Popular Posts RSSThu, 31 Mar 2022 13:30:04 GMTDait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25 (2 March 2022) Intro:- This appeal is from a decision of the Federal Circuit Court (as it was then known) delivered in April 2021, which made orders dismissing an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal). Facts:- The Tribunal had earlier affirmed a decision of a delegate of the first respondent (Minister) to refuse the appellant’s (Ms Dait) application for a Student (Subclass 500) (Class TU) Visa. Ms Dait’s application fell under s 65(1) of the Migration Act 1958 (Cth) (Act), which required the Minister to consider whether he was satisfied that the criteria prescribed by the Migration Regulations 1994 (Cth) (Regulations) had been satisfied. Ms Dait’s visa was cancelled, and that decision was upheld by the Tribunal, on the basis that Ms Dait did not satisfy the Genuine Temporary Entrant criterion in cl 500.212 of Sch 2 of the Regulations. The Primary Judgment Ms Dait sought judicial review on two grounds. Ground 1 alleged that the Tribunal failed to comply with the mandatory requirement under s 425 of the Act to “invite” Ms Dait to give evidence and present arguments in relation to the issues arising on review. Ground 2 alleged that the Tribunal misconstrued and misapplied cl 500.212 of the Regulations by considering subcl 500.212(a) of the Regulations, but failing to take into account and deliberate upon the mandatory criteria in respect of subcll 500.212(b) and 500.212(c). The primary judge dismissed both grounds of review. Relevantly, in respect of Ground 2, the primary judge found that in the circumstances of the case the Tribunal was not required to refer expressly to subcll (b) and (c) in making a determination: PJ [21]. In reaching this conclusion, the primary judge considered himself bound by two decisions of this Court, namely Vidiyala v Minister for Home Affairs [2018] ... Read more

]]>Thu, 31 Mar 2022 13:30:04 GMTMotor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company v Cheng [2021] NSWSC 1141 (10 September 2021) The parties entered into a contract for the sale of a vessel. The plaintiff decided not to proceed with purchasing the vessel and required a refund of the deposit. MYSA, the defendant, seeks damages for the plaintiff, Ms Cheng’s refusal to perform her obligations under the contract.  The Court, in adjudicating this dispute, assessed whether or not the contract is binding. Facts: On 29 September 2016, Plaintiff Ms Cheng’s son, Mr Cheng Shu, contacted Mr Damien Johnson, a marine broker employed by MYMB at the relevant time.  When Mr Cheng Shu visited MYSA’s offices at Rose Bay Marina with Ms Cheng and her husband, Mr Johnson introduced them to the V48 Vessel.  Ms Cheng and her husband do not speak English. On Saturday 1 October 2016, Ms Cheng, her husband, Mr Cheng Shu spoke to a different broker, Mr Sean O’Doherty.  Ms Cheng (with Mr Cheng Shu acting as translator for his mother) and Mr O’Doherty negotiated a sale price for the V48 Vessel of $1,180,000 with a deposit of $20,000.  Ms Cheng signed a pro forma contract for sale of the V48 Vessel, which contained handwritten special conditions completed by Mr O’Doherty, and paid the $20,000 deposit by electronic funds transfer.  On 1 October 2016, Mr Johnson telephoned Mr Cheng Shu and informed him that Ms Cheng’s offer of $1,180,000 for the V48 Vessel was accepted by MYSA.  On 2 October 2016, Messrs Thompson and Sutton motored the V48 Vessel to Ms Cheng’s residence in Woolwich.  Mr Thompson and Mr Sutton collected friends of Ms Cheng’s husband and motored those passengers around Sydney harbour for 30 minutes before dropping them back at Ms Cheng’s residence.  Mr Thompson and Mr Sutton then motored the V48 Vessel back to Rose Bay Marina.  Ms Cheng said that she had decided not to proceed with purchasing the V48 Vessel and required a refund of the deposit.  MYSA, the defendant, seeks damages for the plaint... Read more

]]>Mon, 13 Sep 2021 05:39:28 GMTBolinger v Bell (No 2); The Estate of Colin Bell [2022] NSWSC 1495 (3 November 2022) Intro: This judgment concerns different proceedings involving the estate of Colin Morton Bell (the deceased) who died testate, on 14 March 2022, leaving the property in New South Wales. Donna-May Bolinger, the wife of the deceased and who was appointed by the deceased as his attorney under an Enduring Power of Attorney, filed an application for an interim property order. However, the child of the deceased, Ned Bell, who is also appointed by the deceased as his attorney under an Enduring Power of Attorney opposed such application. Facts: Donna-May Bolinger, the wife of the deceased (although they had separated), is one of the parties in the proceedings. Ned Bell, a now adult child of the deceased from a previous marriage, is the other party. For the avoidance of confusion, and because the parties appear in different capacities in the different proceedings, I shall refer to each, and other family members, after introduction, by his, or her, first name, respectively. I do not intend any undue familiarity. The deceased was born in December 1941, and died in March 2022, aged 80 years. He left property, both real and personal, in New South Wales. The deceased commenced a romantic relationship with Donna-May in 2010. In 2011, they commenced living together, and they were married in December 2014. There were no children in their marriage. The deceased had three wives prior to Donna-May, Louise Bell, Caroline Bell, and Emlen Gaudino, respectively. Louise and Caroline both predeceased the deceased. Emlen is still alive and is referred to by Ned as an “eligible person” within the meaning of that term in s 57(1)(d) of the Succession Act (a former spouse of the deceased). The deceased and Louise had one child, Kate Perkins (nee Bell). The deceased and Caroline had one child, Ned, and Caroline also had a child from a previous marriage, who is a stepchild of the deceased, Sophie Balderston... Read more

]]>Fri, 25 Nov 2022 08:48:35 GMTMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17 (14 June 2023) Intro:- The Full Court of the Federal Court of Australia concluded that the appellant's decision under s 501CA(4) of the Migration Act 1958 (Cth) refusing to revoke a decision to cancel the respondent's visa gave rise to jurisdictional error because the appellant took into account a consideration made irrelevant by s 85ZR(2) of the Crimes Act 1914 (Cth) – namely the respondent's offending as a child for which no conviction was recorded – when, under s 184(2) of the Youth Justice Act 1992 (Qld), the respondent was taken never to have been convicted of any of those offences committed as a child. Facts:- The respondent, Mr Thornton, is a citizen of the United Kingdom who arrived in Australia with his family in 1999 on an Australian parent visa when he was three years old. He has lived in Australia since that time on a succession of temporary visas, the last of which was a Class BB Subclass 155 Five Year Resident Return visa, granted in 2011. At the age of 16, Mr Thornton appeared three times in the Queensland Childrens Court and was found guilty of five offences: "failure to appear in accordance with undertaking", for which he was reprimanded; three offences – "going armed so as to cause fear", "serious assault police biting/spitting/applied bodily fluid/faeces", and "assault or obstruct police officer" – for which he was placed on a probation period of six months; and "assault or obstruct police officer", for which he was placed on a good behaviour bond for a period of six months. When he was 17, Mr Thornton appeared in a Queensland Magistrates Court and was found guilty of an offence of "commit public nuisance", for which he was ordered to pay a fine. No conviction was recorded for any of those offences. From when Mr Thornton turned 18 in September 2014 up until February 2018, at the age of 21, he was found guilty of a range of offences, including... Read more

]]>Sun, 22 Oct 2023 13:35:01 GMTVictorian Legal Services Commissioner v Bloom and Chiu (Legal Practice) [2021] VCAT 1088 (21 September 2021) Two solicitors from a Victorian firm were to recover unpaid tolls incurred by motorists resident in New South Wales driving on roads in NSW (the interstate debtors).  It is disputed whether or not debt collection proceedings against the interstate debtors could properly be brought in the Magistrates’ Court of Victoria.  The Court, in adjudicating this dispute and determining corresponding penalties, referred to the Legal Profession Uniform Law ss 296, 297 and the Professional Conduct and Practice Rules 2005, rules 14.1, 14.2 and 29.2.3. Facts: Mr Bloom was the principal of the firm Geoffrey Mendleson Lawyers Pty Ltd (GML) from 2007 – 2016.  From 2011, Ms Ching-Fei Chiu was an employee solicitor of the firm. From 2007-2015, at least 333 debt collection proceedings were commenced by GML against NSW residents, in relation to NSW road toll charges.  They were filed in the Victorian Magistrates’ Court, using its electronic filing system, EDI (Electronic Data Interchange).  A default judgement was obtained against the defendant. Mr Bloom was taken on as the principal of the newly established firm created by the mercantile agent Probe Australia Pty Ltd (Probe) in March 2007.  It was the sole shareholder of GML.  Mr Bloom conducted the debt collection practice from GML’s office in Caulfield.  But in 2011 another office, in the city, was opened.  Ms Chiu’s role became to manage the debt collection practice which was still run from the Caulfield office, while Mr Bloom spent most of his time in the new Melbourne office.  In November 2014, a NSW resident, a Mr Controna, made applications to set aside two default judgments which had been obtained against him.  In one of the cases, the plaintiff was Roam Tolling Pty Ltd (Roam).  In the other, the plaintiff was Tollaust Pty Ltd (Tollaust).  Both are companies in the Transurban Group.  Mr Controna stated that he was a a... Read more

]]>Wed, 22 Sep 2021 03:56:34 GMTThis paper examines the legality and enforceability of the new Australian Government “No Jab, No Pay/Play” Legislation with the view of potential aspects to challenge the validity of this new law. Starting with an examination of the legislation[1] and its intent, the Explanatory Memorandum states  "the Bill will ensure children fully meet immunisation requirements before their families can access child care benefit, child care rebate or the family tax benefit Part A supplement, [‘patient compulsion factor’]." Brief Background The Government expects the measure will result in savings of $508.3 million over five years. Exemptions will be granted only for medical reasons and Media reports suggest around 10,000 families will lose eligibility for payments in 2016–17[2]. The Budget measure is primarily targeted at conscientious objectors ‘the target’ who allegedly make up 1.77% of the population who “should be” vaccinated, but will affect all those who receive child care subsidies or the FTB-A supplement and whose children’s vaccination records are not up-to-date. To try and justify this the Government cites the overall rate of immunisation required to achieve herd immunity for measles at 95 per cent[3]. No Jab, No Pay but only a "Good Doctor" can certify? In reading the explanatory memorandum of the new Social Services Legislation Amendment (No Jab, No Pay) Bill 2015, there is the following explanation for changing the definition of a doctor. "The current definition of medical practitioner in subsection 3(1) of the Family Assistance Act would include a broader range of medical professionals than the definition of general practitioner in the Health Insurance Act 1973." Looking at the original definition of "medical practitioner" in the Family Assistance Act it states: "medical practitioner” means a person registered or licensed as a medical practitioner under a State or Territory law that provides for the registration or licensing of medical practitioner... Read more

]]>Fri, 15 May 2020 01:34:27 GMTIn November 2018 the Australian Government passed new legislation that would significantly impact the process for lodging family visas. The new requirement that sponsors for family visas be approved before a visa application can be lodged will take effect on 17 April 2019. It will apply to all Prospective Marriage Visa, Partner Visa or Parent Visa applications lodged from this date.Any Australian with a criminal record or who has a history of domestic violence, with the passing of the Family Violence Bill in the Senate last November, partner visa sponsors need to apply for approval first as a sponsor before applications are lodged. This means any one with a criminal record or a history of Domestic Violence will be unlikely to be approved and that potential offshore applicants and sponsors will have to pass through a stringent process to assess their character and history. This will then prolong the process of obtaining a partner visa. From the 17th of April, 2019 it means if you apply for Prospective Marriage Visa, Partner Visa or even a Parent Visa your sponsor will need to first be approved by the Department of Home Affairs, this additional step in the approval process is expected to have an additional charge of $420.It is important to note that there is an expected impact particularly on those planning to lodge a visa onshore, with the sponsorship approval process likely to exceed the validity of existing temporary visa's, bridging visa's will be unlikely and your spouse may need to go offshore and remain there until the sponsorship approval has been obtained and a visa application can be lodged. It is important to be aware that if an Australian sponsor has a conviction or fails to meet the character requirements due to a history of DV and AVO's they may not be approved.... Read more

]]>Thu, 11 Apr 2019 23:36:23 GMTVanderstock v Victoria [2023] HCA 30 (18 October 2023) Introduction: In a landmark decision, the High Court of Australia recently rendered judgment on Vanderstock v Victoria [2023] HCA 30, a case challenging the validity of Victoria's Zero and Low Emission Vehicle Distance-based Charge Act 2021. This case delved into the intricate interplay between sections 51(ii) and 90 of the Australian Constitution, shedding light on the taxation powers of both the Commonwealth and State governments. The Court's ruling, which declared a section of the Victorian Act invalid, has significant implications for fiscal federalism and the balance of power between states and the federal government in Australia. We explore the key issues, the ruling's implications, and the lessons learned from this precedent-setting case. Facts: The case in question is Vanderstock v Victoria [2023] HCA 30, heard by the High Court of Australia. The plaintiffs, Christopher Vanderstock and another party, challenged the validity of section 7(1) of the Zero and Low Emission Vehicle Distance-based Charge Act 2021 (Vic) ("ZLEV Charge Act"). This provision purports to obligate the registered operator of a zero or low emissions vehicle ("ZLEV") to pay a charge for using the ZLEV on "specified roads", which include all roads in Victoria and elsewhere in Australia over which the public has a right to pass. The charge is determined annually at a prescribed rate for each kilometre travelled by the ZLEV on specified roads in a financial year. The plaintiffs argued that this provision is invalid because it imposes a duty of excise within the meaning of section 90 of the Constitution. The defendant in this case was the State of Victoria, represented by R J Orr KC, Solicitor-General for the State of Victoria, with S Zeleznikow and M R Salinger. Various Attorneys-General from different states intervened in support of Victoria. The Attorney-General of the Commonwealth intervened in suppor... Read more

]]>Wed, 18 Oct 2023 06:18:40 GMTIssue: Whether the Magistrate's Court had jurisdiction to vary and extend the final family violence intervention order (FVIO) without an application or order for extension before the expiry date, and whether the relief in the nature of certiorari should be declined despite jurisdictional error. Rule: The relevant law in this matter is the Family Violence Protection Act 2018 (Vic), Part 4 and the Supreme Court (General Civil Procedure) Rules 2015 (Vic), Order 56. The law provides that a FVIO expires 12 months after it is made, unless extended by the court. An application for extension must be made before the expiry date of the FVIO. If no application or order for extension is made before the expiry date, the FVIO will expire. Application: In this case, DDD consented to a final FVIO protecting his wife EEE and child for twelve months without admissions. Two months later, on EEE's ex parte application, the court made an interim order varying the final FVIO to a "no contact" order, which was expressed to "last until final order". The matter was adjourned for the final hearing of the variation application. Due to delays resulting from the COVID-19 pandemic, the final hearing was not reached for another fourteen months, which is four months after the expiry date of the final FVIO. DDD did not apply for or order any extension of the final FVIO at the ex parte application or at any other time prior to the expiry date. Over DDD's objection as to jurisdiction, the magistrate made final orders varying and extending the final FVIO for two years, despite the passing of the expiry date. The magistrate ruled that the final FVIO was still extant because the earlier application for variation and adjournment carried with it an implicit extension of the final FVIO. DDD sought relief in the nature of certiorari to quash the magistrate's final orders, arguing that the court did not have jurisdiction to vary and extend the final FVIO without an application or order for extension befo... Read more

]]>Thu, 02 Mar 2023 21:31:40 GMTOliana Foods Pty Ltd v Culinary Co Pty Ltd (in liq) [2020] VSC 693 (21  October 2020)  This case involves a claim seeking damages and other relief against a former director of a corporation when the former officer improperly used his position as director to gain advantage even after his resignation. Facts: Oliana pressed a number of claims seeking damages and other relief against Mr Floropoulos, namely:  breach of statutory duty claims based upon an allegation that Mr Floropoulos was a de facto director or officer of Oliana; breach of fiduciary duty claims based upon Mr Floropoulos owing fiduciary duties to Oliana by reason of his position as a de facto director and officer of Oliana, and by reason of his role and responsibilities in connection with securing an alternative supply of vegan cheese for the benefit of Oliana; and claims that Mr Floropoulos engaged in misleading or deceptive conduct and was involved in conduct of that character engaged in by Mr Hone and Culinary Co. The dispute relates to the supply to and distribution by Oliana of vegan cheese products manufactured by a Greek company, Kremel AE (Kremel). Oliana’s claims are allegations that Mr Floropoulos: (a) was a de facto director, officer, and fiduciary of Oliana responsible for sourcing an alternate supplier of vegan cheese for Oliana to replace Oliana’s then long-term supplier who, so Oliana and Mr Floropoulos had discovered in March or early April 2016, was making a very substantial margin on the prices it charged Oliana when compared to the prices it paid its own Greek manufacturer; (b) travelled to Greece on behalf of Oliana in late May 2016, identified Kremel as a suitable alternative manufacturer/supplier of vegan cheese products, and negotiated and agreed a very favourable Kremel supply price for Kremel vegan cheese, but did not disclose this price to Mr Canzoneri or anyone else at Oliana; (c) with the co-operation and assistance of the fourth defendant, a solicitor, Mr Hone, interposed ... Read more

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