Posts of Australian Paralegal Foundation RSSSun, 02 Aug 2020 22:04:03 GMTThe Premier's Declaration of a State of Emergency  

]]>Sun, 02 Aug 2020 22:04:03 GMTCanterbury 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: whether the defendant Council breached its duty of care to the plaintiff by failing to repair a crack in the footpath; and 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 h... Read more

]]>Mon, 10 Feb 2020 03:05:46 GMTA 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. Her family was informed that the nonagenarian had failed her compulsory medical examination after the medical officer found that she had “severe functional impairment.” 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. ... Read more

]]>Fri, 24 Jan 2020 10:49:53 GMT News emerged this week that Victoria Police knew of Lawyer-X as early as 2005,  this claim was not made by some low ranking official but none other than Victoria Police Chief, Simon Overland who claims his predesesor Christine Nixon knew in 2005.Simon Overland APM is the former Chief Executive Officer at the City of Whittlesea and a former Chief Commissioner of Victoria Police in Australia and Christine Nixon APM is an Australian former police officer who was the chief commissioner of Victoria Police from 23 April 2001 to 27 February 2009, being the first female chief commissioner in any Australian state police force.Those that have been following the scandal would remember that during the Royal Commission, Simon Ocerland couldn't remember if he told his former boss that Gobbo was also a police informant, so now it seems his diaries have helped with his memory,  three diaries were found in a Melbourne storage facility late last year days after he said he never kept any diaries!  Mr Overland apologised for not remembering the diaries existed, claiming he was "convinced they didn't exist".On Tuesday Mr Overland returned to the witness box to change his evidence in previous sworn testimony  "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 registrationas 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... Read more

]]>Thu, 23 Jan 2020 09:30:42 GMTThis 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 liabilityIt 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 firstl... Read more

]]>Wed, 18 Dec 2019 07:23:16 GMTThe tort of injurious falsehood is sort of like defamation against businesses or Corporations,  as you can not "defame" a Corporation and nor do they have a ready remedy in defamation if you do, it does not mean there is no common law remedey available to them against a person who does make malicious false statements against them. Most typically this tort is available when a business competitor makes false claims about the goods, services or business that is directed to the customers or would be customers of the business but this equally applied against individuals, say in online reviews or social media, where it causes damage to the business or causes customers to go elsewhere.Elements of the Tort :1. False Statement : The business has the onus of proof to prove that the statement was not true.2. That the false Statement was published. 3. That the false statement was published with malicious intent or reckless indifference to the truth of the matter. 4. That the business suffered damages as a result  Relevant Precendents :  Business to Business : Swimsure Laboratories Pty Ltd v McDonald [1979] 1 NSWLR 796. Competitor Falsely Claimed it's products did not comply with Government Standards.  Seafolly Pty Ltd v Madden [2012] FCA 1346. Swinwear designer falsely accused a competitor of copying her swinwear designs. (Note all elements were proven except (4) That the business suffered an actual loss). Customer to Business The precedent in common law on this issue was set in Kaplan v Go Daddy Group [2005] NSWSC 636 [30]-[33].In that case a disgruntled customer set up a web site hunterholdensucks.com with comments posted there making false statements against the business alleging fraud and over charging customers,  also the domain name itself was held to be an injurious falsehood from its implied meanings that the dealership was poorly managed and provided poor products and services.  Regulatory Agency v Business  Nyoni v Pharmacy Board of Australia (No.6) [2018]... Read more

]]>Tue, 17 Dec 2019 09:41:43 GMTMap to the future: Australian Government releases a roadmap for developing AI capability in Australia The global race to lead in AI is underway. The Commonwealth Government has recently contributed to the discussion with the release of Australia's AI Roadmap. It promotes strategies designed to advance Australia's AI capability and realise AI's potential for boosting industry productivity, creating jobs and economic growth, and improving the quality of life for Australians. Key takeouts Interest and investment in AI continues to grow in both the public and private sectors as technology advances and offers innovative solutions to challenging problems. Australia's Artificial Intelligence Roadmap identifies 3 high potential areas of AI specialisation to maximise the economic, environmental and social benefits to Australia: healthy ageing cities and infrastructure natural resources and environment. The report signals that data governance and information privacy will be key areas to watch in the development of AI. Read More : MinterEllison

]]>Mon, 16 Dec 2019 23:16:34 GMTThe increasing prevalence of drone technology has resulted in a greater focus on how this technology ought to be regulated.  We’ve set out below a summary of what is currently happening in Australia and around the world.  Drone Recap Drone use in Australia is regulated under the Civil Aviation Safety Regulations 1998 (CASA Regulations). These Regulations are enforced by the Civil Aviation Safety Authority (CASA) and regulate the licensing and operation of drone use.  While the CASA Regulations regulate matters such as minimum distances from people and places, prohibited flight areas and time of day licensing, CASA does not have jurisdiction over noise issues (managing complaints about drone noise is currently the remit of Air Services). Earlier this year, we wrote about Wing Aviation’s commercial drone delivery service following a trial undertaken in Canberra. The Canberra trial was met by complaints from local residents, largely concerned with the noise generated by the drones. These complaints led to inquiry by the ACT Government (the Standing Committee on Economic Development and Tourism) (the ACT Inquiry) whose recommendations included: the Australian Information Privacy Commissioner work with the ACT Government in considering placing restrictions on commercial delivery drones on the collection of the personal information of non-users in order to address privacy concerns; and the ACT Government proactively engage with the Commonwealth Department of Infrastructure, Transport, Cities and Regional Development (the Department), in the Department’s review of drone noise regulation, drawing on the experience of the ACT community in drone delivery trials. Changes in Drone Regulation Following the concerns of Canberra residents and the ACT Inquiry, the Department has: re-examined the applicability of the Air Navigation (Aircraft Noise) Regulations 2018 (the Air Navigation Regulations) and concluded that a range of commercial and recreational drone operatio... Read more

]]>Mon, 16 Dec 2019 03:55:17 GMTThe common law tort of deceit is committed where someone fraudulently makes a false representation that you rely upon which ultimately causes you loss.The elements of the tort are: The defendant made a false representation to the plaintiff The defendant made the representation fraudulently (in a way that intends to deceive by doing something dishonest) The defendant intended the plaintiff to believe in and rely on the representation The plaintiff did act in reliance on the representation, and The plaintiff suffered damage. (Magill v Magill (2006) 226 CLR 551 [59], [114]) ... Read more

]]>Sat, 14 Dec 2019 02:50:51 GMTFrom  the 17th of December 2019, Australian citizens wanting to travel to Chile will need to apply for and have a consular tourist visa.If visiting Chile you will need to request the visa from the Chilean consulate in Melbourne, Syndey or the A.C.T, prior to arrival in Chile.The visa allows a maximum stay of 90 days.

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