by David Kidd | May 11, 2015 | Uncategorized
Mobile phones (Extract from Kidd’s Traffic Law – contact David at kiddlrs@optusnet.com.au for free trial. See www.kiddslaw.com for more) See ARR 300 Articles Swil J, ‘Does Switching Off a Mobile Phone Constitute “Using” the Phone?’ (2005) ALJ 559 ARRs (‘use’ of) In Burns v Police 25/5/07 [2007] SASC 191 Justice Grey had to determine whether the A was rightly convicted of breaching Rule 300 of the ARRs by depressing a green button on the front panel of his mobile phone to answer a call while stationary at traffic lights. A was using ‘Blue tooth hands free’ technology, whereby he could have a conversation with the caller through the speakers of his car only after he had pushed the green button. To find the button, however, A had taken his eyes off the road to look at the front panel of his phone. The evidence also was that he looked at the phone to see who was calling. Submission that Rule 300 could only be breached by a driver holding a mobile phone in the hand rejected as stated that the “term ‘hand-held’ operates as an adjective to qualify the noun phrase ‘mobile phone’, rather than an adverb qualifying the verb ‘use’” [17]. No reason found “to limit ‘use’ so that it does not include depressing a button on the phone to answer an incoming call” [27]. Chresta and Kyriakopoulos followed (see commentary on these cases below). *** Note that as a result of this decision the SA Parliament swiftly passed new regulations overiding its effect so that drivers who had installed hands free technology would not...
by David Kidd | May 11, 2015 | Uncategorized
[2010] FWA 7908 SA Burgoyne v Festival City Wine & Spirits P/L (“the 14-day period is exclusive of the day of … the dismissal” @18 – A at first decided not to contest dismissal, and R was aware full bio here of this, as there had been discussions with A about it – A sought alternative employment – however, A soon sort legal advice – some delay with legal advice – A acted promptly after receiving advice – application one day late – A may have some difficulty on the merits – extension granted) [2010] FWA 9622 Vic TWU v Veolia Environmental Services Australia P/L (“The pay period indicated on a system generated pay slip along with the pay date is no indication of the date of termination of employment” @13) [2013] FWC 784 NSW Pummeroy v Grafton Electrical (the use of the word ‘after’ in the expression ‘within 14 days after’ excludes the day of dismissal) [2013] FWC 2564 NSW Cameron v Metecno (“if an applicant was dismissed at 9am on a day and made an application pursuant to s394 of the Act at 12 noon on the same day I am not convinced that it would be unlawful. Since the applicant in this case received notification of his dismissal late on 7 February and his application was received by the Commission registry in Hobart in the morning mail on 7 February the principle followed by DP Smith in Truong is apposite – the applicant was still employed when he made his application and thus his application was not in accordance with the Act. This is the basis...
by David Kidd | May 5, 2015 | Uncategorized
Below are the subject headings to a very useful criminal traffic law publication for Australian criminal traffic lawyers Table of Subject and Keyword headings Presentation note Aborigines Articles Sentencing Accumulation of sentence ‘A consequence of’ the driving of the vehicle’ Acts endangering life or creating risk of serious harm Adjacent land Entering road from Aiding & abetting dangerous driving Alcohol Articles Accustomed to heavy drinking Effect of consumables on alcohol testing results Breath analysis principles Drinking after ceases driving and before breath test Effects of (on motorcyclist) Elimination rates Evidence Intervention orders Leading animals while driving/riding Mouth wash Passengers (articles) Post-accident use of Reaction time (expert evidence) Alighting passengers Ambulances Animal drawn vehicles Lights on Animals ARRs Arising out of use of motor vehicle Arrows Assumptions Driving of others (re) Law being observed Australian Capital Territory Annotations and/or links to relevant legislation Crimes Act 1900 s29(2) – Culpable driving of motor vehicle s29(4) Crime (Sentencing) Act 2005 s17 – Non-conviction order s33(1) – Sentencing – Relevant considerations Criminal Code 2002 Road Transport (Alcohol and Drugs) Act 1977 s15AA – Taking blood samples from people in hospital s17 – Exemptions from requirements to take blood samples … s19 – Prescribed blood alcohol concentration exceeded s22 – Refusing to provide breath sample s23 – Refusing blood test etc Road Transport (Driver Licensing) Act 1999 s32(1)(a) – Offences committed by disqualified drivers s32(2) – Offences committed by disqualified drivers Road Transport (General) Act 1999 s44 – Suspension for non payment of infringement notice penalties s61B – Immediate suspension of licence s61C – Drive while suspension notice in effect Road Transport (Safety and...
by David Kidd | May 4, 2015 | Uncategorized
Agricultural Enterprises See Clement v Backo & Suncorp Metway Insurance 16/3/07 [2007] QCA 81at [32] McMurdo P (Full Court) and Clement v Backo & Anor 26/4/06 [2006] QSC 129 at [54] where the need to take into account the vagaries of an agricultural enterprise in assessing damages for loss of income from such enterprises is recognised. See Kay v Murray Irrigation Limited 11/12/09 [2009] NSWSC 1411 where likely yields from rice cropping were considered in determining economic loss. Fullerton J also considered damages for replacement labour as P could no longer do the physical aspects of rice farming. The impact of likely water allocations was also considered. In Meakes v Nominal Defendant 15/3/11 [2011] NSWDC 9 Levy SC DCJ assessed past damages for the cost of employing a fencing contractor and the future costs of employing rural labour in a case where a lawyer suffered a minor shoulder injury which affected his ability to contribute to a farm which he acquired as a co-owner subsequent to his injury. Plans for the acquisition of the farm had been firmly in place before his injury. Relevance of co-ownership discussed. Appeal allowed in Nominal Defendant v Meakes 4/4/12 [2012] NSWCA 66 [60 MVR 380]. In Kerney v Mead & Anor 3/6/11 [2011] achaten-suisse.com NSWSC 518 Garling J was not prepared to make an award for loss of farm earnings where a part-time farmer who’d never made a profit from his cattle was seriously injured, and where there was limited evidence to justify claim. See from paragraph 234. On an appeal limited to the issue of economic loss in...
by David Kidd | May 4, 2015 | Uncategorized
Electronic lodgement (difficulties with) [2011] FWA 8375 Vic Hillbrich v C & D DeMartin (the A, who was a third year apprentice, had no internet connection and decided it was too difficult to proceed and was depressed – A contacted FWA soon after his dismissal, but claimed not to know about the 14 day limit or that he could lodge his application other than by the on-line method – extension refused) [2012] FWA 6980 Vic Parker v Cetel Communications (where application may have been one day late and where A had difficulties lodging on-line and effecting payment due to his own lack of skills, exceptional circumstances found) [2013] FWC 2059 NSW Roberts v Ozone Manufacturing (the A thought he had electronically filed his application on time, but when he followed it up two months later he discovered he hadn’t – unclear what went wrong with e-filing – merits of case in A’s favour – extension allowed) [2013] FWC 6586 Vic Garson v Urban Land Authority (A’s application one day late due to his failure to use the electronic lodgement system successfully – it was plausible that his efforts failed due to the volume of material he tried to scan – exceptional circumstances found) [2014] FWC 1085 WA Thorpe v Standard Communications (“as a result of either the applicant’s errors in using the Commission’s efiling system or due to faults in the operation of the efiling system the applicant mistakenly believed he had made his application within the 21 day time limit however when he was advised that no application had been received he immediately emailed his application to the...
