Fair Work Law – Extension of time (reckoning of time)

[2010] FWA 7908 SA Burgoyne v Festival City Wine & Spirits P/L (“the 14-day period is exclusive of the day of … the dismissal” @18 – A at first decided not to contest dismissal, and R was aware full bio here of this, as there had been discussions with A about it – A sought alternative employment – however, A soon sort legal advice – some delay with legal advice – A acted promptly after receiving advice – application one day late – A may have some difficulty on the merits – extension granted) [2010] FWA 9622 Vic TWU v Veolia Environmental Services Australia P/L (“The pay period indicated on a system generated pay slip along with the pay date is no indication of the date of termination of employment” @13) [2013] FWC 784 NSW Pummeroy v Grafton Electrical (the use of the word ‘after’ in the expression ‘within 14 days after’ excludes the day of dismissal) [2013] FWC 2564 NSW Cameron v Metecno (“if an applicant was dismissed at 9am on a day and made an application pursuant to s394 of the Act at 12 noon on the same day I am not convinced that it would be unlawful. Since the applicant in this case received notification of his dismissal late on 7 February and his application was received by the Commission registry in Hobart in the morning mail on 7 February the principle followed by DP Smith in Truong is apposite – the applicant was still employed when he made his application and thus his application was not in accordance with the Act. This is the basis...

Traffic Law Publication – Headings to useful criminal traffic law publication for Australian criminal traffic lawyers

Below are the subject headings to a very useful criminal traffic law publication for Australian criminal traffic lawyers Table of Subject and Keyword headings Presentation note Aborigines Articles Sentencing Accumulation of sentence ‘A consequence of’ the driving of the vehicle’ Acts endangering life or creating risk of serious harm Adjacent land Entering road from Aiding & abetting dangerous driving Alcohol Articles Accustomed to heavy drinking Effect of consumables on alcohol testing results Breath analysis principles Drinking after ceases driving and before breath test Effects of (on motorcyclist) Elimination rates Evidence Intervention orders Leading animals while driving/riding Mouth wash Passengers (articles) Post-accident use of Reaction time (expert evidence) Alighting passengers Ambulances Animal drawn vehicles Lights on Animals ARRs Arising out of use of motor vehicle Arrows Assumptions Driving of others (re) Law being observed Australian Capital Territory Annotations and/or links to relevant legislation Crimes Act 1900 s29(2) – Culpable driving of motor vehicle s29(4) Crime (Sentencing) Act 2005 s17 – Non-conviction order s33(1) – Sentencing – Relevant considerations Criminal Code 2002 Road Transport (Alcohol and Drugs) Act 1977 s15AA – Taking blood samples from people in hospital s17 – Exemptions from requirements to take blood samples … s19 – Prescribed blood alcohol concentration exceeded s22 – Refusing to provide breath sample s23 – Refusing blood test etc Road Transport (Driver Licensing) Act 1999 s32(1)(a) – Offences committed by disqualified drivers s32(2) – Offences committed by disqualified drivers Road Transport (General) Act 1999 s44 – Suspension for non payment of infringement notice penalties s61B – Immediate suspension of licence s61C – Drive while suspension notice in effect Road Transport (Safety and...

Assessment of damages – Farmers – Economic loss

Agricultural Enterprises   See Clement v Backo & Suncorp Metway Insurance 16/3/07 [2007] QCA 81at [32] McMurdo P (Full Court) and Clement v Backo & Anor 26/4/06 [2006] QSC 129 at [54] where the need to take into account the vagaries of an agricultural enterprise in assessing damages for loss of income from such enterprises is recognised.   See Kay v Murray Irrigation Limited 11/12/09 [2009] NSWSC 1411 where likely yields from rice cropping were considered in determining economic loss. Fullerton J also considered damages for replacement labour as P could no longer do the physical aspects of rice farming. The impact of likely water allocations was also considered.   In Meakes v Nominal Defendant 15/3/11 [2011] NSWDC 9 Levy SC DCJ assessed past damages for the cost of employing a fencing contractor and the future costs of employing rural labour in a case where a lawyer suffered a minor shoulder injury which affected his ability to contribute to a farm which he acquired as a co-owner subsequent to his injury. Plans for the acquisition of the farm had been firmly in place before his injury. Relevance of co-ownership discussed. Appeal allowed in Nominal Defendant v Meakes 4/4/12 [2012] NSWCA 66 [60 MVR 380].   In Kerney v Mead & Anor 3/6/11 [2011] achaten-suisse.com NSWSC 518 Garling J was not prepared to make an award for loss of farm earnings where a part-time farmer who’d never made a profit from his cattle was seriously injured, and where there was limited evidence to justify claim. See from paragraph 234. On an appeal limited to the issue of economic loss in...

Fair Work Act – Extension of time

Electronic lodgement (difficulties with) [2011] FWA 8375 Vic Hillbrich v C & D DeMartin (the A, who was a third year apprentice, had no internet connection and decided it was too difficult to proceed and was depressed – A contacted FWA soon after his dismissal, but claimed not to know about the 14 day limit or that he could lodge his application other than by the on-line method – extension refused) [2012] FWA 6980 Vic Parker v Cetel Communications (where application may have been one day late and where A had difficulties lodging on-line and effecting payment due to his own lack of skills, exceptional circumstances found) [2013] FWC 2059 NSW Roberts v Ozone Manufacturing (the A thought he had electronically filed his application on time, but when he followed it up two months later he discovered he hadn’t – unclear what went wrong with e-filing – merits of case in A’s favour – extension allowed) [2013] FWC 6586 Vic Garson v Urban Land Authority (A’s application one day late due to his failure to use the electronic lodgement system successfully – it was plausible that his efforts failed due to the volume of material he tried to scan – exceptional circumstances found) [2014] FWC 1085 WA Thorpe v Standard Communications (“as a result of either the applicant’s errors in using the Commission’s efiling system or due to faults in the operation of the efiling system the applicant mistakenly believed he had made his application within the 21 day time limit however when he was advised that no application had been received he immediately emailed his application to the...

Liability & Apportionment – Recent motor vehicle accident cases

Boomgate See Simmons v Rockdale City Council and St George Sailing Club 27/9/13 [2013] NSWSC 1431 [65 MVR 141] per Hall J. P, an experienced sports cyclist, was seriously injured when he struck a boom gate (a solid swinging gate) whilst on an early morning ride. The gate was at the exterior of a car park adjacent to D2’s sailing club premises. The gate had been placed there by D1, in exercise of its powers, to minimize hoon driving in the car park. D1 joined D2 on the basis it had failed to move the boom gate back into position after securing it at night. The Trial Judge, in a lengthy decision, found D1 responsible for the accident. D1 was aware this car park was commonly used as a short cut by cyclists and owed a duty to ensure the boom gate was not a hazard. The arrangement between D1 and D2 as to the opening and closing of the gate was vague, relying on a cleaner employed by D2, and His Honour dismissed the claim against D2, citing an absence of duty. There had been occasional other accidents with cyclists hitting the gate and D1 was obliged to find a better system of stowing the gate. In those incidents the riders observed the gate and were able to reduce speed to avoid significant impact. His Honour found that P had contributed, to the extent of 20%, to the accident for failing to take care for his own safety. Section 87, 114 & 115(2) of Roads Act and s43A of CLA considered. No failure to exercise a statutory power...