Should an inference be made against a party that fails to call a witness?
by Rose Laffan
Rose Laffan is a Senior Solicitor at Mullane & Lindsay in Newcastle and practises extensively in Family, Relationship and Matrimonial Law
In the recent case of Masoud and Masoud the Full Court of the Family Court was required to consider whether the trial Judge had failed to draw an inference against the wife when she had not called her father and mother as witnesses in relation to money that they all said her parents had loaned to her and which the husband thought had been a gift.
The so called “rule in Jones and Dunkel” allows a Court to draw an inference unfavourable to the party that failed to call the witness, such that the evidence of the uncalled witness would not have assisted the party’s case. Read the rest of this entry »
Preliminary discovery – How do you find out if you have a claim?
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
People sometimes suspect they have legal rights but just aren’t sure – and the only documents that may help them decide, are held by the prospective defendant. Many Courts allow for “preliminary discovery”, that is, for orders requiring a potential (not actual) defendant to produce documents and records to help the potential plaintiff work out whether they have a case or not. However it is not an easy process. To obtain preliminary discovery an applicant must show, amongst other things, that it was ‘otherwise unable’ to obtain sufficient information to decide whether or not to sue
An insurer (RealCover) sold policies through a broker (Gallagher). RealCover provided Gallagher with information such as client lists and renewal dates to facilitate that process. The agency arrangement came to an end early in 2015 and RealCover appointed a new broker; however it suffered a sharp decline in its business. It suspected Gallagher may have been using its confidential information to “target” RealCover customers. Gallagher denied this was the case and said that it contacted potential customers on the basis of other (non – confidential) information in its possession. Read the rest of this entry »
Dismissal whilst absent when ill
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
Mr Byrne was employed with a mine. He approached his supervisor and requested two days annual leave but was refused. He made a statement to the effect that, despite the refusal, he would obtain a medical certificate and ‘would not’ attend work on the days in question. The manager responded that if Mr Byrne did so, there was likely to be a disciplinary process. Mr Byrne in fact consulted his doctor, was certified as unfit to attend work and did not attend work on the relevant days. There was a subsequent disciplinary process and he was dismissed. His union challenged that dismissal and, at trial, the judge made a positive finding after hearing evidence from the GP that on the days in question Mr Byrne had in fact been ill. The dismissal was nonetheless said to have been valid. That finding was appealed to the Full Court but failed. Read the rest of this entry »
Victorian Royal Commission into Family Violence
by Rose Laffan
Rose Laffan is a Senior Solicitor at Mullane & Lindsay in Newcastle and practises extensively in Family, Relationship and Matrimonial Law
The Report of the Victorian Royal Commission into Family Violence was tabled in the Victorian Parliament on 30 March 2016.
The Report contains 227 recommendations including:
- New laws to establish a Central Information Point to funnel information about perpetrators;
- Support and safety hubs throughout the State;
- A ‘blitz’ to rehouse women and children who have fled family violence;
- An immediate funding boost to services that support victims and a dedicated funding stream for preventing family violence – including an investment in respectful relationships education at schools and family violence training in key workforces (such as hospitals and schools);
- An expanded investigative capacity for police – including a trial of body-worn cameras;
- More specialist family violence Courts that can deal with the criminal, civil and family law matters at the same time; and
- An independent Family Violence Agency to review government policy and action.
Sham contracting arrangements
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
Section 357 of the Fair Work Act prohibit the making of claims that a person is a contractor if they are, in truth an employee. Employers are liable to a civil penalty if they breach the section.
Quest South Perth Holdings Pty Ltd operated a serviced apartment building. It employed housekeepers. It subsequently entered an arrangement with a labour hire business, Contracting Solutions Pty Ltd, to supply housekeepers to it. Quest’s previously employed housekeepers were, in effect, “transferred” to Contracting Solutions and then “hired back” to Quest. They continued to provide fundamentally the same housekeeping services. It was alleged Quest had “represented”, that the housekeepers were independent contractors in breach of s357. Read the rest of this entry »