Board; and (b) the Facility Manager and Director of Nursing. On 12 August 2020, the State Coroner issued notices to the plaintiffs under s 42 of Coroners Act 2008 (Vic) (‘the Act’) requiring that each prepare a statement. They each declined. On 21 October 2020, WorkSafe Victoria (‘WorkSafe’) issued a notice to St Basil’s under s 9 of the Occupational Health and Safety Act 2004 (Vic) (‘OHS Act’). Among other things, St Basil’s produced documents in answer to the notice.The plaintiffs, however, claimed a right to silence.The plaintiffs have claimed a right to silence in respect of every approach made with a view to obtaining their account of relevant events. The State Coroner held directions hearing in the coronial inquest on 18 August 2021. By that time, various persons had sought and been granted leave to appear as an ‘interested party’, including (a) St Basil’s; (b) the Department of Health, Victoria; (c) the Commonwealth Department of Health; (d) WorkSafe; and (e) certain family members of the deceased. His Honour noted that the families were ‘looking for an explanation and an understanding of what happened and why and that he was ‘focused on that prevention opportunity that may exist.   Senior counsel recommended that the plaintiffs be summoned to give evidence at the hearing of the inquest. Senior counsel assisting emphasised that ‘the circumstances of t... Read more

]]>Wed, 03 Aug 2022 12:52:35 GMT Jovan Jovcic and Filip Markovic v Coopers Brewery Limited [2022] FWC 1931 (22 July 2022) The applicants were dismissed by the respondent for noncompliance with the company’s COVID-19 vaccination policy. The applicants contend that the directions are unreasonable. The Court, in resolving this dispute, assessed whether the policy was reasonable.  Facts: The applicants were dismissed from their employment with Coopers Brewery Limited (Coopers) on 21 January 2022 on the grounds that they had failed to comply with the company’s COVID-19 vaccination policy (policy), which required employees to be vaccinated against COVID-19 as a condition of entry to the workplace. The applicants submit that Coopers did not have a valid reason to dismiss them because its direction that they comply with the policy was not reasonable. They contend that the policy did not serve its stated purpose because, contrary to the advice of the Australian Technical Advisory Group on Immunisation (ATAGI), on which Coopers relied in deciding to implement its policy, COVID-19 vaccinations do not prevent the transmission of the virus. In this regard, they rely on the expert evidence of Dr. Nikolai Petrovsky.  The applicants further contend that the direction to comply with the policy was unreasonable because they had objected to becoming vaccinated based on their Serbian Orthodox religious beliefs, and that it was unreasonable of Coopers not to grant them an exemption.  The applicants contend that in all the circumstances their dismissals were unfair. They seek reinstatement. Coopers contends that the applicants failed to follow a lawful and reasonable direction to comply with the policy, which constituted a breach of their contracts of employment and a valid reason for dismissal. It contends that the requirement to comply with the policy was reasonable because the policy was directed at protecting the workplace health and safety of its employees and reducing threats to business continuity. I... Read more

]]>Mon, 25 Jul 2022 16:55:17 GMT Darryl Kubica v InvoCare Australia Pty Ltd [2022] FWC 1439 (21 July 2022) Employee filed an application for relief from unfair dismissal. The Employer enforced a lawful and reasonable direction requiring vaccination against COVID. The Court, in determining whether the application should be granted, assessed if the dismissal was “harsh, unjust or unreasonable."  Facts: The Applicant commenced employment with the Respondent on 21 March 2005. The Applicant was employed as a Grade 3 worker under the Invocare Australia Pty Limited NSW Funerals Industry Enterprise Agreement 2019 (enterprise agreement). The Respondent operates in the funeral industry. As of 7 October 2021 a NSW Public Health Order was released that required that all client facing employees in the funeral industry... be fully vaccinated.” On 28 October 2021, Mr. Shane Lincoln, Regional Manager Operations of the Respondent, wrote to the Applicant (referring to a previous discussion) and stated that in accordance with an NSW state directive, the Respondent employer requires “that all staff are fully vaccinated to attend any size of funeral.” Mr. Lincoln further noted that if an employee is “not able to provide evidence to [the Respondent] of their status (or you do not otherwise meet the COVID-19 vaccination requirements imposed by the Chief Health Officer), we will have no choice but to refuse you entry to our sites. Where that occurs and there are no reasonable alternative arrangements available, we may, unfortunately, have to explore alternatives of leave or review your ongoing employment with Invocare.”  Ms. Bayliss advised the Applicant that leave options may be available to him and acknowledged that the Applicant had extended his annual leave until 26 November 2021. The Applicant was also advised that the Respondent intended to introduce a Covid-19 Policy which would take effect on 27 January 2022. The Applicant was informed that if he chose not to have one vaccination dose by 6 December 2021... Read more

]]>Mon, 25 Jul 2022 16:41:33 GMT Kylie Anne Hehea v Swanfurn Pty Limited [2022] FWC 1338 (18 July 2022) The applicant filed for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal. The Respondent raised a jurisdictional objection to the application on the ground that the Applicant had not been ‘dismissed’. The Court, in resolving this dispute, relied upon the Fair Work Act 2009 (the Act).  Facts: On 9 December 2021, Kylie Anne Hehea (Applicant) applied under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal. On 19 January 2022, Swanfurn Pty Ltd (Respondent) filed its F8A Response to the general protections application, raising a jurisdictional objection to the application on the ground that the Applicant had not been ‘dismissed’ as is contemplated in s.365(a) of the Act. In particular, the Respondent states that the Applicant resigned from her employment on 14 November 2021 and that she did so by a written letter given on that date, which expressed her last day of work to be 26 November 2021. The Respondent is a company whose business consists of an independently owned and operated furniture and bedding retailer. As part of its franchise relationship, the Respondent may report matters to its franchisor from time to time, including workplace issues.  Yoogalu Pty Ltd (Yoogalu) is the franchisor’s appointed representative for those purposes.  There was some confusion in the Applicant’s written material as to who her employer was.  Notwithstanding the Respondent’s association with the wider Harvey Norman business, it was a separate legal entity operating the business. The Applicant was employed by the Respondent, initially as a casual salesperson in around July 2018 at the Respondent’s business in the Harvey Norman Swan Hill complex. In December 2018, she became a permanent part-time employee. In 2020, the Respondent employed another salesperson, M... Read more

]]>Sun, 24 Jul 2022 09:09:04 GMT Re Life Springs Pty Ltd [2022] VSC 406 (19 July 2022) The parties entered into a Building Contract. The plaintiff was served by the defendant a demand for claim arising out of a construction project. The Court, in making its orders, assessed whether the demand should be set aside as sought by the plaintiff.  Facts: By originating process filed 27 July 2021, the plaintiff, Life Springs Pty Ltd (ACN 164 473 670) (‘Life Springs’) applies to set aside a statutory demand dated 7 July 2021 (‘Demand’) served upon it by the defendant, iDevelopment Group Pty Ltd (ACN 134 745 716) (‘iDevelopment’).  iDevelopment claims that $351,358.17 is owing to it by Life Springs. The schedule to the Demand describes the debt being claimed as follows: Amount owing by the company to the creditor in respect of the HIA Medium Works Commercial Contract dated 28 October 2020 relating to 24 McLean Street, West Brunswick (as particularised in the Letter of Demand forwarded by the creditor to the company dated 26 March 2021 and as further demanded in the letter dated 4 June 2021 to the company from WMB Lawyers). The Demand was accompanied by an affidavit of Maurice Randello (‘Mr. Randello’), a director of iDevelopment, sworn 7 July 2021, and both those documents were attached to the originating process. The Demand exhibits two letters of demand dated 26 March 2021 and 4 June 2021 referred to in the schedule to the Demand (‘Schedule’) together with a statement on iDevelopment’s stationery dated 26 March 2021 which lists and attaches a copy of each of the tax invoices constituting the claim made in the Demand.  The originating process seeks an order that the Demand be set aside pursuant to ss 459H and 459J of the Corporations Act 2001 (Cth) (‘Act’ or ‘Corporations Act’).  The application has been made within the time specified in s 459G of the Act. iDevelopment’s claim arises from a construction project at McLean Street in West Brunswick (‘McLean Street Property’).  One of iDevelopment’s ... Read more

]]>Fri, 22 Jul 2022 16:54:28 GMT Morris v Victorian Farmers Federation [2022] VSC 407 (19 July 2022) The plaintiff challenged the decision of the defendant to terminate his membership. The plaintiff asserts that there was inadequate particularisation of impugned conduct. The Court, in resolving this dispute, relied upon Corporations Act 2001 (Cth). Facts: The plaintiff, Ian Morris, challenged the decision of the defendant, the Victorian Farmers Federation (‘VFF’), to terminate his membership. The VFF is an Australian public company, incorporated under the Corporations Act 2001 (Cth), and limited by guarantee. Various commodity groups operate under its auspices that are dedicated to issues affecting the interests of a particular form of primary production or products. This includes United Dairyfarmers Victoria (‘UDV’), of which Mr. Morris is a member. At the heart of the plaintiff’s case was the complaint that the VFF’s decision, taken by a domestic tribunal in the form of the board, was invalidated by procedural unfairness. Since July 2015, Mr. Morris has been a member of the VFF, and the UDV within the VFF.  He was the Secretary of the Corangamite Branch of the UDV and a recent member of the Colac Branch. Ms. Germano encountered Mr. Morris at a VFF AGM and VFF Grains Conference on 24 February 2020 when she attended a meeting at which he was present.  She described his conduct as unnecessarily disparaging of individuals on the policy council and aggressive and critical of the governance of the UDV policy council. Board meeting minutes dated 30 June 2020 record a verbal update from a grievance panel constituted to investigate allegations against Mr. Morris, among others. Mr. Morris claimed that the minutes of the grievance panel meeting was inaccurate. He said that he did not appreciate at the time that it was a grievance panel meeting and that the meeting of 25 June 2020 did not involve members being reprimanded for any behaviour.   However, on 8 July 2020, the VFF wrote to Mr. Morris n... Read more

]]>Fri, 22 Jul 2022 12:17:38 GMT Robert Crofft v BT Transport & Logistics Pty Ltd [2022] FWC 1839 (19 July 2022) BT Transport & Logistics Pty Ltd, the Respondent, terminated the plaintiff's employment. The plaintiff filed an application for an unfair dismissal remedy. The Court, in determining its orders, assessed if the plaintiff met the minimum employment period and whether an extension of time is warranted. Facts: Mr. Crofft was first employed by BT Transport on 20 August 2019. Mr. Crofft was advised of termination by BT Transport on 6 April 2022 and his employment with BT Transport ceased on 11 April 2022. In or around late August or September 2021 Mr. Crofft ceased work for the entity BT Transport and began working for another company, Mack Trans Australia Pty Ltd (Mack Trans). It is further agreed that in January 2022 Mr. Crofft ceased work for Mack Trans and recommenced work for BT Transport. Following his dismissal from BT Transport, Mr. Crofft posted a Form F2 – Unfair dismissal application from a Western Australia (WA) post office on 23 April 2022, twelve days after the dismissal took effect. The application was then received in the Melbourne offices of the Fair Work Commission (Commission) on 9 May 2022, 28 days after the dismissal took effect, meaning the application was made outside of the time period permitted by the FW Act. The Applicant provided a response on 23 May 2022, stating that his application had been posted on 23 April 2022, 12 days after the dismissal took effect, supporting this contention with a scanned postal receipt. This was also evidenced to the Commission by the envelope in which the application arrived, a scanned copy of which was provided to the parties on 16 June 2022, and which was marked by the postal service as having been sent from Queens Park, WA on 23 April 2022. The mailing receipt has the words “Queens Park” visible and the envelope shows 6107 as the mailing postcode, which is the postcode for several areas, including Queens Park, WA. ... Read more

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