The Corona Virus is changing the way that all aspects of our society operate on a daily basis.
Like many Australian businesses, small and large, Potts Lawyers is working to adapt to a rapidly changing landscape
We will be maintaining a team of solicitors to service all of the legal needs, of all of our clients, during this period.  We remain willing and available to assist those who need advice.   
Whilst there have been some changes, our court system is still operating, and we continue to represent people in criminal law and commercial litigation on a daily basis.  Protecting our client’s interests and rights continues to be our focus.  We have been doing this for a long time.
The adaption process has involved us undertaking a number of measures, including asking some members of our firm to stand down in the short to medium term.  This was a very difficult decision, but regrettably necessary in these volatile times.
When this storm passes, our firm we will return to normal operations and continue our tradition of serving the community.

The Potts Lawyers Team

The post Potts Lawyers and Corona Virus – Willing and available to assist those who need advice appeared first on Potts Lawyers.

Corona Virus – COVID-19 – Offence provisions and police powers to enforce lockdowns and isolation directives
The Corona virus or COVID-19 has changed the way in which we know life now and is likely to continue to change our lives into the future.  We hear on the news or in press conferences about directives being issued.  Directives to avoid mass gatherings, to self-isolate and requiring social distancing. We are told that if people disobey such directives, then they can be fined and even imprisoned.
Potts Lawyers have outline all the ‘must know ‘information in regard to police powers and rights with lockdowns, isolation and applicable fines associated with unwillingness to comply with the new directives surrounding COVID-19.
There are some glowing questions that stem from this and to assist the greater Queensland community, the below is a brief summary of the pertinent questions that people are asking us:

WHAT IS A RECOMMENDATION AND WHAT IS A DIRECTIVE?
The Coronavirus is a defined as a ‘notifiable condition’ within Schedule 1 of the Public Health Regulation2018(Qld).  Among other things, this means that if a doctor examines a patient and discovers the disease is present, then the Chief Health Officer (CHO) of Queensland Health must be immediately notified.  What follows from this is recommendationsby the CHO to other executive arms of the government on how to manage the disease.  In short, those recommendations are not legally enforceable but may inform future directions.
 
A directiveis a direction made by the Chief Health Officer and may be published on the department’s website, or in the government gazette and contains directions relating to public health and the COVID-19.  The recommendations received by the CHO form the basis of decisions made to issue Emergency Orders or Directions.  These are legally enforceable.
 
WHAT LEGISLATION ALLOWS THESE DIRECTIONS TO BE GIVEN?
Part 7A of the Public Health Act 2005(Qld) was enacted on 19 March 2020. It specifically deals with the COVID-19 crisis.  The purpose of the amendment is to provide additional powers for the COVID-19 emergency to the Chief Health Officer and emergency officers (including police).
 
Section 362Brelates to public health directions, to assist in containing, or to respond to, the spread of COVID-19 within the community.  The section allows the Chief Health Officer to give any of the following public health directions:

a direction restricting the movement of persons;
a direction requiring persons to stay at or in a stated place;
a direction requiring persons not to enter or stay at or in a stated place;
a direction restricting contact between persons;
any other direction the chief health officer considers necessary to protect public health.

 
The direction must state how long the directive applies for and what happens if a person fails to comply with direction[1].
 
WHEN DO THE PUBLIC HEALTH DIRECTIONS TAKE EFFECT?
The directions take effect as soon as it is given[2].  If it is published on the government’s website or in a gazette, then it takes effect when it is first published[3]. The government needs to advertise the direction as soon as practicable after it is made, which is why the media has been of great assistance in spreading the message.
Unfortunately, the law in Queensland states that it is not a defence simply because you were unaware of the law.
 
HOW CAN THE GOVERNMENT TELL ME TO CLOSE MY BUSINESS?
Section 362F of the Public Health Act 2005(Qld) gives the power for the Chief Health Officer to publish a notice directed to owners or operators of businesses or undertakings of a stated class.
The notice contains recommendations that the owners/operators should do one or more of the following at a stated time, in a stated way or to a stated extent in relation to any facility used by them in conducting their business:

open the facility;
close the facility; or
limit access to the facility.

An example is that the CHO might issue a notice that supermarket owners should open for trade during stated hours and limit entry to customers holding pensioner concession cards.
 
SO WHAT HAPPENS TO ME IF I DON’T FOLLOW A DIRECTIVE/DIRECTION?
You will commit an offence under section 362D of the Public Health Act 2005(Qld).  This sections states that:
“A person to whom a public health direction applies must comply with the direction unless the person has a reasonable excuse.
Maximum penalty—100 penalty units”
 
WHAT IS A PENALTY UNIT AND HOW MUCH WILL I BE FINED?
You will receive a fine of up to 100 penalty units.
One penalty unit in Queensland is currently $133.45.  Therefore a fine of up to $13,345.00 can be imposed.
 
YES, BUT THAT IS THE MAXIMUM…HOW MUCH OF A FINE WILL I ACTUALLYBE GIVEN?
The police have the power to issue infringement notices for failing to follow a direction.  It is not yet known what the actual figure would be.
Presently police can issue an infringement notice for disobeying a direction under the Police Powers and Responsibilities Act 2000(Qld) and this amount is $533.00.  It is unknown what the infringement amount will be for disobeying a direction under the Public Health Act.
 
WHAT IS AN EMERGENCY OFFICER?
The Chief Health Officer has the power to appoint certain persons as emergency officers for the COVID-19 crisis[4].  Those people are:

public service officers or employees;
health service employees;
persons employed by a local government;
SES members under the Fire and Emergency Services Act 1990;
other persons prescribed under a regulation

 
HOW WILL I KNOW IF SOMEONE APPROACHES ME?
As soon as practicable after the person has been appointed, they will receive a photo ID card and must wear it all times identifying them as emergency officers[5].  They must produce the ID card when performing a function.
 
WHAT IS THE FUNCTION AND ROLE OF THE QUEENSLAND POLICE SERVICE DURING LOCK DOWN AND ISOLATION PERIODS?
Basic functions of police can be found within 2.3 of the Police Service Administration Act 1990(Qld).  These functions speak about the preservation of peace and good order, the protection of communities, prevention of crime and the administration of law and directions by the Commissioner of the provisions of all Acts or laws within the State.
For COVID-19 purposes, these functions are linked to section 16 of the Powers and Responsibilities Act 2000(Qld) whereby the police officer has the power to assist the public official in exercising the duty and power of the public official.
 
For example, if an authorised health officer is checking to see whether a person is remaining in isolation, a police officer may accompany them and assist them in performing this task.
 
Emergency Officers (EO’s) now undertake roles of monitoring compliance with COVID-19 directions.  Police Officers can be appointed as EO’s and an example of this occurring is the police presence at the borders stops between Queensland and New South Wales.
 
CAN I BE ARRESTED BY THE POLICE?  DON’T I JUST GET A FINE IF I DISOBEY A DIRECTION?
Yes you can still get arrested.  Even though the police may be exercising their function as Emergency Officers under the Public Health Act, they still possess their everyday Police powers and if someone is becoming aggressive, disturbing the police or obstructing police in their duties or committing any other offence, the police officer has the power and option to the arrest the person. This may result in additional charges which carry other penalties. For example, obstructing a police officer in the performance of their duties carries a maximum penalty of imprisonment.
 
HOW CAN THE GOVERNMENT STOP PEOPLE ENTERING AUSTRALIA AND MAKE THEM SELF-ISOLATE?
There is a mix of Federal and State laws that can apply here, depending on what federal and state powers have been exercised.
The federal lawthat apples is the Biosecurity Act 2015(Cth).  Under Chapter 2, part 3 of that Act, human biosecurity control orders can be made against people who have symptoms or, or who have been exposed to a disease, or who have failed to follow any mandatory procedures when arriving in Australia.  A control ordercould direct the person to stay at home or at a particular place (ie. to self-isolate).
 
Another option would be to declare a human biosecurity emergency. If this was declared then the Health Minister would have a raft of powers to direct the movement of people and close premises.  Significant fines and even imprisonment can be ordered for failing to comply.
 
No such federal human biosecurity emergencyhas been declared yet and the States are implementing the 14-day isolation laws under their own laws, ie the Public Health Actin Queensland (see above).
 
Every effort has been made to ensure this information is up to date at the time of publishing (24 March 2020).
[1]Section 362B – Public Health Act (2005)Qld
[2]Section 362C(1) – Public Health Act (2005)Qld
[3]Section 362C(2) – Public Health Act (2005)Qld
[4]Section 333 – Public Health Act (2005)Qld
[5]Section 340 – Public Health Act (2005)Qld
The post Corona Virus – Police powers to enforce lockdowns and isolation directives appeared first on Potts Lawyers.

Queensland Courts Response to COVID-19 crisis

In response to the current COVID-19 crisis courts throughout Queensland are instigating a range of measures with a view to limiting the exposure of parties involved in court proceedings to the risk of infection.
 
Guidelines have now been issued by the Supreme, District and Magistrates courts outlining the steps they will be taking to ensure the health and safety of all parties during the coming period. These include measures such as postponing all new jury trials in the District and Supreme Courts, excusing the personal appearance of defendants in some matters and prioritising the hearing of matters that are considered particularly urgent.
 
While further steps may be taken as the situation progresses the courts have indicated their intention to remain open and hearing matters where possible during the crisis. They have also indicated their expectation that prosecution and defence lawyers continue to progress matters during this period.
 
Potts Lawyers will remain open and able to assist clients in relation to all court matters during this period.
 
For further advice regarding the impact these new measures may have on your matter, and the options that may be available to you, please contact our Brisbane or Southport Offices to speak with one of our lawyers.
The post Queensland Courts Response to COVID-19 crisis appeared first on Potts Lawyers.

WHEN LIFE GIVES YOU LEMONS

At Potts Lawyers we received many enquiries about new car buyers buying a lemon car. A “lemon” is a common term for a vehicle that turns out to have several manufacturing defects affecting the safety, value, or utility of that vehicle.
Most Australia states did not previously have ‘lemon laws’. Lemon laws are aimed at protecting consumers against defects in new vehicles, and usually require the manufacturer to repair, replace, or refund the consumer’s vehicle.
Beginning 1 September 2019 the Queensland government finally introduced new lemon laws to protect consumers who purchase defective motor vehicles. The changes came after an inquiry into the matter recommended that consumers need further protections. Almost all other developed countries have had comprehensive lemon laws for decades.
Consumers are now able to make claims in QCAT for defective motor vehicles for up to $100,000 (instead it only $25,000), and some additional warranties now apply for those who purchase motor vehicles over 10 years old or with more than 160,000km on the odometer (30 day/1000 km warranties)
However buyers should still beware: if you purchase a motor vehicle from a private individual that is not a motor dealer, you are not covered and so assume that you are buying on a ‘as is, where is’ basis in those situations, or get advice from a lawyer if you want the get a written contract with the seller which makes additional warranties.
If you are planning on purchasing a pricey vehicle, or if you have bought a vehicle which you think is a lemon, it’s important that you get legal advice immediately.
What is a ‘Lemon’?
A ‘lemon’ is a term usually used to describe a significant defect in a motor vehicle. However the term is more commonly used where a consumer is frustrated with the motor vehicle and the services or the dealer or manufacturer, and where the defect is typically irreparable, or where the dealers has repeatedly failed to repair it.
You may have purchased a ‘lemon’ if your new vehicle:

Suffers from repeated problems;
Suffers from problems which persist despite attempts to repair them;
Has required numerous visits to the dealer or service departments, including obtaining reports from independent repairers and specialists;
Spends a considerable amount of time off the road for repeated repairs, affecting your ability to enjoy the reliability of and use of the vehicle;
Requires numerous works under warranty, with some warranties either expiring or being extended.

In many cases, consumers can find themselves in a position where they can get into a civil dispute with their dealers or the manufacturer in relation to the repair, replacement, or refund of monies, associated with the problems listed above.
What if the defect affects the safety of the vehicle?
Usually, consumers will be in a stronger position to demand a repair, replacement, or refund, where a vehicle suffers from a manufacturing defect which affects the safety of that vehicle. In these instances, consumers should stop driving the vehicle and notify the manufacture, car dealer, and the ACCC immediately. In most cases, common defects should be covered by recalls, which should be repaired by the manufacturer without any charge to the consumer.
If it is not a common defect recognised by the manufacturer or the ACCC, consumers should still be entitled to relief, however in many cases we have still seen vehicle manufacturers being reluctant to repair some of these defects.
Problems Associated with Identifying Defects
It is not uncommon for the Dealers and Manufacturers to not properly identify defects. In many cases, as a result of the following factors, defects are sometimes identified after the vehicle is out of warranty:

The source of the problem or issue cannot be identified by the Dealer / Manufacturer;
The ongoing issue cannot be corrected, leading to the issue persisting after the warranty period;
The problem or issue not being ‘heard’ or ‘seen’ by the Dealer / Manufacturer when the vehicle is brought in, despite the consumer’s complaints (not being able to ‘replicate’ the issue).

Inadequate Proposals or Resolutions by the Dealer / Manufacturer
In many cases, consumers are dissatisfied with the proposed solutions of the motor dealer or manufacturer.
Examples of inadequate solutions proposed include:

Small offers of monetary compensation;
Inferior replacement vehicles;
Trade-ins (but where the trade in value of the vehicle is very low).

In many cases, no satisfactory offer of repair, refund, or replacement is made altogether.
Australian Consumer Law
Consumers may be entitled to relief under Australian Consumer Law since the ACL applies to consumers who purchase vehicles or trailers, and since Australian Consumer Law has guarantees that apply to these purchases.
Some of these guarantees found within Australian Consumer Law include guarantees that:

the goods are of acceptable quality;
the goods are fit for any purpose specified by the supplier;
the description of the goods is accurate;
the goods should match the sample (or demonstration model); and
the manufacturer will take reasonable steps to make spare parts and repair facilities available for a reasonable period after purchase.

Getting Legal Advice
If you have bought a defective new vehicle, and the manufacturer is not cooperative in assisting you with the repair, replacement, or refunding of the purchase price, or if their proposed resolution is completely unreasonable and inadequate: you should get legal advice as soon as possible.
In circumstances where the vehicle purchased is an expensive luxury vehicle, and where the expectation of quality is higher, buying a lemon can be particularly devastating and costly.   Similarly, if the vehicle purchased was for a low income family who cannot afford another vehicle to transport their children, the effects could be devastating on that family’s livelihood.
Potts Lawyers are experienced in assisting consumers who have recently purchased defective goods, including vehicles. In most cases, we can draft correspondence to the relevant motor dealer or the manufacturer, setting out the issues with the vehicle, and any rights you may have under Australian Consumer Law.   In many cases, this can result in a positive outcome without the need for court.
It is recommended that you obtain legal advice in relation to defective motor vehicles immediately so that your rights can be protected to the fullest extent possible.
The post New lemon car laws introdcued to protect consumers who have bought defective or faulty vehicles appeared first on Potts Lawyers.

If you’re not already aware on 1 February 2020 the penalty for using your mobile phone whilst driving increased to a fine of $1000.00 and 4 demerit points. For drivers caught twice within 12 months, double demerit points apply, and you may now lose your licence.
 
The law which provides that you cannot use a mobile phone while driving is found in section 244O of the Transport Operations (Road Use Management – Road Rules) Regulation 2004:-
 
244O Using mobile phones on device
 

A person must not use a mobile phone that the person is holding in the person’s hands while the person is using a personal mobility device.

 
Maximum penalty—20 penalty units.
 
What does using a mobile phone mean?
Under 224O(2) using a mobile phone is described as either one of the following:-
 
(a) holding the phone to, or near, the ear, whether or not engaged in a phone call;
(b) writing, sending or reading a text message on the phone;
(c) turning the phone on or off;
(d) operating any other function of the phone.
 
 
Can I still use my handsfree function?
Given the definition explicitly states that a person commits the offence where the person “…use[s] a mobile phone that the person is holding in the person’s hands”. Arguably, this means that if you use your car’s handsfree function and are not touching your phone, you are not committing the offence.
 
 
What if I am not moving (e.g. sitting at a red light)?
Where you are driving a vehicle on a road and are caught using a mobile phone, you cannot use being stationary or stopped as a defence. The term “drive” is defined in Schedule 5 of the Act and includes the words “be in control of”. This is a broad definition and could capture a large range of circumstances which drivers may encounter on the roads.
 
Can I use my mobile and press buttons if it is placed in a holder on the dashboard?
As the offence requires that the mobile phone be in a persons hands, it is arguable that if your mobile phone is sitting in a holder on the dashboard then you are not committing the offence (this would be relevant for Uber, Didi and OIa drivers).
 
Can I use my mobile as a satnav?
Yes. However, you would be required to set up the navigation before you begin driving and ideally you would need to have the device in a holder so avoid having to place the phone in your hands.
 
Can I take part in a call on my mobile in speaker mode?
Yes. However, you would not be able to touch your phone in any way while doing so.
 
Can I listen to podcasts or music on my mobile when driving?
Yes. However, you would not be able to touch your phone in any way while doing so.
 
Can I contest my fine and do I need a lawyer?
If you wish to contest a fine for this offence, you have 28 days from the date the fine is issued to do so. Before making any election to contest the fine we would advise speaking with one of our lawyers first.
 
I have accumulated all of my demerit points. What can I do?
If you are fined for this offence and have accumulated all of your 12 demerit points you will be given the option by the Department of Transport to complete either a 3 month driver suspension or a 12 month good behaviour period (during which you will be allocated 2 points).
 
If you choose the good driving behaviour period and accumulate in excess of 2 demerit points during the 12 month period you may be eligible to apply for a Special Hardship Order which will, if granted allow you to drive in accordance with the conditions of the order.
 
If you would like to find out more about Special hardship Orders, please don’t hesitate to contact us for a free initial consultation.
 
Please note, the FAQ’s answered above are answered on the basis that a driver holds an open driver licence and are answer on the basis of the law as current in Queensland only.
 
The post Mobile Phones While Driving | Potts Lawyers Blog appeared first on Potts Lawyers.

Adam Moschella, criminal lawyer at Potts Lawyers Brisbane is a member of the Queensland Law Society Human Rights and Public Law Committee.
 
In this article, he draws attention to the potential impact on criminal law matters of the recent introduction of human rights laws in Queensland.
 
On 1 January 2020 the Human Rights Act 2019 came into force in Queensland. This makes our state one of only three jurisdictions in Australia to enact specific human rights legislation. The other jurisdiction being the Australian Capital Territory and Victoria.
 
The main objects of the Act are to protect and promote human rights, help build a culture in the Queensland public sector that respects and promotes human rights and to help promote a dialogue about the nature, meaning and scope of human rights.
 
The Act protects 23 rights, specifically:-
 

Recognition and equality before the law
Right to life
Protection from torture and cruel, inhuman or degrading treatment
Freedom from forced work
Freedom of movement
Freedom of thought, conscience, religion and belief
Freedom of expression
Peaceful assembly and freedom of association
Taking part in public life
Property rights
Privacy and reputation
Protection of families and children
Cultural rights—generally
Cultural rights—Aboriginal peoples and Torres Strait Islander peoples
Right to liberty and security of person
Humane treatment when deprived of liberty
Fair hearing
Rights in criminal proceedings
Children in the criminal process
Right not to be tried or punished more than once
Retrospective criminal laws
Right to education
Right to health services.

 
These are primarily civil and political rights drawn from the International Covenant on Civil and Political Rights but also include two rights drawn from the International Covenant on Economic, Social and Cultural Rights and one from the Universal Declaration of Human Rights.
The Act also explicitly recognises the special importance of human rights to the Aboriginal peoples and Torres Strait Islander peoples of Queensland as Australia’s first people and their distinctive and diverse spiritual, material and economic relationship with the lands, territories, waters and coastal seas. It also recognises the particular significance of the right to self-determination to Aboriginal peoples and Torres Strait Islander peoples.
More information regarding the Human Rights Act 2019, the rights that the Act protects and how complaints can be made can be found on the Queensland Human Rights Commission website: https://www.qhrc.qld.gov.au/your-rights/human-rights-law
 
The Human Rights Act & Criminal Law
 
The Act is a significant piece of legislation which assists is protecting peoples’  human rights across all areas of law, but arguably none more so than criminal law.
 
The new legislation can potentially assist in matters such as bail applications, arguments regarding the admissibility of evidence and assisting defendants in receiving trials without unreasonable delay and this is just to name a few.
 
It is important that when considering engaging a criminal lawyer that you ensure your lawyer is fully aware of the recent developments in criminal law and how they can assist or impact your matter. At Potts Lawyers we ensure that all of our lawyers are aware of recent changes in the criminal justice system and how they may impact your matter.
 
If you have been charged with a criminal offence, please do not hesitate to contact our experienced team of criminal lawyers located in Brisbane (3221 4999) and on the Gold Coast (5532 3133) for a free consultation today.
 
Our lawyers travel across Queensland and our firm is available 24/7 on our emergency CRIMELINE (0488 999 980).
The post Human Rights Act appeared first on Potts Lawyers.

When an employee is dismissed from their employment, an important consideration for the parties is determining whether the dismissal was unfair. Failing to consider this factor can lead to issues for an employer and may entitle the employee to compensation.
 
There are particular circumstances where an employer is well within their right to dismiss a person from their employment, which is usually based on justified and well-established grounds for dismissal.
 
In some cases, an employee is might have been dismissed on the basis of unsubstantiated allegations or inappropriate personal reasons.
 
Whatever the circumstance, it is important to note that time limits apply to file an unfair dismissal application.
 
One function of the Fair Work Commission (‘FWC’) is to prevent unfair dismissals, subject to any exceptions as stipulated in the fair work provisions under the Fair Work Act 2009 (Cth) (‘the Act’).
 
The provisions of the Act reflect the enshrined principle of ‘fair go all round’ which ensures that the interests of the employer and employee are balanced.
 
The FWC provides an affordable, accessible and cheaper mechanism to an employee who has been unfairly dismissed, and gives the parties an opportunity to obtain quick relief. The primary goal for the FWC is to reinstate a person’s employment, although this rarely seems to be a viable practical option in most circumstances.
 
Aside from reinstatement, the usual relief is often compensation, which may be agreed upon by the parties or may be ordered by the FWC. In unfair dismissal claims, the maximum amount of compensation a person can received is limited by the Act to 26 weeks.
 
National System Employee Protection Requirements
 
The Act gives specific meaning to employee and employers. For the unfair dismissal protections to apply an employer must be a ‘national system employer’ and an employee must satisfy the definition of a ‘national system’ employee.
 
A national system employee may be entitled to protection under the unfair dismissal provisions of the Act if the employee:
 

has completed the minimum period of employment; and
earns less than the high-income threshold amount per year; or
is governed by a modern award; or
an enterprise agreement applies to their employment.

 
What is Unfair Dismissal?
 
To establish unfair dismissal, a person must satisfy the FWC that:
 

they have been dismissed; and
the dismissal was harsh, unjust or unreasonable; and
the dismissal was not consistent with the Small Business Fair Dismissal Code (if applicable); and
the dismissal was not a case of genuine redundancy (if redundancy was the reason given for the termination).

 
Meaning of ‘Dismissed’
 
The meaning of ‘dismissed’ under the Act occurs if:
 

the person’s employment with his or her employer has been terminated on the employer’s initiative; or
the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

 
However, the Act provides specific circumstances where a person will be held not to have been dismissed for the purposes of the unfair dismissal protections.
 
Criteria to Determine Harsh, Unjust or Unreasonable
 
Once a dismissal is established, the FWC must take into account certain criteria in determining whether a dismissal was harsh, unjust or unreasonable under the Act, including:
 

whether there was a valid reason for the dismissal related to the person’s capacity or conduct;
whether the person was notified of that reason;
whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;
if the dismissal related to unsatisfactory performance by the person whether the person has been warned about that unsatisfactory performance before the dismissal; and
any other matters that the FWC considers relevant.

 
The FWC must take these factors into account to the extent that they are relevant, although they have a wide scope to include matters which they deem relevant.
 
Small Business Fair Dismissal Code
 
The Small Business Fair Dismissal Code only applies to some small business employers. For an employer to be recognised as a small business employer they must not employ more than the maximum amount of employees to qualify as a small business.
 
Genuine Redundancy
 
The Act prescribes that a person’s dismissal was a case of genuine redundancy if:
 

the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

 
A person’s dismissal was not a genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within;
 

the employer’s enterprise; or
the enterprise of an associated entity of the employer.

 
Next Step
 
This article has provided a general overview of the requirements of an unfair dismissal claim. It is not legal advice. If you are bringing or defending an unfair dismissal claim, then we recommend that you obtain independent legal advice to ascertain the prospects of your matter.
 
We offer a free 20 minute consultation to discuss your matter with one our litigation and dispute resolution lawyers.
The post Part I – The Requirements of Unfair Dismissal appeared first on Potts Lawyers.

An application pursuant to s678B of the Criminal Code 1899
 
Last month in a unanimous decision, the Queensland Court of Appeal dismissed an application brought by the Director of Public Prosecutions for an order pursuant to section 678B of the Criminal Code that a person be retried for a murder for which they were previously acquitted. This was the first occasion that a court in Queensland has heard such an application.
 
Brief Background
The respondent was charged with the deceased’s murder. The only issue at the respondent’s 1988 trial was the identity of the killer. The jury acquitted the respondent.  The application arose as a result of further DNA testing (as a result of advance in the field) conducted on a blood stained pillow case found at the scene of the murder, This ultimately lead to a test in March 2015 which returned results that the probability that the DNA sample contained in the pillow case was contributed to by someone other than the respondent was one in 100 billion.
 
The Law
The term “double jeopardy” refers to the principle that a person cannot be charged with an offence for which he has already been convicted or acquitted. Contradicting an earlier verdict by preferring a different charge, such as perjury, is also encompassed by the double jeopardy principle; see the High Court decision in The Queen v Raymond John Carroll [2002] HCA 55 (5 December 2002). T
 
The double jeopardy rule has long regarded as a fundamental principle of the criminal law. The principles underpinning the double jeopardy rules include that a person should not be harassed by multiple prosecutions about the same issue, the need for finality in proceedings, the sanctity of a jury verdict, the prevention of wrongful conviction and the need to encourage efficient investigations.
 
In 2007 the law in Queensland was amended by the Criminal Code (Double Jeopardy) Amendment Act.
 
The objective of the legislation was to:
 

to enable a person acquitted of murder or a lesser offence to be retried for murder if there is fresh and compelling evidence of guilt, and

 

to enable a person acquitted of an offence to be retried for an offence for which the maximum penalty is 25 years or more if the acquittal was tainted by the commission of an administration of justice offence.

 
A retrial can only proceed after a hearing before the Court of Appeal has established that the above-mentioned grounds are made out, and that it will be in the interests of justice to order a retrial.
 
Originally the 2007 amendments only applied to those who were acquitted of murder after the new laws was passed. However, in 2014 further amendments allowed for a second trial where an accused was acquitted prior to the amendments.
 
The Court of Appeal’s Decision
It is clear when reading the Court’s decision that the sanctity of a jury’s verdict is protected by the Court’s application of a stringent test as to whether the respondent should be retried for the murder.
 
Ultimately, to permit a retrial for murder because more (fresh) evidence has emerged when it could have reasonably been obtained for the purpose of the first trial would offend the principle of finality, which requires each party to put forward their best case once and for all. Further, Court requires that the new evidence could have led to a different result. The satisfaction of each of these criteria ultimately demonstrates that a miscarriage of justice has occurred.
 
In this case the fresh evidence (being the retested DNA sample from the pillow case) was required to meet three criteria in order to be considered “compelling”:-
 

that it was reliable;

 

that it was substantial; and

 

in the context of the issue in dispute in the proceedings in which the person was acquitted, it was highly probative in the case against the acquitted person.

 
The Court considered each of these criteria. However the Director of Public Prosecutions failed to satisfy the third as the evidence was not of high probative value.
 
Evidence is relevant if it makes a fact in issue both more or less probable and simply put, “probative value” is an expression which refers to the weight of evidence. If evidence in a proceeding is of high probative value, it goes to the heart of the existence or non-existence of a fact.
In the 1988 trial, the issue in dispute in the proceeding was the identity of the murderer.
 
The ultimate submission by the Director of Public Prosecution was that the pillowcase was intimately associated with the act of killing because of the position in which it was found next to the deceased’s body. The result, was that the respondent must have been present when the deceased was killed and it followed that he was the killer.
 
The issue with this was that it does not include a hypothesis, beyond a reasonable doubt that the DNA was deposited onto the pillow in innocent circumstances. Further, there was no evidence of injury that could have resulted in the deposits of blood on the pillow case by the respondent to support the Prosecution’s theory.
 
The fact that the respondent was present in the deceased home was admitted in the 1988 trial. The fresh DNA evidence relied upon by the Director was not compelling as it all it did was reinforce and admitted fact that the respondent was present in the residence, not that the respondent did an act which constituted the offence of murder.
 
It is extremely important if you are contact or charged by police in relation to murder, manslaughter or any offence where a loss of life of human life is concerned that you contact an expert criminal lawyer immediately. Our lawyers are experienced in these matters and seeking such advice from the absolute earliest opportunity ensures that your position is protected from the very beginning. Where matters such as this arise our lawyers can be contacted through our offices in either Brisbane (07) 3221 4999 or Southport (07) 5532 3133 or on our 24 hour emergency CRIMELINE on 0488 999 980. Our lawyers also travel throughout Queensland.
 

A summary of the Court of Appeal’s decision can be found here:
https://archive.sclqld.org.au/qjudgment/2019/Judgment_Summary_Director_of_Public_Prosecutions_v_TAL_2019_QCA_279.pdf

 

The Court judgment in full can be found here: https://archive.sclqld.org.au/qjudgment/2019/QCA19-279.pdf

The post The law of double jeopardy in Queensland confirmed – Director of Public Prosecutions v TAL [2019] QCA 279 appeared first on Potts Lawyers.

The internet has provided a platform for businesses and individuals to gain greater access to a wider audience and market share by registering a domain name. Some of these businesses and individuals rely on their hard-earned and well-established goodwill to continue to operate.
 
Often domain name disputes arise because someone recognises another business or individual’s goodwill and decides to exploit the goodwill of another in order to obtain a commercial benefit. Other times, domain name disputes arise because a competitor has registered a domain name to disrupt another individual or business and is not necessarily seeking to obtain any commercial benefit from registering the domain name.
 
In any case, the individual or company may be ‘cybersquatting’ on a business or individual’s domain name. It is often important to not ignore cybersquatters as they can not only acquire a commercial benefit, but they may cause damage to an individuals’ or business’ reputation.
 
In other cases, an individual or company may be within their rights to register a domain name which another individual or company is claiming rights over.
 
Domain name disputes are often related to trademark infringement, passing-off or provisions under the Australian Consumer Law.
 
Whatever the reasons behind a domain name dispute, sometimes a domain name dispute can be resolved by making a complaint to the relevant authority. Such complaints are usually of lower cost to the applicant and may be effective in resolving a domain name dispute, or can be made in conjunction with instituting court proceedings.
 
This article focusses on making a complaint to the relevant authority with respect to a domain name dispute. The contents are general in nature and this is not legal advice. It is important to consider that making a complaint may not be the best option in your circumstances.
 
To ascertain the best course of action for your matter, you should speak with a lawyer. We can provide a 20 minute free consultation with a member of our litigation team.
 
Uniform Domain Name Dispute Resolution Policy
 
The Uniform Domain Name Dispute Resolution Policy (‘UDRP’) is the international body that governs domain names with generic top level domains such as domains with ‘.com’ or ‘.net’.  The UDRP provides a mechanism for owners with these types of domain names to protect their legal interests
 
Most trademark domain name disputes must be resolved before the UDRP can apply in order to compel a registrar to cancel, suspend or transfer a domain name.
If a domain name’s registration is abusive then an individual may make a complaint under the UDRP to an approved dispute resolution service provider, subject to certain requirements.
 
Making a Complaint  and Mandatory Administrative Proceedings
 
If a complaint is made by an individual (i.e. the ‘complainant’) in relation to an abusive domain name, then according to the UDRP, a third-party (i.e. the ‘respondent’) is required to submit to a mandatory administrative proceeding if the:
 

Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;

 

Respondent has no rights or legitimate interests in respect of the domain name; and

 

Respondent’s domain name has been registered and is being used in bad faith

 
In the administrative proceeding, the complainant must prove that each of these three elements are present.
 
What is the Element of Bad Faith?
 
The UDRP sets out particular circumstances, without limitation, that would demonstrate the use of a domain name in bad faith, including where the respondent has:
 

Registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or

 

Registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or

 

Registered the domain name primarily for the purpose of disrupting the business of a competitor; or

 

Used the domain name to intentionally attempt to attract, for commercial gain, Internet users to the respondent’s web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on the respondent’s web site or location.

 
The Process of a Mandatory Administrative Proceeding
 
Once a complaint is made, the respondent must provide a response to the complaint within a prescribed period of time.
 
An ‘Administrative Panel’ will then be appointed by the complainant’s chosen dispute resolution service provider, which is usually made up of one or three people to decide the dispute.
 
After a decision is reached, the Administrative Panel notifies the parties and then the registrar will then implement the decision of the Administrative Panel.
 
Australian Dispute Resolution Policy
 
Australia has its own adaption of the UDRP which is known as the .au Dispute Resolution Policy (‘auDRP’).  Importantly, the auDRP only relates to .au domain space and does not relate to generic top level domain.
 
Making a Complaint under the auDRP
 
The complaint process of the auDRP is substantially similar to the UDRP in that a mandatory administrative proceeding is required in applicable disputes because the:
 

Respondent’s domain name is identical or confusingly similar to a name which the complainant has rights;

 

Respondent has no rights or legitimate interests in respect of the domain name; and

 

Respondent’s domain name has been registered or subsequently used in bad faith.

 
Overall, the way complaints under the auDRP are substantially similar to the UDRP.
 
Differences between the UDRP and auDRP
 
Notably, there are some differences between the auDRP and the UDRP in relation to:
 

The auDRP applies to domain name that are identical or confusingly similar to any ‘name’ (as opposed to a trademark or service mark);

 

The complainant would only need to show that the domain name was registered or used in bad faith (as opposed to both);

 

An example of bad faith under the auDRP includes where the complainant has been prevented from registering a trademark or service mark reflecting the corresponding domain name; and

 

The remedy of transferring a domain name is only allowed if the registrar determines that the complainant meets the eligibility and allocation rules for Australia.

 
Next Step
 
The UDRP and auDRP can provide individuals and companies with a cheap, quick and informal solution to domain name disputes.
 
In some cases, this would be ideal and may be useful for the applicant to pursue in order to resolve their domain name dispute.
 
In other cases, it may not be relevant or be as beneficial for an individual or company to make a complaint under the UDRP or the auDRP.
 
This article has provided a general overview of the requirements of a domain name dispute. It is not legal advice. If you are involved in a domain name dispute, then we recommend that you obtain independent legal advice to ascertain the prospects of your matter.
 
To ascertain the best course of action in your circumstance, we recommend that you obtain independent legal advice. We offer a free 20 minute consultation to discuss your matter with one of our litigation lawyers.
The post Domain Name Disputes – An easy option? appeared first on Potts Lawyers.

Queensland Mines Minister Anthony Lynham has announced the intention of the government to introduce new laws in response to the recent spate of Queensland mine deaths – 7 in the past year. An offence of industrial manslaughter will be introduced for the mining sector.
The offence of industrial manslaughter does presently exist in Queensland. However, these laws do not yet apply to the mining sector.
As an example, earlier this year ‘Multi-Run Roofing’ Director, Gary Lavin was found guilty of reckless conduct after a 62 year old roofer died at a worksite in 2014. He was sentenced to a period of 1 year imprisonments, suspended after 4 months and fined $1,000,000.00.
This was the first workplace health and safety trial in Queensland and it highlights the significance of the government’s industrial manslaughter legislation introduced by Work Health and Safety and Other Legislation Amendment Act 2017. It also demonstrates the significant penalties which can be imposed under the regime.
The proposed new laws indicate the critical importance that mine operators and responsible persons (including boards, managers, supervisors and contractors) obtain;

expert legal advice in order to fully understand the potential implications of their conduct and take appropriate proactive measures to implement; and
document all operational practices to comply with workplace safety standards to reduce the risks of injury and death.

Those at risk need to understand both the investigative powers of the state and their rights in this regard.
Industrial Manslaughter in Queensland
In October 2016 the Government announced a best practice review of work health and safety laws as a result of fatalities at Dreamworld and Eagle Farm. These fatalities highlighted the need to ensure the current workplace health and safety framework is responsive to emerging issues.
The Work Health and Safety and Other Legislation Amendment Act 2017 introduced new offences into the Workplace Health and Safety Act 2011. Under the Act there are two streams of the offence – the first being industrial manslaughter with respect to a person conducting business or an undertaking (section 34C) and the second being,  industrial manslaughter in respect of a senior officer (section 34D).
        1.  Person conducting a business or undertaking
Under section 34C of the Act this provision a person conducting a business or undertaking commits an offence if:-

a worker:-

dies in the course of carrying out work for the business or undertaking; or
is injured in the course of carrying out work for the business or undertaking and later dies; and

the person’s conduct causes the death of the worker; and
the person in negligence about causing the death of the worker by the conduct.

The maximum penalties for the provision for an individual is 20 years imprisonment or for a body corporate, a fine of 100,000 penalty units ($10,000,000.00).
        2.  Senior officer
Section 34D provides that a senior officer of a person who carries out a business or undertaking commits an offence if:-

a worker:-

dies in the course of carrying out work for the business or undertaking; or
is injured in the course of carrying out work for the business or undertaking and later dies; and

the senior officer’s conduct causes the death of the worker; and 
the senior officer is negligent about causing the death of the worker by the conduct.

As this provision relates solely to a natural person, the maximum penalty that can be imposed is 20 years imprisonment.
As with most laws, there are various exceptions outlined within the legislation. The existing standard of proof in Queensland for criminal negligence, specifically beyond a reasonable doubt applies and the legislation also makes equivalent amendments to include industrial manslaughter offences in the Electrical Safety Act 2002 and the Safety in Recreational Water Activities Act 2011.
There were also a number of amendments in consideration which were made to the Bill prior to its introduction. These amendments include excluding the availability of the defence of accident provided for in section 23 of the Criminal Code 1899 and that a reference to a worker carrying out work, includes a worker being on their break.
The industrial manslaughter provisions further bolster an employer’s duties to employees under the Workplace Health and Safety Act 2011 and associated legislation. What these amendments attempt to do is widen the scope of liability to ‘senior officers’.  This term is defined incredibly broadly as any person who is concerned with, or takes part in, the corporation’s management, regardless of whether the person is a director or the person’s position is given the name of executive officer.
Response
Mining and related activities are inherently dangerous and accidents occur despite the very best efforts of management.
It is debatable whether the most effective response to the recent spate of deaths is that outlined by the government or whether the focus ought to be on further resourcing the implementation of training and systems to protect workers. However, the reality is that the introduction of potential serious criminal liability for failures of management mean that all involved must take proactive steps – not simply to meet their existing legal obligations but to conduct operations in a manner which will provide protection against potential future prosecution and prepare them for the challenges inherent to an investigation.
The role of the experienced criminal lawyer in these circumstances is one of proactive risk management. Our lawyers are regularly involved in representing clients charged, or at risk of being charged, with such offences.
This article does not constitute legal advice. Any such advice depends on the circumstances of every case. Potts Lawyers offer a free initial consultation to discuss the services we can provide.
 
Article by Cameron Browne, Director
The post Industrial Manslaughter in Queensland   appeared first on Potts Lawyers.

Masson v State of Queensland [2019] QCA 80
Losing a loved family member or friend or seeing them in a seriously disabled condition is devastating and can have long term psychological and financial repercussions.
In cases where a person has died or suffered unnecessarily as a result of another person’s negligence, there is a possibility that significant compensation may flow from that event.
Of course, money cannot take away the pain but it can help ease the financial and other burdens which can ruin the lives of surviving family members and friends. In some cases, there might be a perceived need to ensure that the same events do not reoccur and cause suffering to others.
In some circumstances, the executor of an estate of the deceased may be able to continue or make a claim.
In the matter of Masson v State of Queensland [2019] QCA 80 the appellant was the estate of the late Ms Masson. Ms Masson’s claim survived in the hands of her estate in accordance with the Succession Act 1981 (Qld). The claim in negligence was against the State of Queensland as the provider for the Queensland Ambulance Services (‘QAS’).
This case demonstrates that the QAS can be held vicariously negligent for the actions or inactions of an ambulance officer who is negligent in their duties.
 
Background Facts
Ms Masson was a 25 year old female, suffering from chronic asthma with a life-long history of severe asthma. In 2002, she suffered a severe asthma attack while at a friend’s house and required urgent medical attention. Within a short period of time, ambulance officers arrived at the scene and treated her immediately.
The principal attending ambulance officer observed that her face was blue, she had a low respiratory rate of two breathes per minute, high blood pressure of 155/100, high pulse rate of 150 beats per minute and that she was effectively unconscious.
As part of her treatment, the attending ambulance officer intravenously administered the drug salbutamol. The amount administered was twice the maximum dose recommended by the Queensland Ambulance Services’ Clinical Practice Manual (the ‘Manual’). All ambulance officers are issued and provided with a copy of the Manual for use in the field.
Approximately, 20 minutes later it appeared that her condition did not improve and, while on route to the hospital, she was administered the drug adrenaline and given further doses of adrenaline when she arrived at the hospital.
It was later determined that, when the ambulance officers arrived at the scene, she had already stopped breathing and by the time she had arrived at the hospital she had suffered irreversible brain damage due to being deprived of oxygen.
She died in late 2016 after surviving from 2002 onwards in a vegetative state, receiving around the clock care.
 
Allegations of Negligence by the Appellant
The trial judge rejected the numerous allegations of negligence put forward by the appellant. Interestingly, the trial judge conceded that an earlier administration of adrenaline would have prevented Ms Masson from suffering irreversible brain damage.
However the trial judge held that, in the circumstances, the officers were not negligent in delaying the administration of adrenaline as they did.
On appeal, the appellant continued to press two allegations previously submitted:
1.That the ambulance officers ought to have administered adrenaline immediately ,or at least within a couple of minutes, rather than doing so only 20 minutes later; and
2.Although the ambulance officers were not themselves negligent, they were inadequately trained and instructed by the QAS to deal with an emergency such as this one, with the consequence they did not administer adrenaline earlier.
The second allegation was rejected by the trial judge and the appellant judge on the similar basis that in a case of this kind, it was a reasonable response to administer salbutamol as the officers did, and therefore there was no negligence in not instructing the officers to do otherwise.
 
The Issue before the Court of Appeal
The appellant judge agreed with the trial judge’s findings that if Ms Masson had not reached the point of a respiratory arrest, it was certainly imminent and that if a person stops breathing, cardiac arrest will soon follow (and then death).
Importantly, under the Manual, the ambulance officers were instructed to ‘consider’ the administration of drugs by using sound clinical judgements, based on the potential benefits and adverse effects of the drug. The term ‘consider’ does not imply that a treatment is automatically appropriate for the patent.
The appellant judge took issue with the fact that the trial judge’s attention was not drawn to the parts of the Manual that referred to the timing of the effect of salbutamol and adrenaline.
The Manual included a ‘Drug Data Sheet’ (“the Drug Sheet”) which contained particular facts about adrenaline and salbutamol and described the circumstances in which these drugs should be administered.
For adrenaline, the Drug Sheet indicated that Bronchospasm (i.e. airways of the lungs are constricted) unresponsive to Salbutamol and cardiac arrest were conditions in which the ambulance officer should consider administering the drug.
The impact of adrenaline was described by reference to the time at which it would start to take effect, the time at which the drug would have its peak effect and the duration of its effect. For adrenaline administered intravenously, the “Onset” was said to be 30 seconds, the “Peak” was said to be two minutes and the “Duration” was said to be five to 10 minutes.
As to the timing of the effect of salbutamol, if administered intravenously, it said that the drug had an “Onset” of one to three minutes, a “Peak” of five to 10 minutes, and “Duration” of 10 to 20 minutes.
The primary issue before the court was whether, in the circumstances, the administration of adrenaline was a superior and more effective drug of choice than salbutamol, given that the Manual is a representation of the opinion of the QAS.
 
The Appellant’s Primary Submission
The appellant argued that there was a critical difference between the timing of the effects of the two drugs, which demonstrated the reason for preferring adrenaline in the present case because Ms Masson was at imminent risk of death.
Both the appellant and respondent produced experts who were gave expert evidence. The expert evidence produced by the appellant confirmed that Ms Masson was “really, really close to death” at the time the ambulance officer’s attended the scene.
The appellant judge reviewed the Manual and the Drug Sheet which indicated clear instructions of the quantity of adrenaline to administer to a patient who was suffering from severe bronchospasm with imminent cardiac arrest. Whereas, there was no such reference in the Drug Sheet for salbutamol.
This would mean that for a patient who was at the point of imminent arrest, only adrenaline should be considered, rather than salbutamol, and that only in a less severe case than one of imminent arrest, should salbutamol be considered.
 
The Findings of the Court of Appeal
“The Court of Appeal consider the standard of care owed which should or ought to be owed by an ambulance officer.
In relation to the standard of care, the Court of Appeal found that:
“The difference between the care and skill to be expected of an ambulance officer and that to be expected from a specialist in emergency medicine is significant in a number of ways. The first is that, notwithstanding their training, ambulance officers cannot be expected to make the fine professional judgments which would require the education, training and experience of a medical specialist.
That limitation is recognised by the fact that ambulance officers are provided with the instructions and guidance of something such as the [the Manual]. [The Manual] was significant evidence of a relevant standard of conduct.”
 “Further, again because of the more limited education, training and experience of ambulance officers compared with medical specialists, it would not be consistent with the exercise of reasonable care and skill for an ambulance officer to depart from the guidance of the [Manual]. A substantial issue in this appeal is the scope of the discretion, provided by the flowchart, to “consider adrenaline”.
The exercise of reasonable care required that such consideration actually occur, but consistently with the guidance provided by the [Manual]. A departure from that guidance, with the grave risk that the patient would not avoid serious injury or death, could not be easily justified upon the basis that the officer believed that there was a responsible body of medical opinion which supported that course.
Unlike the medical specialist, the ambulance officer does not have the requisite competence to make their own professional judgment about the merits of competing views within a field of specialised medical practice”
The appellant judge found that the treatment of the attending ambulance officer departed from the prescribed dosages of salbutamol according to the Manual.
The flowchart in the Manual required the officer to ‘consider adrenaline’, not to ‘consider adrenaline or salbutamol’, which means that the flowchart did not suggest salbutamol as an alternative to adrenaline.
The principal attending ambulance officer gave evidence which indicated that the Manual was ambiguous and that there was a mistaken interpretation of the Manual.
The appellant judge noted that if the Manual was ambiguous then it may be suggested that the principal attending ambulance officer was not negligent. However, the appellant judge rejected that the Manual was relevantly ambiguous and that the conduct of the principal attending ambulance officer could not be excused on the basis of a reasonable but mistaken interpretation of the Manual.
Ultimately, it was held that there was not consistent with the standard of care owed to Ms Masson for the principal attending ambulance officer to use a less effective drug for a patient in Ms Masson’s critical condition.
The appellant judge confirmed that the trial judge had erred in not finding the attending ambulance officer negligent in not administering adrenaline at the outset.
The QAS did not challenge that if adrenaline was administered at the outset, the injury to Ms Masson would have been avoided.
Therefore, the appellant judge held the QAS vicariously liable for the attending ambulance officer’s negligence.
In summary, the appellant judge found that:
1.Ms Masson was not treated in accordance with the CPM;
2.The use of adrenaline was not considered by the attending ambulance officer as required by the flowchart
3.If adrenaline was considered at all, it was inconsistent with the Manual to administer twice the permitted dosage of salbutamol in the hope that this would be as effective as the administration of adrenaline;
4.The principal attending ambulance officer was negligent as there was no basis that was consistent with the standard of care owed to Ms Masson, and the attending ambulance officer should have known that salbutamol was a less effective drug for a patient in Ms Masson’s condition; and
5.The amount of damages was agreed at $3 million dollars to be paid to the deceased’s estate.
 
Conclusion
While nothing can really compensate for the loss of a person or their quality of life, this matter should serve as hope that someone might be held accountable for that loss, which may provide some much needed financial support or closure to those  affected.
If you would like to learn how Potts Lawyers may be able to assist you, we offer a free 20 minute consultation to discuss your matter on a confidential and non-obligatory basis.
 
 
 
The post Medical Negligence and Vicarious Liability: Holding the State of Queensland Accountable appeared first on Potts Lawyers.

Introduction
The general protections provisions under the Fair Work Act 2009 (Cth) (the Act) afford certain persons protection from prohibited conduct which would otherwise place an aggrieved person in a disadvantaged position.
Breaches of these provisions primarily go before the Fair Work Commission and can resolve early on at a conciliation conference or may proceed all the way to a hearing. The Fair Work Commission provides a cheaper and quicker mechanism for parties to resolve their dispute which may relate to a dismissal or a non-dismissal issue.
Alternatively, and in some rare cases, it may be appropriate for a breach of a general protection provision to be brought before the Court. The caveat in doing so is that proceedings before the Court may be protracted and the legal fees associated with the proceeding should be carefully considered.
In any case, as general protection provisions can be complex and individual circumstances may vary, it is important that you obtain your own independent legal advice to ascertain the best course of action for your matter.
This article is not legal advice and is merely a general and simplified overview of the general protection provisions under the Act.
We offer a 20 minute free initial consultation to discuss your matter with one of our skilled and competent litigation lawyers.
 
Who is Protected Under the Act?
The Act contemplates the general protections provisions to apply to a variety of persons, including:
1. Employees and Prospective Employees;
2. Employers and Prospective Employers;
3. Independent Contractors and Prospective Independent Contractors;
4. A person ( the principal) who has entered into a contract for services with an independent contractor and a person who proposes to enter into a contract for services with an independent contractor
Employers and Employees are given their ordinary meaning for the purposes of the general protections provisions under the Act. An employer is a person who engages another to work under a contract of employment. Conversely, an employee is a person who works under a contract of employment for an employer.
The definition of an independent contractor is technical and is based on many factors, including hours of work, superannuation, tax and method of receiving payment. While one factor alone is not conclusive of a person being an independent contractor, a fundamental aspect of an independent contractor is that they are providing a service to the principal while working in their own business.
A prospective person refers to future, potential or to an expected person who is likely to be engaged to perform work by another person. This means that a general protection may be owed to a employee who is likely to be considered by the employer for the work that they are applying for.
 
Adverse Action
As discussed below, some of the general protections provisions under the Act refer to ‘adverse action’ in relation to a person and another person (e.g. an employee and employer).
Adverse action of an employer against an employee may include:

dismissing the employee;

injuring the employee in the course of their employment;

prejudicing the employee by altering their employment; or

discriminating between employees that are employed by the employer.

 
Adverse action of an employee against an employer may include:

ceasing work in the service of the employer;

taking industrial action against the employer.

 
Adverse action of a principal against an independent contractor may include:

terminating the contract;

prejudicing the independent contractor’s position;

refusing to make use of, or agree to make use of, services offered by the independent contractor;

refusing supply, or agree to supply, goods or services to the independent contractor.

 
Adverse action of an independent contractor against a principal may include:

ceasing work under the contract; or

taking industrial action against the principal.

 
Generally, the Act prohibits conduct which would amount to adverse action, although this is subject exceptions.
 
What Are the General Protections under the Act?
There are various general protection provisions under the Act, and this article will focus on the most common general protections.
The protections can be categorised as follows:

Protections relating to workplace rights;
 Freedom of Association;
 Other protections; and
 Sham arrangements.

 
Workplace Rights
In short, for a workplace right to exist it can only exist according to a workplace law or a workplace instrument that governs the relationships between employees and employers. Under the Act, a person must not take adverse action against another person because the other person:

Has a workplace right;

Has or has not exercised a workplace right; or

Proposes to or proposes not to exercise a workplace right.

For example a workplace right could include but is not limited to:

Occupational health and safety matters;
Worker’s compensation;

Modern award or enterprise agreement;

Making a complaint or inquiry about a person’s employment.

In addition, a person has further workplace rights and protection in relation to being free from:

Coercion;

Undue influence or pressure; or

Misrepresentations

 
Freedom of Association
The Act provides protection for a person’s right to engage or not to engage in certain industrial activities or associations.  Under the Act, a person must not take adverse action against another person because the other person:

Is, is not, was, or was not an officer or member of an industrial association; or

Engages or does not engage in an industrial activity within the meaning of the Act.

In addition, a person has further freedom of association protections in relation to being free from:

Coercion;

Misrepresentations; or

Inducements (membership action)

 
Other Protections – Discrimination
An employer must not take adverse action against a person who is an employee of the employer because of:

Race;
Colour;
Sex;
Sexual orientation;
Age;
Physical or mental disability;
Marital status;
Family or Carer’s Responsibilities;
Pregnancy;
Religion;
Political opinion;
Nation extraction; or
Social origin.

The list above is not exhaustive. There may be technical differences when compared to anti-discrimination legislation in seeking this protection order as the overarching theme of the Act in relation to general protection orders pertains to adverse action (and not the discrimination itself as such).
For example, if an employer makes a conscious decision to discriminate between people because one or more of the reasons set out above, an employee may be entitled to seek this general protection order, however this is subject to exceptions under the Act.
This protection does protect adverse action that is:

Not unlawful under any anti-discrimination law in force in the place where the action is taken;

Taken because of the inherent requirements of the particular position concerned; or

Taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:

1. In good faith; and
2.To avoid injury to the religious susceptibilities of adherents of that religion or creed.
 
Other Protections – Temporary Absence
An employer must not dismiss an employee because the employee is temporarily absent from work because of an illness or injury as prescribed under the Fair Work Regulation 2009 (Cth).
In short, this protection may only apply if the employee satisfies at least one of the ‘substantiation requirements’ with respect to:
1.The employee providing a medical certificate or statutory declaration about the illness or injury within 24 hours after the commencement of the absence or such longer period as is reasonable in the circumstances; or
2. In accordance with the terms of a workplace instrument, the employee notifies the employer of an absence from work and substantiates the reason for the absence; or
3. If the employer requires the employee to give evidence to the employer that would satisfy a reasonable person that the leave is taken because the employee is not fit for work because of a personal illness or personal injury affecting the employee.
 
Sham Arrangements – Misrepresenting Employment as Independent Contractor
An employer must not make representations to a person that they offering a position as an independent contractor (i.e. contract for services) when the position and the relationship is actually one of an employee and employer (i.e. contract of employment).
For example, an employer must not direct a person to get an ABN or register themselves as their own business before commencing working for the employer as an independent contractor.
Although, this protection is subject to exceptions and this protection does not apply if the employer proves that, when the representation was made, the employer:
1. Did not know; and
2. Was not reckless as to whether the contract was a contract of employment rather than a contract for services.
 
Sham Arrangements – Dismissing to Engage As Independent Contractor
An employer must not dismiss, or threaten to dismiss, an individual who:
1.Is an employee of the employer; and
2.Performs particular work for the employer in order to engage the individual as an independent contractor to perform the same, or substantially the same, work under a contract for services.
For example, an employer cannot dismiss an employee with the intent to re-engage the employee as an independent contractor because it may be cheaper for the employer to do so.
 
Sham Arrangements – Misrepresentation to Engage As Independent Contractor
An employer must not make a statement to an employee, whether currently or previously employed, that the employer knows is false in order to persuade or influence the individual to enter into a contract for services under which the individual will perform, as an independent contractor, the same, or substantially the same, work for the employer.
In short, an employer cannot knowingly make a false statement to an employee which would persuade or influence an employee to become an independent contractor to perform the same work.
 
Rebutting the Presumption as to Reason or Intent
 Under the Act there is a presumption that if it is alleged that a person took action for a particular reason or with a particular intent, it is presumed that the person has taken the action for the alleged reason or with the alleged intent unless proven otherwise.
For example, in the context of an employer and employee, if it is alleged that an employer dismissed an employee because the employee exercised a workplace right, once it is established that the dismissal occurred and the employee exercised a workplace right, it is presumed that the dismissal occurred because the employee exercised a workplace right.
The employer must prove otherwise to rebut his presumption.
 
Conclusion
The general protection provisions under the Act afford a wide variety of protections to different persons in certain circumstances, subject to some exceptions.
The Fair Work Commission provide a cheaper and quicker process if a general protection provision is breached under the Act. Although, in some cases it may be necessary or appropriate to bring the breach of a general protections provision before the Court.
As aforementioned, in any case, as general protection provisions can be complex and individual circumstances may vary, it is important that you obtain your own independent legal advice to ascertain the best course of action for your matter.
This article is not legal advice and is merely a general and simplistic overview of the general protection provisions under the Act.
 
The post Fair Work Commission General Protection Provisions appeared first on Potts Lawyers.

The Transport Operations (Road Use Management—Driver Licensing) Regulation 2010 governs Special Hardship Orders. This regulation has recently been amended.
For those wishing to apply for a Special Hardship Order, it is important to understand how these changes may affect you.
 
Change 1 – Removal of 21 Day Time Limit
Prior to 1 April 2019, eligible drivers had 21 days from the date of their suspension to apply for a Special Hardship Order. This restriction has now been removed to allow drivers to apply for a Special Hardship Order at any time during their suspension period.
This amendment takes into account the fact that circumstances can change throughout the suspension period. The removal of the time limit allows applications to be made when a person becomes eligible for a Special Hardship Order, regardless of how much of the suspension has been served.
If you are currently serving a suspension period (for the accumulation of demerit points or a high speed offence) and think you may be eligible for a Special Hardship Order, contact our office to arrange a conference.
 
Change 2 – Removal of Demerit Points Allowance
As of 1 July 2019, drivers on a Special Hardship Order are unable to accumulate any demerit points. If they do so, the driver will be subject to a suspension period of double the original suspension period.
For example, if the original suspension period was 6 months, the accumulation of demerit points will result in a 12 month suspension.
Previously, the demerit point threshold for drivers on a Special Hardship Order was 3.
 
Will These Changes Apply To Me?
Both changes will apply to all drivers making an application for a Special Hardship Order from 1 July 2019.
If you are currently on a Special Hardship Order and want to know whether these changes apply to you, we strongly recommend obtaining specific advice.
 
Seek Legal Advice
While this article is intended to provide you with a guide of the general principles that operate in Queensland, it is not to be considered legal advice and may not cover important aspects that apply to your individual circumstances.
If you want to apply for a special hardship order or are unsure if you are eligible, you should seek our advice.
 
 
The post Important Changes to Special Hardship Order Applications appeared first on Potts Lawyers.

Last week, on 26 July 2019, convicted murderer Faruk Orman, walked free after serving 12 years in prison. His conviction was overturned following shocking revelations that his barrister, Lawyer X (aka Nicola Gobbo) was providing information to police that led to his ultimate conviction.
The Victorian Court of Appeal held that the information provided by Ms Gobbo led to a contamination of his case and found that the conviction was a “substantial miscarriage of justice”. This is the first conviction to be overturned by the Court of Appeal in Victoria since the start of the Royal Commission. Sadly, though, it is unlikely to be the last.
The legal profession and the public alike were left stunned earlier this year when it came to light that Ms Gobbo, while representing some of the most high-profile criminal underworld figures, was simultaneously acting as a long-term police informant. What is perhaps most shocking is that some of the information she provided to police was in relation to her very own clients, in breach of legal professional privilege and her duty of client confidentiality.
The Royal Commission into the Management of Police Informants is still ongoing in Melbourne, however the evidence that has emerged during the Commission has taught us one very powerful lesson so far.  That is, that wrongful convictions can and do still occur in Australia to this day, notwithstanding the safeguards that our justice system offers.
Police informants are just one of many factors that can result in a person’s wrongful conviction. What is unfolding during this Royal Commission in Victoria should serve as a reminder that informant evidence in criminal cases must be treated with the utmost caution. This is particularly the case where there is no other concrete evidence.
In criminal justice proceedings in Queensland (and in most other Australian jurisdictions), all relevant material must be disclosed to an accused to enable them to understand, test and challenge the police case against them.   However, this right to information does not apply to evidence from police informants.  There is a veil of secrecy that covers this information. The details surrounding who the informant is, the circumstances in which they provided information to police, what they stood to lose or gain, and therefore what motivation there is for them to lie are often left only in the police’s hands.  Those accused of crimes are often left incapable to know, test, or challenge the credibility of informant evidence used against them.  The secretive nature of the informant system renders cross-examination and other legal safeguards against unreliable testimony largely ineffective.
Making matters worse, informants are often afforded leniency in their own cases in exchange for the information they provide police (particularly if it assists in the securing of convictions).  The reality is, the promise or expectation of possible benefits from the police creates a strong incentive for an informant to lie or provide misleading information.  When they do lie, they undermine the integrity and the truth-seeking function of our criminal justice system.  However, the laws around police informants don’t provide any assistance.  Instead, they leave an accused in the dark unable to fully understand and test the evidence against them.  Consequently, we are none the wiser as to whether the informant is in fact telling the truth or not.
This is why transparency in the law is crucial. For far too long, the world of police informants has been an evidentiary black hole. While this remains the case, accused people are at risk of unfair trials and wrongful convictions. We hope that the Royal Commission leads to sensible reforms that all the States and Territories in Australia can and do adopt.
If the police case against you contains evidence from a police informant, it is vital that you obtain expert advice.  Our criminal lawyers have a wealth of experience in handling cases with informant evidence and devising strategies that will assist you in your case.
The post How Informant Evidence can Prevent Justice and Lead to Wrongful Convictions appeared first on Potts Lawyers.

In the High Court matter of Wehbe v Minister for Home Affairs [2018] HCA 50 the court upheld the delegate of the Minister’s decision to refuse a visa applicant on the basis of a bogus document pursuant to the Migration Regulations 1994 (Cth) (‘the Regulations’) Schedule 4 Public Interest Criterion 4020.
There are important lessons from Wehbe for visa applicants who are required to satisfy Public Interest Criterion 4020. We provide some equally important key takeaways of this case further below.
In our article Everything you need to know about public interest criterion 4020 we discussed the requirements of Public Interest Criterion 4020.  We also discussed important definitions in relation to providing bogus documents or information that is false or misleading to the Minister or their delegate, and when the Minister or their delegate will waive the requirements of Public Interest Criterion 4020.
 
Recap – The Elements of Public Interest Criterion 4020
 
 Requirements of Public Interest Criterion 4020
Pursuant to Schedule 4 criterion 4020 of the Regulations, the Minister or their delegate may refuse a person’s visa application if:

Bogus documents or information that is false or misleading is fraudulently provided to the Minister in relation to the application for the visa or a visa that the applicant held in the period of 12 months before the application was made; or
The Minister is not satisfied with respect to the applicant’s identity.

 
Definition of a Bogus Document
 Section 5 (1) of the Migration Act 1958 (Cth) (‘the Act’) defines a bogus document as a document that the Minister reasonably suspects is a document that:

Purports to have been, but was not, issued in respect of the person;
Is counterfeit or has been altered by a person who does not have authority to do so; or
Was obtained because of a false or misleading statement, whether or not made knowingly.

 
Definition of False or Misleading
 Information that is false or misleading in a material particular is defined under the Regulations as:

False or misleading at the time it is given; and
Relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

 
The Discretion to Waive the Requirements of Public Interest Criterion 4020
The Minister or their delegate may only waive the requirement of a bogus document or information that is false or misleading if satisfied that:

There are compelling circumstances that affect the interests of Australia; or

Compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen.

 
Wehbe v Minister for Home Affairs [2018] HCA 50
 
Background of Matter
 The plaintiff applied for a partner visa in 2016 and engaged a migration agent who was authorised to act on her behalf with the Department of Home Affairs. In the plaintiff’s application, she stated that she was a citizen of Iran, was currently engaged, and expected to be married in June 2017. She declared that she was previously married in March 2014 and that it had ended in April 2015.
A delegate of the Minister requested that the plaintiff provide “evidence that [her] relationship has ended with [her] former spouse or de facto partner.”
The plaintiff provided the Department with a copy of her current marriage certificate, evidencing the marriage in June 2017, however the certificate recorded her conjugal status as “Never Validly Married”.
The plaintiff’s migration agent sent an email to the Department of Home Affairs after misinterpreting the plaintiff’s instructions, stating that:
 
“Regarding the applicant’s previous marriage, the divorce order is still in progress in Iran’s official authorities.”
 
The Minister’s delegate responded to the plaintiff and drew attention to the discrepancies of the information and documents provided, claiming that the marriage certificate suggests that the plaintiff provided false and misleading information, and required the plaintiff to provide a response within 28 days.
The migration agent responded on behalf of the plaintiff apologising and correcting the misstatements in further correspondence by stating that:
 
“The applicant was not able to receive the divorce order documents because she was not able to travel to Iran. A copy of the applicant’s birth certificate which is annotated by the divorce comments and also the legal divorce order by Iranian authorities.”
 
The Minister’s delegate  refused to grant the visa to the plaintiff, for providing bogus documents because it was obtained on the basis of false and misleading information and therefore has not satisfied the requirements of Public Interest Criterion 4020. Moreover, because the migration agent failed to address the discretion to waive Public Interest Criterion 4020, the refusal was upheld.
Subsequently, the migration agent erroneously stated to the plaintiff that there was a 35 day prescribed period to apply for merits review in the Administrative Appeals Tribunal, which in fact, the prescribed period was 21 days.
The plaintiff only became aware of the actual prescribed period upon making her own inquiries which was ultimately too late as the 21 days had lapsed. The Administrative Appeals Tribunal confirmed that the plaintiff was unable to perform merits review of her matter because the Tribunal was out of time and therefore lacked jurisdiction.
The matter progressed to the High Court of Australia for judicial review, where the plaintiff sought equitable remedies and relief in light of her position. We discuss the topics of merits review and judicial review in our article: Appealing a Visa Refusal or Visa Cancellation – Merits Review and Judicial Review.
 
Ground for Judicial Review
The plaintiff’s principal ground for judicial review was before the High Court for judicial review on the basis that:

 The misstatement constituted fraudulent information and the delegate of the Minister’s decision is tainted by the fraud of the migration agent.

 
 To enliven this ground, the plaintiff further submitted that:

While representing the plaintiff, the migration agent made a series of errors;

 The plaintiff was poorly represented by the migration agent whose error included a misstatement to the delegate of the Minister; and

 The errors of the migration agent deprived the plaintiff from the possibility of merits review in the Administrative Appeals Tribunal.

 
The High Court’s Discussion
 Interestingly, the High Court observed that:
“There was an insurmountable obstacle to the application, [namely that] there was no reasonable inference that the plaintiff’s agent engaged in fraud, and that the natural and only reasonably inference is that the plaintiff’s agent made a mistake.”
 The plaintiff asserted that her migration agent fraudulently intended to represent that the plaintiff was still married. This assertion was negated in light of the correspondence provided by the migration agent in which the migration agent corrected the misstatement to the delegate of the Minister.
 
The High Court found that:
“Even if the agent’s mistake was one of understanding rather than expression, there is no reasonable prospect of a conclusion that the mistake was fraudulent. The absence of any reasonable prospect of the plaintiff being able to prove fraud means that the application for constitutional writs of mandamus and prohibition, together with a writ of certiorari or a declaration that there was no valid visa application, must be dismissed.”
The Minister submitted further legal argument in relation to relief by a constitutional writ under the Constitution which relates to a privative clause decision:
“Other than in exceptional circumstances [will] relief generally require the error to be one that was “material” in the sense that it deprived the plaintiff of the possibility of a successful outcome.”
 “The plaintiff did not submit that the alleged fraud was so pervasive, or that there was any other exceptional circumstance, as to justify a conclusion of jurisdictional error despite the lack of materiality in this sense. The issue is whether the erroneous misstatement in [the migration agent’s] email was material.”
 
The High Court further observed:
“Since the error by the plaintiff’s agent could not reasonably be shown to be fraudulent there is no error capable of establishing the ground of judicial review.”
“One manner of expressing the test of materiality is akin to the approach taken in criminal appeals to whether a miscarriage of justice is substantial.  Other than in exceptional cases where a substantial miscarriage of justice arises irrespective of the materiality of the error the question is whether the same result was ‘inevitable’.
 “Ultimately, I do not consider that any misstatement by the agent, even if fraudulent, deprived the plaintiff of the possibility of a successful outcome.  The result would inevitably have been the same irrespective of the misstatement by the plaintiff’s agent.” 
  
The High Court’s Analysis of Wehbe
“A decision to approve the visa based on satisfaction of public interest criterion 4020 required the delegate to have no reasonable suspicion that the Marriage Certificate was obtained because of a false or misleading statement. 
The delegate concluded that the Marriage Certificate was a bogus document because it was ‘obtained on the basis of false and misleading information provided about [the plaintiff’s] conjugal status’. 
That false and misleading information must have been the information that led to the recording of the conjugal status on the certificate as ‘Never Validly Married’. 
 “As the plaintiff’s counsel properly conceded at the oral hearing, the Marriage Certificate was a bogus document. 
The only basis to avoid the conclusion that the delegate’s decision was inevitable could be if there were a possibility that, without the misstatement by the agent, the delegate, acting reasonably, would have waived public interest criterion 4020. 
To establish that possibility in this case, it would be necessary to conclude that the agent’s misstatement could have prevented the delegate from finding “compassionate or compelling circumstances that affect the interests of an Australian citizen”. 
But the misstatement by the agent was unconnected with the rationale for the delegate’s decision.  Its absence could not have militated against the decision or otherwise illustrated compassionate or compelling circumstances. 
The delegate’s decision had turned only upon the Marriage Certificate being a bogus document.  The 24 March 2018 email from the agent, to which the delegate referred in the reasons, was relevant to that conclusion only because it contradicted the Marriage Certificate by reiterating that the plaintiff had a “previous marriage” and referring to a “divorce order” in progress”.
 
Conclusion of Wehbe
 The High Court ultimately dismissed the plaintiff’s application for judicial review:
“An extension of time is required for this application.  Since the application has no reasonable prospect of success, I do not consider that it is necessary in the interests of the administration of justice to extend time. The plaintiff’s application for an order extending time under s 486A(2) of the Migration Act 1958 (Cth) is therefore refused. The application for an order to show cause filed on 21 August 2018 is dismissed with costs.”
 
Key Takeaways

First and foremost, when applying for a visa, the applicant and their advisor should always ensure that the document or information is true and correct before submitting any application or providing the document or information to the Minister or their delegate.

 

If the visa applicant did not submit bogus documents or information capable of being false or misleading, the visa applicant could have avoided the need for court intervention.

 

While the matter of Wehbe is not unique or special, it serves as an important warning for visa applicants of the consequences of not satisfying the requirements of Public Interest Criterion 4020.

 

Migration agents, who are not also lawyers, generally only offer a limited scope of work and may not have the requisite knowledge or training to protect your legal interests.

 
Our Director of Litigation and registered migration agent, Craig DoRozario (MARN 1910298) has a wealth of experience and knowledge in civil matters and offers a full service in relation to your visa application and legal interests.
If you would like a free twenty (20) minute initial consultation to discuss your matter with Craig DoRozario and how we might be able to protect your interests, please contact our office on (07) 5532 3133.
The post Public Interest Criterion 4020: Lessons from Wehbe v Minister for Home Affairs appeared first on Potts Lawyers.

The commencement of litigation is generally viewed as the ‘last resort’ in a dispute and connotations which are implicitly conveyed often flow to the other party which are analogous to a UFC match when the contenders enter the octagon and the announcer says: it’s…time…
While it can be viewed as the only remaining option, in most civil matters where parties are represented, the matter will not go forward to a full trial in the courts. Most parties will reach a settlement which can be achieved by numerous means and is often in the best interests of everyone involved, and may also save costs.
It is no secret that litigation in general is a timely and expensive exercise, and for most people, costs are one of the central considerations. If a civil dispute escalates to litigation, the associated legal costs also increase which often leads to our clients asking whether any of the costs associated with the proceeding are recoverable.
The reality of litigious matters is that the vast majority of successful parties will not recover all their legal costs, and may recover only some of their legal costs incurred during the various stages of litigation. Notably, there are ways of maximising your chances of recovering all your costs.
If you would like to discuss your litigious matter with our office, we offer a twenty (20) minute obligation-free consultation to discuss your matter on a confidential basis.
This article will provide a general overview of when a civil matter goes to trial and costs orders are awarded in the Magistrates, District and Supreme Court of Queensland. Cost orders of other courts and jurisdictions may vary.
This article is not legal advice, and should not be construed as legal advice by the reader. If you require legal advice in relation to your litigious matter, please seek independent legal advice that is specific to your circumstance.
 
Costs Orders Generally
The rationale behind awarding costs to the successful party is not to penalise the unsuccessful party, rather it is to enable the successful party to recoup, at least, some of their legal costs.
The Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) govern civil litigation, including cost orders.
Rule 680 provides that a party may only recover costs if it is ordered by the court or expressly stated under the UCPR. Costs awards are always up to the discretion of the Court and cannot be guaranteed.
In most cases, costs will be awarded under the UCPR unless unusual or particular circumstances require the court to make an order.
Rule 682 (1) states that the court may award costs at any stage of the proceeding (i.e. the cost of applications made throughout the proceeding) or after the proceeding ends, and rule 682 (2) allows the assessment of costs to occur when the proceedings end.
The general rule of costs under rule 681 ultimately empowers the court with discretion in relation to the costs of a proceeding, including an application in a proceeding that ‘follow the event’ unless the court orders otherwise,
In other words, the successful party will generally be awarded some of their legal costs unless the court orders otherwise and subject to exceptions of this general rule.
 
The Exceptions to the General Rule of Costs Orders
There are various grounds and sets of circumstances where the Court will exercise their discretion to order a cost order which is inconsistent with the general rule. The following is not an exhaustive list and is indicative only:

Self-represented litigants are usually not entitled to costs, however there is authority to suggest that a lawyer who is a self-represented litigant may be awarded costs.

 

Costs may be awarded to an unsuccessful party where the other parties conduct does not seek to reasonably limit or mitigate the other party’s costs.

 

Rule 697 applies where a matter commenced in the Supreme Court and the matter could have brought before the Magistrates Court or District Court. In this respect, the costs for the plaintiff may be assessed as if the proceeding started in the Magistrates Court or District Court unless the court orders otherwise.

 

If the litigation was brought because of the public interest and satisfies the element of public interest.

 

In certain circumstances, costs against non-parties to a proceeding may be awarded if the courts consider the non-party to be intrinsically connected to the proceeding.

 
Costs Orders Involving Multiple Parties or Issues
Another express exception of the general rule of costs is under rule 684 where there are multiple parties or issues involved in a proceeding. The court may make an order for costs in relation to a particular question or a particular part of a proceeding.
If a person is successful against one party and not the other, the person will generally be given costs from the former and not the latter.
The court may issue a ‘Bullock Order’ which orders the plaintiff to pay the successful defendant’s costs and the unsuccessful defendant must pay the plaintiff’s costs
The court may also issue a ‘Sanderson Order’ which orders the unsuccessful defendant to pay the successful defendant directly.
 
Assessment of Cost Orders
Costs awarded under the UCPR are assessed by the registrar or a costs assessor based on the respective court’s ‘scale of costs’.
Rule 686 allows costs, without an order, to be assessed if:

The court orders a party to pay another party’s costs; or
Under these rules, a party must pay another party’s costs; or
Under a filed written agreement, a party agrees to pay to another party costs under these rules.

 
Court Ordered and UCPR Cost Orders
Under Rule 687 of the UCPR, the court may order a party to pay to another party:

A specified part or percentage of assessed costs;
Assessed costs to or from a specified stage of the proceeding;
An amount for costs fixed by the courts; or
An amount for costs to be decided in the way the court directs.

 
Costs under the UCPR will either be awarded on a Standard Cost or an Indemnity Cost basis.
 
Standard Cost Basis
This form of cost order is the usual cost awarded in litigation and is often referred to as ‘party and party costs’ or ‘scale costs’.
Rule 702 (2) of the UCPR stipulates that when assessing costs, a cost assessor must allow all costs necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being assessed.
Determining whether costs are necessary or proper requires the party to establish that it was reasonable to have incurred those costs.
A litigant that receives costs on the standard basis will generally recover approximately 50% of their actual legal costs spent. Although the range could be estimated between 30% to 70%, depending on the court scale applicable.
 
Indemnity Cost Basis
Indemnity costs are not often awarded and will apply only in special circumstances.
Rule 703 of the UCPR states that when assessing costs on the indemnity basis, a cost assessor must allow all costs reasonably incurred and of a reasonable amount, having regard to:

The scale of fees prescribed for the court; and
Any costs agreement between the party to whom the costs are payable and the party’s solicitor; and
Charges ordinarily payable by a client to a solicitor for the work.

 
A litigant may be awarded indemnity costs if they make a formal offer for settlement under the UCPR which is rejected by the other party, and the Court orders a cost order that exceeds the formal offer.
A litigant will generally recover more than they would on a standard basis, which could be up to 80% of costs.
 
Conclusion
Whether you are the litigant who brought the proceeding or the litigant that is defending the proceeding, the common issue between the parties (apart from the dispute itself) is costs, and how and when costs can be limited or mitigated by the parties involved.
That is not to say that litigants need to be principally concerned with costs of the other party or parties, however litigants should take reasonable steps with minimising and reducing costs where possible.
While costs are one of the central considerations for most litigants, before, during and after a proceeding, engaging a lawyer to assist in litigation or in your dispute may be in your best interests.
It is an important part of litigation strategy to minimise your own legal costs and to put yourself in the best possible position to have a portion or all of your legal costs paid by the other party.
If you would like to discuss your litigious matter with our office, we offer a twenty (20) minute obligation-free consultation to discuss your matter on a confidential basis.
The post Costs in Civil Litigation appeared first on Potts Lawyers.

A person’s visa may be refused or cancelled under various grounds pursuant to the Migration Act 1958 (Cth) (the Act).  Depending on the person’s circumstance and whether the person’s visa refusal or visa cancellation was valid or not, there may be a right to appeal the decision.
Generally, among other things, a valid Notice of Refusal of Application or Notice or Cancellation will state whether the application for a visa is a reviewable decision or not, and will usually specify a strict time period if the decision can be appealed.
To ascertain whether the respective notice is valid and/or whether the decision is reviewable, we recommend that you immediately seek legal advice because of the strict limits that apply. We offer a free twenty (20) minute consultation to discuss your matter with our Director of Litigation and registered migration agent, Craig DoRozario (MARN 1910298).
 
Common Grounds for Visa Refusal or Visa Cancellation
Section 501 of the Act empowers the Minister to refuse or cancel a person’s visa based on character grounds.
Similarly in Section 501CA, and as previously discussed in >Visa Cancellations and Criminal Convictions – How does a criminal conviction affect my visa status?< a person may seek to revoke the Minister’s decision to cancel their visa due to a criminal conviction. Other common grounds of visa cancellation include: Providing incorrect, fraudulent or otherwise bogus information; Breaching visa conditions; Health, safety or good order of the Australian community or of an individual; and Breaching visa holder requirements of a business, student or employment visa. Nevertheless, a person may have a right to appeal the decision and have their matter reviewed under merits review or judicial review.   What is Merits Review? The Administrative Appeals Tribunals (AAT) has general authority to review decisions made by the ministers, delegates or departments of the Australian Government.  However, there are specific circumstances where the AAT is not permitted to review a decision, and if the decision is reviewable, it may only be reviewed under judicial review. The AAT can perform a merits review of the decision which involves afresh findings of fact, law and policy that relate to the decision that led to the visa refusal or cancellation. The AAT may either: Affirm the decision; Vary the decision; Remit the matter to the original decision-maker ; and Set the decision aside and substitute a new decision. In most cases, there are strict time limits to apply for merits review in the AAT, and importantly, the AAT is not obligated to provide a further extension of time to appeal unless otherwise agreed. After filing an application to appeal the matter in AAT, the AAT will provide a response to the person with an explanation of the process involved after filing an application.   Telephone Directions Hearing Generally, within one (1) or two (2) weeks of the AAT receiving the person’s application they will conduct a Telephone Directions Hearing between a Member of the AAT, the person and their representative, and the Minister’s representative. The appointed member of the AAT will discuss the person’s matter with the parties and may request further information from the parties or elect to hold another Telephone Directions Hearing. The purpose of a Telephone Directions Hearing is to discuss the matter with a view to reach a resolution that generally favours the person who is appealing the decision prior to a hearing in the AAT.   The Hearing in the AAT Section 33 of the Administrative Appeals Tribunal 1975 (Cth) requires the Hearing at the AAT to be held with as little formality and technicality as permitted, and to expedite the matter where possible.  As such, the hearing will be conducted in a hearing room which looks similar to a court room, but with much less formal requirements. The normal rules of evidence do not apply to the AAT, however there are applicable rules under Minister’s Direction No. 79 which will permit the parties to provide evidence and or produce witnesses to demonstrate their respective cases. A decision may or may not be reached at the Hearing, and if a decision is not reached at the Hearing then the parties will be contacted once a decision is reached.   What is Judicial Review? The Federal Circuit Court of Australia has original jurisdiction and the same jurisdiction as the High Court of Australia to perform judicial review on certain migration and migration matters made pursuant to the Act.  The Federal Circuit Court can only review a decision if a ‘jurisdictional error’ has been made by the decision maker which relates to an error of law. Unlike merits review, judicial review does not: Reconsider the findings of the facts, law and policy; Admit new factual information (unless it is relevant to the jurisdictional error); or Grant a person a visa. Rather, the purpose of judicial review is to determine whether an erroneous finding or mistaken conclusion was reached by the decision maker because of an error law. Some common examples of errors of law include the decision maker: Failing to apply procedural fairness; Failing to take into account relevant considerations or materials; Taking into account irrelevant considerations or materials; Failure to observe the procedures required by law; or Exercising an improper or absent jurisdiction that they are not empowered to exercise;   Nevertheless, if the Federal Circuit Court determines that there is a jurisdictional error, your matter will be referred back to the decision maker and the Minister will be prevented from acting on the original decision.   Judicial Review in the Federal Court of Australia The Federal Court will have original jurisdiction to perform judicial review in limited and prescribed circumstances. Section 476A of the Act provides the Federal Court of Australia (FC) with original jurisdiction to review migration decisions only if: the Federal Circuit Court transfers a proceeding; the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal; the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA; or the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975 .   What is ‘Privative Clause’? The purpose of a ‘privative clause’ in migration law is to exclude the possibility of judicial review by the courts of certain decisions. Section 474 (1) of the Act defines a privative clause decision as: Final and conclusive; Must not be challenged, appealed against, reviewed, quashed or called in question in any court; and Not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. The Act provides a broad range of decisions that could constitute a privative clause and certain decisions that are not a privative clause. Nonetheless, because of section 75 of the Australian Constitution and as established in Plaintiff S157/2002 v Commonwealth of Australia (2003), the government cannot prevent judicial review of a jurisdictional error.   Time Limits of Judicial Review There are strict time limits to apply for Judicial Review under the Act. It is imperative that you seek independent legal advice to file an application for judicial review within the prescribed time limit. As aforementioned, we offer a free twenty (20) minute consultation to discuss your matter with our Director of Litigation and registered migration agent, Craig DoRozario (MARN 1910298).   Other Legal Avenues Depending on your circumstance, you may be entitled to file a complaint with another relevant government body which can be filed parallel to an application for merits or judicial review. We recommend that you act as soon as possible and contact a lawyer who can advise you on your options.   Please note that this advice is for general background information only and is not intended as a legal advice you can rely on. To obtain legal advice you can rely on you must contact a lawyer who can provide advice on your matter.   The post Appealing a Visa Refusal or Visa Cancellation – Merits Review and Judicial Review appeared first on Potts Lawyers.

The commonality between whether a person is removed or deported from Australia is that in both cases they are forcibly removed from Australia. There are important distinctions and applications between the two mechanisms available to the Minister and the Department of Home Affairs.
In short, removal is an automated process when an unlawful non-citizen is held in immigration detention and has failed to satisfy strict statutory requirements.
Deportation requires a specific deportation order to be made against an Australian permanent resident pursuant to the Migration Act 1958 (Cth) (the Act)
In either case, a person will usually be interviewed prior to being removed or deported from Australia, which can occur while a person is imprisoned.
 
Powers to Detain an Unlawful-Non Citizen
Section 189 of the Act states that if an officer knows or reasonably suspects that a person is an unlawful non-citizen, the officer must detain the person.
An unlawful non-citizen is a person who does not hold a valid or current visa or is not an Australian citizen.
Generally, the person will be held in immigration detention until they are removed from Australia or are granted a visa. Unlawful non-citizens may only apply for certain visas as prescribed by the Migration Regulation 1994 (Cth).
 
Obtaining ‘Bail’ in Immigration Detention
An unlawful non-citizen may apply for a bridging visa to be granted which enables them to be released from the detention on the basis of obtaining a substantive visa or to prepare to willingly leave Australia.
If the bridging visa is refused, the matter can be reviewed by the Administrative Appeals Tribunal.
 
Removal Process
Section 198 of the Act empowers an officer in various circumstances to remove as soon as reasonably practicable an unlawful non-citizen from Australia. Commonly, Section 198 (6) applies if:
(a) the non-citizen is a detainee; and
(b) the non-citizen made a valid application for a substantive visa; and
(c) the grant of the visa has been refused and the application has been finally determined or the visa cannot be granted; and
(d) the non-citizen has not made another valid application for a substantive visa.
Depending on the circumstance, a person may be removed by a monitored or supervised departure or by departmental arrangements.
 
The Deportation Process
The Minister may exercise a discretionary power pursuant to the Act to deport a non-citizen, including permanent residents and particular New Zealand citizens from Australia if you:

Have been convicted of an offence in Australia;

Are a permanent resident of Australia or citizen of New Zealand; and
Have spent a period, or cumulative periods in Australia of less than ten (10) years (which does not include time spent served in prison); or

Have been convicted of certain serious offence as prescribed under the Act; or

Are considered a security threat to Australia.

Subsequently, the Minister will execute a deportation order, unless the order is revoked, for the person’s deportation.
 
Deportation Order
A person may be arrested without a warrant if a deportation order has been issued. Importantly, If a person is arrested that is not the same person in the deportation order they have 48 hours to notify the authorities.
 
Liability for Costs of Removal or Deportation
Pursuant to Section 210 of the Act, if a person is removed or deported, that person is liable to pay the Commonwealth the costs of the removal or deportation.
 
Exclusionary Periods from Australia and Waivers
An exclusionary period may apply to a person that is either removed or deported. The length of the period that a person is banned from re-entering into Australia will depend on the provision of the Act used to remove or deport the person from Australia.
An exclusionary period can either be for:

1 year;
3 years; or
Permanent

In most cases, a permanent ban will apply in circumstances where a person’s visa was cancelled on failing the character test or the person was deported from Australia due to a criminal offence.
A waiver for the exclusionary period may be granted, except where a person is permanently banned from re-entering Australia. Generally, there must be compelling or compassionate circumstances to set aside the period and grant the person a visa.
 
Appealing Removal or Deportation from Australia
As removal is an automated process, there is generally no appeal process at this stage. Importantly, if you have received a Notice of Cancellation from the Minister you should focus on seeking legal to ascertain whether you can appeal the notice.
If the Minister has issued a deportation order against a permanent resident convicted of a crime who has spent a period or cumulative period of less than 10 years in Australia, the person may apply appeal in the Administrative Appeals Tribunal.
The Tribunal must make a decision afresh to that of the Minister and supply a statement of reasons of reasons within 28 days of the application being lodged with the Tribunal.
 
Important Considerations
Before a person is removed or deported from Australia they will receive a Notice of Cancellation from the Minister.
It is important that carefully consider the contents of the letter and make note of strict time periods that apply.
Appealing a cancellation in the context of a criminal conviction by the Minister is discussed in our related article: > Visa Cancellations and Criminal Convictions – How does a criminal conviction affect my visa status? 
We recommend that you seek independent legal advice as soon as possible to ensure that you are not subject to removal or deportation from Australia.
Potts Lawyers offer a free 20 minute consultation to discuss you matter with our Director of Litigation and registered migration agent (MARN 1910298), Craig DoRozario.
Please note that this advice is for general background information only and is not intended as a legal advice you can rely on. To obtain legal advice you can rely on you must contact a lawyer who can provide advice on your matter.
 
The post Removal or Deportation from Australia: A Civil and Criminal Overlap appeared first on Potts Lawyers.

The recent decision of Lincoln v Parole Board of Queensland [2019] QSC 156 demonstrates the application section 193A of the Corrective Services Act 2002. This provision is more commonly referred to as the “No body, no parole law”.
The decision demonstrates that the application of the law does not specifically go to knowledge of the whereabouts of the remains of the victim of an unlawful killing. Rather, it is broader and parole can be denied where a prisoner has not cooperated satisfactorily with the investigation of the offence as a whole which could potentially lead to the location of the deceased.
 
When does section 193A of the Corrective Services Act apply?

This section creates a restriction on a grant of parole to a prisoner where:

a person’s remains have not been located; or
because of an act or omission of the prisoner or another person, part of the body or remains of the victim have not been located.

 
Under the section, the Parole Board must refuse an application for parole unless it is satisfied the prisoner has cooperated satisfactorily to in the investigation of the offence to identify the victim’s location.
 
Section 193A will come into operation where a prisoner was convicted of a homicide offence and the victims’ remains have not been located. An eligible offence is an offence pursuant to the following sections of the Criminal Code 1899:-

Section 236(2) – Misconduct with regards to corpses;
Sections 302 and 305 – Murder;
Sections 303 and 310 – Manslaughter;
Section 307 – Accessory after the fact to murder;
Section 309 – Conspiracy to murder;
Section 314A – Unlawful striking causing death;
Accessory after the fact for the offences of misconduct with regards to corpses, manslaughter, conspiracy to murder and unlawful striking causing death;
Counselling, procuring or conspiring to commit one of the above offences; and
For prisoners transferred from interstate who are serving a period of imprisonment in Queensland, an offence against the law of that other State that substantially corresponds with one of the above offences.

 
Where a grant of parole is sought in the circumstances outlined above, the Board under section 193A (4) of the Act requests a report from the Commissioner of Police as to the applicant’s cooperated or not. This can occur either before a defendant is sentenced or after. The Commissioner’s report will assess:-

the nature, extent and timeliness of the prisoner’s cooperation; and
the truthfulness, completeness and reliability of any information or evidence provided by the prisoner in relation to the victim’s location; and
the significance and usefulness of the prisoner’s cooperation.

 
When the Parole Board consider the prisoner’s application for parole, the Board will make an assessment having regard to the criteria outlined in section 193A (7)(a) and (b) being:-

the report provided by the Commissioner; and
any information the Board has about the prisoner’s capacity to give the cooperation;
the transcript of any proceeding against the prisoner for the offence, including any relevant remarks made by the sentencing court; and
any other information the Board considers relevant.

Further information about the parole process in these circumstances is provided by the Queensland Parole Board here: https://publications.qld.gov.au/dataset/parole-board-secretariat-and-victims-register/resource/4a4c38d7-6efb-46a5-a8e1-5539bbc2a946
 
Lincoln’s Application for Parole

Background
The applicant was sentenced to nine years imprisonment for manslaughter and two years imprisonment, cumulative on a previous sentence for possession of methylamphetamine in excess of 2.0 grams with a parole eligibility date set at not before five years.
The body of the victim of the manslaughter offence has never been found, the applicant was not present at the time of the victim’s death nor involved in the disposal of the victim’s body. The applicant does not know where the victim’s body is located.
In fact, Mr Lincoln was found guilty of manslaughter by virtue of section 8 of the Criminal Code on the basis that the unlawful killing was a probable consequence of the force used to enable the abduction of the deceased.
 
The Application
When considering the application, the Board had regard to the agreed schedule of facts on which Lincoln was sentenced which outlined that Lincoln, organised the forced abduction of the deceased and the motivation was money to be paid by the Odin’s Outlaw Motorcycle Gang. It was also highlighted on that the applicant “wanted to get some boys up from Brisbane” and that on the morning of the abduction another man was present with Lincoln.
At preliminary hearing the Parole Board asked four questions of Lincoln based on the matter arising from the agreed schedule of facts from the sentencing hearing:-

Whether the persons who promised the money had knowledge of the location of the body;
Whether the applicant had further contact with others regarding the location of the body;
The source of the money; and
How the applicant knew that a possible disposal site for the body was Collinsville, some 240 kilometres west of Mackay

 
During the course of the hearing the President of the Parole Board made enquiries in relation to the three cars which were involved in the abduction and who the occupants of the third car were (as it had never been determined by police and they had never been identified by either of the three co-offenders who had been sentenced in relation to the same killing).
It was the President’s view that as the applicant had organised the abduction, he would have knowledge of who the occupants of the third car were and on that basis, those persons may have knowledge of the location of the deceased. It was the Board’s view that Lincoln was in a position to assist in respect of these matters. A further statement was provided by Lincoln, however it ultimately failed to identify the occupants of the third car involved in the abduction.
The Board refused a grant of parole on the basis that:-

the Board, after considering all of the available information, concluded that it was not satisfied the Applicant had cooperated satisfactorily in the investigation of the offence to identify the victim’s location;
the Applicant had not cooperated to the best of his ability;|
there was no basis for finding that the facts contained in an agreed schedule from sentencing should not be relied upon;
the Board was fortified by statements made by the Applicant in his application for parole;
despite being ‘the organiser of the group’, he stated he was not aware of who else went to the unit on the night of the offence;
having regard to section 193A(7)(a)(ii) of the CSA, the Applicant had capacity to provide further information, regarding the persons who accompanied him on the night of the offence and this may assist the investigation.

 
The applicant sought of judicial review of a decision of the Parole Board who refused to grant parole on 5 December 2018 on the basis that the Board was not satisfied Lincoln provided satisfactory cooperation in relation to the located of the deceased.
 
Lincoln’s Judicial Review

Lincoln’s application for statutory review was based on three grounds pursuant to the Judicial Review Act 1991, specifically that the Board denied Lincoln natural justice, the Board failed to take into account relevant considerations and the Board took into account irrelevant considerations.
Ground One: Natural Justice
The natural justice argument was that the refusal was an improper exercise of the power conferred on the Board by the Corrective Services Act. However this ground was abandoned.
 
Ground Two: Relevant Considerations
Lincoln’s second ground that the Board failed to take into account relevant considerations was also unsuccessful. It was argued that he had no capacity to cooperate as it was accepted that he was not involved in the disposal of the body.
However, the Court was of the view even though a co-accused involved in the same killing had provided information in relation to the body’s location and that the co-accused were best placed to provide information as to the location of the deceased’s remains, that does not mean that Mr Lincoln does not have capacity to give cooperation under s193A(7)(a)(iii).
Expanding on that point, the Court noted the Parole Board’s conclusion that Lincoln had the capacity to cooperate, and did so unsatisfactorily, was not based on knowledge of the specific location of the deceased’s remains. Rather, that basis arose from matters which were the subject of the agreed statement of facts at his sentence which could lead to the location of the deceased, specially that Lincoln:-

organised the forced abduction of the deceased;

the motivation was money to be paid by the Odin’s Outlaw Motorcycle Gang; and

“wanted to get some boys up from Brisbane” and on the morning of the abduction another man was present with Lincoln.

 
Ground Three: Irrelevant Considerations
It was conceded that given the fact that other people were present when the deceased was abducted and Lincoln was the organiser of the abduction, the Parole Board had a reasonable basis for asking the four questions and that the onus was Lincoln to establish that the four questions constituted irrelevant considerations.
This ground failed on the basis that, in accordance with section 193A(7)(b) the Board is empowered to have regard to such information it considers relevant and that the Board has the power to ask questions of the applicant in order to determine whether they have cooperated satisfactorily under section 193A(2).
The Court also turned to the wording of the provision, “cooperated satisfactorily in the investigation of the offence to identify the victim’s location”. The provision is broadly drafted and is not limited to enquiries focused solely on the location of the deceased’s remains and question can be asked of the offence globally including the “investigation of the offence”.  It is not an irrelevant consideration that the Board asked questions focused on the identity of the occupants of the third car involved in the abduction of the deceased. It was relevant to the investigation of the offence as that information could lead the location of the deceased’s body.
Ultimately, the Parole Board and the Court did not accept Lincoln’s evidence that he was unable to provide satisfactorily cooperation into the above matters, which formed the basis of the questions asked by the Board at the preliminary hearing.
Mr Lincoln’s application was dismissed with costs.
 
Important

When applying for parole in circumstances where section 193A applies it is important that you seek legal advice in relation to your application.
However, we would encourage anyone who is making an application for parole to seek advice on their application before lodging as strict time limits can apply, especially where decisions have already been made by the Parole Board.
At Potts Lawyers our team consists of both experienced criminal and civil litigation lawyers. This means we are well placed when advising in relation to applications for parole made in the first instance pursuant to the Corrective Services Act 2002 and also avenues for judicial review pursuant to the Judicial Review Act 1991 if appropriate grounds exists.
The post No Body, No Parole – Recent decision of Lincoln v Parole Board of Queensland [2019] appeared first on Potts Lawyers.

R v Nunn [2019] QCA 100 – Trafficking in dangerous drugs and the application of the “extraordinary circumstances” principle
 
In a decision by the Court of Appeal on 7 May 2019 and published on 28 May 2019, the Court again affirmed the “extraordinary circumstances” principle which is relevant when dealing with mature persons charged trafficking in Schedule 1 dangerous drugs.
Traditionally, case law dictates that in circumstances where the trafficking is large scale, the sentences which are imposed on mature offenders who have plead guilty range from 10 – 12 years imprisonment. This recent decision indicates that the principle, is to be used only as a yardstick and not a starting point or limitation of the sentencing discretion which the Court is able to exercise.
 
The facts of the case
The applicant trafficking in methylamphetamine between 16 September 2015 and 25 February 2016 and committed other drug offences during that same period. The Supreme Court (the Court of first instance for cases of this nature) sentenced the applicant having regard to a 44 page set of facts, which included an extensive summary of the trafficking business.
The trafficking was conducted largely as a wholesale business, many of the applicant’s customers on supplied to their own customers. On the facts, it was evidence that the applicant controlled the business. The applicant and his co-defendant, supplied at least 2,319.85 grams of methylamphetamine. The drugs were distributed at the Sunshine Coast, Brisbane and Gladstone. A conservative estimate of the profits of their enterprise ranged from $308,622.00 and $454,253.00. The two defendants had unsourced incomes of $66,625.08 and $32,054.86 respectively.
 
The sentence
Her Honour summarised the circumstances of the applicant’s offending and his personal circumstances. Factors which Her Honour also considered where:-

The applicant’s plea of guilty;
The applicant’s business was intense, whole sale and successful and its geographical extent was considered an aggravating feature;
The applicant’s good work history and the fact that he had done many courses in prison, which was to his credit;
An apology letter of the applicant which articulated his remorse and apologised for the offending to the courts and to the community;

 
Her Honour also considered submissions that the drugs were taken for back pain. However, Her Honour noted that it was difficult to see a link between the applicant’s back pain and wholesale trafficking business. She also noted that the profits of the business were not consumed by drug addiction, but rather allowed the applicant to live comfortably. A letter was also provided to the court by a family member who outlined that the applicant had fallen in with “the wrong crowd”. Again, little weight was given to that material as it was at odds with the evidence before the Court that he was the boss of a drug business.
A sentence of 10 years imprisonment was imposed for carrying on a business in trafficking dangerous drugs. He was given shorter concurrent terms of imprisonment for seven additional drug related offences and one offence of failing to answer questions before the Crime and Corruption Commission.
When sentencing the applicant, Her Honour also had regard to the sentence imposed on the applicant’s co-accused being eight and a half years, with a parole eligibility date after one third of that sentence.
 
What is the “extraordinary circumstances principle?”
The submissions advanced on behalf of the applicant and by the Office of the Director of Public Prosecutions acknowledge the “extraordinary circumstances” principle which originated in the case of R v Feakes [2009] QCA 376:
 “My analysis of the comparable cases relied on by Feakes and the respondent in this application demonstrate that, absent extraordinary circumstances, in cases of trafficking in sch 1 drugs on a scale like the present offence, the sentence imposed on mature offenders who have pleaded guilty is ordinarily in the range of 10 to 12 years imprisonment. Younger offenders without a significant criminal history and with excellent rehabilitative prospects may be sentenced to a slightly lesser term of imprisonment in the range of eight to nine years;”
This analysis has been referred to in numerous decisions concerning similar offending. However, what is also clear in those subsequent decisions, is that this principle is to be used only as a yardstick, and the circumstances of the offence and the offender should be considered during the exercise of the sentencing discretion. Ultimately the principle provides a mechanism in which to examine the appropriateness of a sentence, rather than acting as a starting point prescribing the boundaries of the sentence.
 
The appeal
The application for leave to appeal the sentence imposed on the applicant was granted. The Court of Appeal after examining Her Honour’s sentencing remarks that Her Honour “… erred in that part of the reasoning in which her Honour started from a predetermined range of sentences with fixed boundaries for a generally described kind of offence and offender.”, on that basis that sentenced was not warranted at law pursuant to section 668E (3) of the Criminal Code 1899.
In those circumstance the Court of Appeal is then required to pass sentence and substitute that sentence with the sentence at first instance. Having regard to the comparable sentences before the Court, it was the Court’s view that the head sentence of 10 years was appropriate having regard to the nature and circumstances of the offence.
Simply put, the original sentence imposed was correct but the reasoning from which it was derived was not.
 
Important
It is important for people charged with any drug offence in Queensland to ensure they seek experienced legal representation. Cases involving the possession, supply, production, trafficking and importation of dangerous drugs are complex and the penalties are severe. It is extremely important that clear, concise and accurate advice is provided from the earliest opportunity.
If you are charged with a drug offence in Queensland, please do not hesitate to contact us on (07) 3221 4999 for a free 20 minute consultation. If you require urgent and immediate legal advice please contact our 24/7 CRIMELINE on 0488 999 980
The post Trafficking in dangerous drugs and the application of the “extraordinary circumstances” principle appeared first on Potts Lawyers.