by David Kidd | 14 May 2015 | Uncategorized
Dismissal – Bullying & Harassment Freckleton I (Dr) (SC), ‘Employers’ Liabilities for Bullying-Induced Psychiatric Injuries’ (2008) 16(1) Journal of Law & Medicine 9; Rooding A, ‘Workplace Bullying – No Place to Hide’ (2008) 82(11) LIJ 54 Baker & Fletcher, ‘Victoria’s New Bullying Laws – What do they Mean for Employers?’ (2011) 14(7) IHC 77 [2010] FWA 4359 email kiddlrs@optusnet.com.au to receive case summaries of the cases below [2011] FWA 2113 [2011] FWA 2689 [2011] FWA 7244 [2012] FWA 1232 [2012] FWA 6147 [2012] FWA 6615 [2013] FWC 6559 [2013] FWC 9587 [2013] FWC 9484 [2014] FWC 5072 [2014] FWCFB 1440 [2015] FWCFB...
by David Kidd | 11 May 2015 | Uncategorized
s52A(1)(c) – Dangerous driving occasioning death (contact kiddlrs@optusnet.com.au for more cases, or for cases for your state) See also Manslaughter (motor) See Mitreski v R; R v Mitreski 11/12/08 [2008] NSWCCA 301 [(2008) 51 MVR 536] per Latham J, Full Court, from para. 53 where authorities on the meaning of ‘momentary inattention’ were canvassed and a sentencing appeal allowed. On two accounts of dangerous driving causing death the D was sentenced to a non parole period of two years on the first count and to a non parole period of two years on the second count and a disqualification period of three years. In Shumack v R 16/12/08 [2008] NSWCCA 311 the COA upheld the sentences for dangerous driving causing death contrary to s52A(1)(c) and failing to stop after such driving contrary to s52AB(1). There was no error in considering the failure to stop to be an aggravating factor in the former offence. The issue of double punishment was thoroughly considered. A further aggravating factor was an alcohol reading of 0.1%. The A had a good record, was unlikely to reoffend, had good rehabilitation prospects, but did not plead guilty. His sentence was as follows: “imprisonment with a non-parole period of 4 years to date from 15 October 2007 and to expire on 14 October 2011 with an additional term of 2 years to expire on 14 October 2013 [for the s52A(1)(c) offence] … [and] imprisonment with a non-parole period of 3 years to date from 15 October 2009 and to expire on 14 October 2012 with an additional term of 2 years to expire...
by David Kidd | 11 May 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 | 11 May 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 | 5 May 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 | 4 May 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...
