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Employers & Mine Operator liable for worker’s injuries after work

Posted on Categories Negligence, Personal InjuryTags , , , Leave a comment on Employers & Mine Operator liable for worker’s injuries after work

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It is common for workers in the mining industry to work long hours during long shifts, and to perform many such shifts in a short period of time. Exhaustion is therefore a real safety risk.

In this case, the Plaintiff Harold Kerle had been employed as a dump truck operator at the Norwich Park Mine near Dysart in Central Queensland and was severely injured after work in a one vehicle accident on his way home.

This case shows that the duty of care owed by employers and others is not always confined to the work hours or the place of work.

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The facts

Harold Kerle had completed four consecutive 12 hours shifts at the Norwich Park Mine. He made the fateful decision to commence his journey home at about 6.30am on the morning of 30 October 2008, moments after he had finished his final shift. He lived in Monto, a five hour 430 kilometre drive away.

Shortly before 10am, Kerle crashed his car into a concrete wall after veering onto the right hand side of the road and colliding at high speed on an Armco rail on a bridge crossing at Alma Creek on the Burnett Highway. Kerle sustained significant injuries, including a brain injury and fractures of his ankle, nose and skull. Kerle had no memory of the accident or the events leading up to it.

Alleging the accident was caused by fatigue, Kerle sued his employer Axial HR Pty Ltd (“Axial”), his host employer, HMP Constructions Pty Ltd (“HMP”) and the operator of the Norwich Park Mine, BM Alliance Coal Operations Pty Ltd (“BMA”). Continue reading “Employers & Mine Operator liable for worker’s injuries after work”

Failure to appear conviction quashed on appeal

Posted on Categories Criminal law, Evidence, LibertyTags , , , , , , Leave a comment on Failure to appear conviction quashed on appeal

It is a criminal offence for a Defendant in criminal proceedings to fail to appear in court unless they have a reasonable excuse to do so. A recent case which resulted in an acquittal of such a charge sheds light on the meaning of reasonable excuse for the purposes of s33 of the Bail Act 1980 (Qld).

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Legal Aid Funding for Co-Accused Representation Policy Changed in Aftermath of Decision in R v Pham

Posted on Categories Criminal lawTags , , , , Leave a comment on Legal Aid Funding for Co-Accused Representation Policy Changed in Aftermath of Decision in R v Pham

The matter concerned drug trafficking charges involving 3 co-defendants, including Mr Pham. Legal Aid provided the funding to private lawyers to represent the 3 co-accused at the trial. The co-defendants were all represented by the same firm of solicitors, although not by the same individual solicitors from within that firm.

At trial, one of Mr Pham’s co-defendants gave evidence that implicated Mr Pham in the drug-trafficking crime. Mr Pham did not give nor call any evidence, and relied solely on the evidence given by that co-defendant for his own defence.

Mr Pham was convicted of the drug-trafficking offence as a result of that trial. In making this appeal, Mr Pham alleged that the solicitors representing the co-defendants had failed to advise him about the content of this evidence before the trial. Mr Pham further alleged that this failure allowed him to be inculpated without being afforded the opportunity to explain himself, and that as a result he did not have a fair trial.

Continue reading “Legal Aid Funding for Co-Accused Representation Policy Changed in Aftermath of Decision in R v Pham”

Lorna Jane’s comprehensive court win

Posted on Categories civil litigation, Evidence, Industrial relations, Negligence, Personal InjuryTags , , , , , , , 1 Comment on Lorna Jane’s comprehensive court win

Amy Louise Robinson was employed by activewear company Lorna Jane Pty Ltd between July and December 2012 as manager of Lorna Jane’s DFO store at Skygate near Brisbane Airport.

Ms Robinson claimed to have suffered a psychiatric injury from workplace bullying by Megan McCarthy (Lorna Jane’s learning and development manager) and haemorrhoids when lifting and moving heavy boxes of stock during the course of her employment.

Relevant law

Vicarious liability is a common law principle which imposes liability despite the employer’s not itself being at fault. The claim for psychiatric injury alleged that Lorna Jane was vicariously liable for the actions of McCarthy and also that an email from a former DFO store employee named Ms Maninnen which alleged ill-treatment of Robinson by McCarthy had put the company ‘on notice’ and that it had subsequently failed to investigate.
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How you can save on legal fees

Posted on Categories Legal profession, Professional feesTags , , 2 Comments on How you can save on legal fees

This post discussed why legal fees tend to be so high. The good news is that as a client there are a number of ways you can reduce your legal fees, as the rest of this article will show.
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When the Solicitor-Barrister relationship turns sour

Posted on Categories Legal profession, Professional disciplineTags , , , , , 1 Comment on When the Solicitor-Barrister relationship turns sour

There are many aspects to the solicitor-barrister relationship. In some ways the relationship is symbiotic: solicitors need barristers when a case requires specialist advice or is going to trial, and barristers need solicitors to refer work to them. It is certainly in the interests of solicitors to have good relations with at least some barristers and vice versa. However, many (but not all) barristers consider themselves to be the more senior arm of the profession, to the chagrin of solicitors.

When a barrister is instructed by the solicitor, the two act as a team in preparing for and presenting the client’s case. The solicitor’s role is to obtain the client’s instructions, sort the facts in a digestible format for the barrister and to gather the relevant information and evidence in preparation for hearing. The barrister on the other hand provides advice and performs the advocacy work in court. When the solicitor and barrister work well together, that is to the benefit of the client, whose chances of a favourable outcome are increased.

However, two Discipline Applications brought against solicitors in the Queensland Civil and Administrative Tribunal (QCAT) in 2013 show that disputes can arise between solicitors and barristers that can have serious consequences for the legal practitioner found to have acted unethically.
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The perils of social media for twits

Posted on Categories DefamationTags , , , , , , , , Leave a comment on The perils of social media for twits

The laws of defamation apply to social media as much as they apply anywhere else:

A FORMER high school student has been ordered to pay $105,000 to a teacher for writing defamatory remarks about her on social media in what is believed to be Australia’s first Twitter defamation case to go to trial.

Former Orange High School student Andrew Farley, 20, made “false allegations” about music teacher Christine Mickle on Twitter and Facebook in 2012, a year after he had left school.

Mr Farley, who had never been taught by Ms Mickle, seemed to bear a grudge against the 58-year-old based on a belief that she had something to do with his father, also a teacher, leaving the school, District Court Judge Michael Elkaim said in his ruling.

“There is absolutely no evidence to substantiate that belief,” Judge Elkaim said. “The effect of the publication on the plaintiff was devastating.’’

Anyone who frequents Twitter (or other social media) on a regular basis would know that false and defamatory assertions are often made about people. In some ways it’s a surprise that it’s taken this long for such a case to result in an award of damages in Australia.

Another twitter defamation case that went to court is that of Liberal pollsters Mark Textor and Lyndon Crosby against former Labor MP Mike Kelly for a tweet Kelly published about push polling.

When people go on social media to rant, they would be well advised to be careful that they do not open themselves to liability for defamation. A right to rant is not the same as a right to defame.

Why are lawyers so expensive?

Posted on Categories Legal profession, Professional fees, Queensland Law SocietyLeave a comment on Why are lawyers so expensive?

Most complaints about lawyers concern how high their legal fees are. The professional fees charged by lawyers are notorious. When many clients earn an average of $20-40 per hour, it can seem unfair that your lawyers charge you hundreds of dollars per hour. However, as this article will demonstrate, there are reasons why legal fees are so high.
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Identity politics, political correctness and section 18C of the Racial Discrimination Act

Posted on Categories Human rights, Judiciary, LibertyTags , , , , , , , , , , , , , , , , 3 Comments on Identity politics, political correctness and section 18C of the Racial Discrimination Act

On 4 November 2016, Judge Jarrett of the Federal Circuit Court of Australia dismissed a claim brought by Cindy Prior under section 18C of the Racial Discrimination Act 1975 (Cth) as a result of posts published on Facebook by students at the Queensland University of Technology that complained of being kicked out of an ‘Indigenous only’ computer lab. This ends a 3 year long legal saga and ordeal for the students concerned.
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Things to do when you separate from your partner

Posted on Categories Family lawLeave a comment on Things to do when you separate from your partner

Have you just separated? Are you thinking of separating? If so, here is a list of useful things to do as soon as you can.
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