Tag Archive | "Legal"

He wanted to attend an offshore wedding. But Child Support had other ideas.

$117K child debt keeps dad at home

CHRIS THOMSON

A father who owes more than $117,000 in child maintenance was yesterday blocked from attending his brother’s wedding in India.

In Brisbane yesterday, Administrative Appeals Tribunal senior member Bernard McCabe rejected Frank Botel’s plea to overturn a Child Support Registrar decision of January 22 not to let him go while the massive debt hangs over his head.

The Registrar referred to several matters which, if true, might indicate Mr Botel was an unacceptable flight-risk.

Mr Botel insisted he was not a flight-risk, and still called Australia home. While acknowledging he has a French passport, he said most of his family live in Australia and he would not leave them behind.

In a written decision, Mr McCabe said he was not satisfied Mr Botel was unlikely to return to Australia within a reasonable timeframe.

“He appears to retain a strong connection with family members, most obviously his elderly mother, who almost all reside in Australia,” Mr McCabe noted.

“The applicant has a significant child support liability, and he was unable to explain how that liability would be discharged given his limited means.

“While his means are limited, it is unclear whether the whole amount of that liability would be completely irrecoverable.

Mr McCabe added that Mr Botel continues to make periodic payments, and he has indicated he has the capacity to make a lump-sum payment, albeit not for the full amount of the debt, out of funds provided by family members.

Mr Botel offered $15,000 to be paid by his mother as security that he would return.

But the Registrar said a payment in that amount was not appropriate security.

“I agree with the Registrar,” Mr McCabe concluded.

“Mr Botel’s child support liability currently exceeds $117,000.

“He says he is taking steps to challenge that assessment, although that process has taken longer than he hoped because of limited resources and mental health issues.

“Unless and until he successfully challenges the assessment, it must be accepted he continues to owe a significant amount, and that amount is growing.

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Perth fish company fined over Aussie-branded shrimp that were packed in Thailand.

Kailis comes the raw prawn

STAFF REPORTER

Perth based fish processor Kailis Bros Pty Ltd has paid a penalty of $10,800 after receiving an infringement notice over its Aussie-branded prawns that were packed and processed in Thailand.

The ACCC says it issued the infringement notice because it had reasonable grounds to believe that Kailis Bros had engaged in conduct likely to mislead the public about the manufacturing process used to produce its frozen ‘Just Caught Prawn Meat’, in contravention of the Australian Consumer Law.

The packaging of the Kailis Bros’ prawns contained:

  • a prominent image of the Australian flag as the backdrop on the front and back of the packet;
  • a map of Australia in the bottom right hand corner on the front of the packet with the words ‘Australian Caught Raw Prawns’ printed in a circle around the map; and
  • the words ‘Australian Caught – Raw – Deveined – Tail Off – Prawn Meat’ on the packet

The ACCC considered that this represented to consumers that the prawns were caught, processed and packaged in Australia, when this was not the case.

The prawns were packed and processed in Thailand. This was included in fine print on the back of the packaging.

The prawns were mainly supplied nationally through Woolworths supermarkets.

“The ACCC believed that the images and statements on this product gave the misleading impression that it was packed and processed in Australia,” ACCC Chairman Rod Sims said.

“Consumers are often prepared to pay a premium for Australian made products, so any ‘Australian made’ representations must be accurate.

“Businesses cannot rely on fine print disclaimers to correct or qualify a prominent country of origin representation that is false or misleading.”

The payment of a penalty specified in an infringement notice is not an admission of a contravention of the Australian Consumer Law.

The ACCC can issue an infringement notice where it has reasonable grounds to believe that a person has contravened certain consumer protection laws.

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Shocked woman recalls the house call from hell.

Royal Perth doctor groped patient’s breasts

CHRIS THOMSON

EXCLUSIVE: A Royal Perth Hospital doctor who – during a self-initiated house call – lay on the floor beside a patient, kissed her breasts, and later groped them and her torso as she protested, has been found guilty of professional misconduct.

In a written decision published yesterday, a three-member panel chaired by State Administrative Tribunal President Jeremy Curthoys found that on May 30 last year Dr Premanandan Veettill “groped the patient’s breasts and torso” after he had pulled her over to a chair and sat her on his lap.

Immediately before that, Dr Veettill had asked the patient, who was experiencing severe back pain, to remove her top and bra and lie on the floor.

“I did what Dr Vayal Veettill asked as I trusted him as a doctor,” the patient explained in written evidence.

“I got down on the rug on the floor.

“I expected that Dr Vayal Veettill was going to give me a medical examination.”

Dr Veettill then lay down on the floor next to her.

“I felt very uncomfortable because he was too close and I could smell his body odour and breath,” the patient asserted.

“I could see patches of dampness from perspiration under the arms of his shirt.”

Dr Veettill put his left ear between the woman’s breasts, and told her he was trying to hear her heartbeat.

He then fondled and groped her breasts with his hands, and kissed her breasts and nipples.

“I was in shock, and didn’t know what to do,” the patient recalled.

She said: “No, no, no”, before being pulled over to the chair after again saying “no” when Dr Veettill asked her to join him.

‘WHAT ARE YOU DOING?’

While sitting on Dr Veettill’s lap, the patient repeatedly said words to the effect of: “No” and “What are you doing?”

“He wouldn’t let me go, and was holding on very tightly,” the patient explained.

“He was rubbing his groin area against me while I kept saying ‘no’ and kept struggling to get away from him.

“I was trying to pull away from him to get off him.

“I was trying to escape from his hold on me.

“I didn’t know what was going to happen next.

“I was really scared and fearful that he could do worse and no one would be able to hear me as I was alone with him in my own home.

“I managed to struggle away from him.

“I grabbed and put my top back on.

“I was in shock and I was trying to get calm and compose myself in order to handle the situation and make sure it didn’t escalate.

“I remember him having this distinct smirk on his face that I will never forget.

“He had calmed down.

“I asked him to leave.

“He still asked me to give him a hug after what he had just done to me.

“I just said ‘no’, but he came up and hugged me anyway.

“He towered over me because he is so much taller than me.

“Even after I said ‘no’, he just did it anyway.

“He behaved as if nothing had happened.

“He was dismissive and he showed no remorse for what he had just done to me.

“He left.”

‘WENT ON AND ON ABOUT IT’

Dr Veettill recalled differently, with his written evidence saying his patient said words to the effect of: “You are a good boy. I will kick you out if you misbehave”.

The woman denied this, and the tribunal accepted her evidence over his.

After the house call, the patient contacted the Sexual Assault Resource Centre and her local GP.

Dr Veettill admitted he had no professional or clinical reason to contact the woman on May 30, or indeed any time after an initial house call on March 10, 2014.

He claimed that further visits he made to the patient: “were in the context of a social relationship which he had developed … outside of a therapeutic relationship”.

However, in evidence preferred by the tribunal, the patient explained that Dr Veettill told her he needed to come over to refer her to a sleep specialist. She told him that she did not have the energy to cook dinner let alone see him again. Dr Veettill said he would bring something over for her to eat.

The patient explained that Dr Veettill “went on and on about it” and she gave in.

When Dr Veettill arrived, the patient and he sat at the dining room table and ate. Dr Veettill told her she needed to lose weight. As he was said this, he was grabbing and pinching at her.

In evidence deemed inferior to the patient’s, Dr Veettill submitted she had told him: “You are caring. You know how to care. Bring me romance”, and that the conversation continued in a similar vein.

Dr Veettill was also found guilty of unsatisfactory professional performance for breaching professional boundaries over a range of related matters.

At the time of his house calls, Dr Veettill was employed by Royal Perth Hospital. However, when visiting her it was in the employ of the Australian Locum Medical Service for which he was doing after-hours work.

Justice Curthoys and his colleagues ordered the Medical Board of Australia, which brought the case to tribunal, to file and serve submissions on penalty by November 24.

(Photo: ‘Stethoscopes’, Wikimedia Commons. Copyright (C) 2000,2001,2002 Free Software Foundation, Inc.51 Franklin St, Fifth Floor, Boston, MA 02110-1301 USAEveryone is permitted to copy and distribute verbatim copiesof this license document, but changing it is not allowed.)

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Change to WA Constitution recommended to stop 'obsessives' dissolving Parliament.

Parliament prepares for Queen’s death

CHRIS THOMSON

EXCLUSIVE: A Parliamentary committee wants to urgently protect the Western Australian Parliament against dissolution in the event of a successful Constitutional challenge by “obsessed people” when Queen Elizabeth II, 89, inevitably dies.

The Parliament’s Standing Committee on Legislation this week released recommendations aimed at planning for the so-called “demise of the Crown” (i.e. the death of the Queen).

The report notes there is doubt as to whether relevant British law, which requires Parliament to be prorogued or dissolved within six months of a monarch’s death, applies in Western Australia.

For complex legal reasons, potential exists for a person to challenge the validity of Parliament in the courts if Parliament is not prorogued within six months of the Queen’s death.

“As [University of Sydney Law] Professor [Anne] Twomey submitted: this is precisely the sort of thing that obsessed people like to litigate about,” the committee noted.

The Committee has therefore recommended that WA pass a Demise of the Crown Bill to make absolutely certain that State Parliament continues when the Queen dies and does not need to be prorogued or dissolved.

“It will make certain what ought to be certain, and address the risk that Imperial laws may apply in this state,” the report asserts.

A British monarch has not died for 62 years, and the committee has recommended that Parliament pass the Bill as soon as possible.

New Zealand, the United Kingdom, Victoria, New South Wales, Queensland and Tasmania have enacted similar amendments to their laws.

Photo: ‘Carfax2’, Wikimedia Commons

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$8000 penalty and staff given formal warning.

Creche fined after child, 5, left at Scitech

CHRIS THOMSON

A creche in the Bassendean suburb of Eden Hill has been fined $8000 and its staff given a warning after a child, 5, was left unattended for 90 minutes at Scitech after an excursion there ended.

A ruling published this week by State Administrative Tribunal president Jeremy Curthoys notes that Funtrain Enterprises, which runs a creche at Alf Faulkner Hall in Eden Hill admitted to leaving a child unsupervised for 90 minutes at Scitech on April 15.

The child, 5, had been on an excursion conducted by Funtrain which left Eden Hill at abut 10am and returned about 1pm.

The child was left behind at Scitech until between 1.30 and 2pm when Scitech staff there told Funtrain the child was still there.

The child had been left without any form of supervision for at least 90 minutes in a place accessible to the general public.

Funtrain did not conduct a roll call before leaving Scitech, but its staff did do a head count.

At a staff meeting the morning after the excursion, Funtrain issued all staff involved a formal verbal warning. New procedures were developed to prevent further juvenile disappearances.

Justice Curthoys ordered Funtrain to pay a penalty of $8000, and to contribute $1500 toward legal costs of the Department for Local Government and Communities which brought the case to the tribunal.

Photo: ‘SeanMack’, Wikimedia Commons

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Former Perth barrister argues he has 'no means' to cover Commonwealth's legal bill.

Rayney ordered to pay $14,000 court costs

CHRIS THOMSON

Onetime Perth barrister Lloyd Rayney was today ordered to pay almost $14,000 in court costs relating to phone tapping charges of which he was recently acquitted.

Mr Rayney had tried to get the Commonwealth legal action permanently stopped by asserting that negative publicity about him meant he could not get a fair trial by jury.

A jury had to be empanelled for the case, because the two phone tapping charges were laid under Commonwealth law, which does not permit trial by judge only.

Earlier this month, Mr Rayney was found not guilty of the charges which related to alleged events before the 2007 death of his wife, Corryn – who Mr Rayney was found not guilty of murdering in 2012.

Commonwealth prosecutors had alleged the Rayneys were undergoing a bitter separation and that he wanted to learn what she was saying about him.

In March, Supreme Court judge John Chaney dismissed Mr Rayney’s appeal of the District Court decision not to grant him a permanent stay on the phone tapping charges, of which he was found not guilty last month.

But today, in response to an application by the Commwealth Director of Public Prosecutions, Justice Chaney ordered Mr Rayney to pay $13,957.97 – the amount charged by a Senior Counsel who appeared for the Commonwealth at the hearing of the Supreme Court appeal application.

Justice Chaney noted the appeal arose “in a context where a right of appeal in relation to the decision to refuse a permanent stay of proceeding would have been available after trial in the event of conviction”.

“Rather than wait to avail himself of that opportunity if the need arose, [Mr Rayney] chose to make the application in this court’s civil jurisdiction to undertake judicial review,” Justice Chaney continued.

“The application was made … in an attempt to circumvent the statutory regime applicable to interlocutory decisions made in criminal proceedings.

“That choice carried with it the risk of an adverse costs order.”

Counsel for Mr Rayney submitted that all legal work on the District Court phone tap proceedings, and for the Supreme Court appeal, was done either on modest grants of legal aid or on a pro bono basis, and that Mr Rayney did not have the means to meet a costs order.

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Wedding bashing costs uncle $107,432

CHRIS THOMSON

A wedding fight between a western suburbs uncle and his Midwest farmer nephew where the nephew was allegedly spear tackled and had four teeth punched out will cost the uncle $107,432 in damages.

In a decision published this week, District Court judge Bruce Goetze awarded the six-figure sum to farmer Geoffrey Cosgrove, 30, who lives in Mingenew shire.

Before Justice Goetze, Mr Cosgrove pleaded that about 2.30am on April 12, 2009, at his brother’s wedding at Grand View Farm in the Shire of Three Springs, his uncle Jeffrey Culloton pushed him to the ground and punched him about three times to the face and head.

The pair were of similar weight and height and had previously played in the same cricket team together. Mr Cosgrove deposed that before the stoush he would see Mr Cullton socially, and they had generally been friendly.

But Mr Cosgrove had not seen Mr Culloton for a year since the uncle had sold his farm in Mingenew and moved to Floreat in Perth’s leafy west.

Mr Cosgrove testified that after walking with Mr Culloton away from a group of guests who were mingling outside the farm’s shearing shed, the next thing he remembered was laying on his back on the ground, with Mr Culloton above him. He said Mr Culloton then punched him heavily in the mouth and teeth, and as he tried to turn his head away he received two more heavy punches to the right side of his head while Mr Culloton’s right arm was on him.

When Mr Cosgrove got to his feet, he felt his mouth and realised four teeth were missing.

Mr Cosgove’s wife, Fiona Cosgrove, testified he had been grabbed in a bear hug and spear tackled to the ground.

Before the two-day civil damages trial, Mr Culloton, who is 10 to 15 years Mr Cosgrove’s senior, denied the alleged battery. He alleged Mr Cosgrove had been drunk, had directed offensive and insulting remarks at him, challenged him to a fight and struck him with a beer bottle.

Mr Culloton did not attend the trial, despite several efforts by court staff to contact him. None of four witnesses who saw the fight testified about any aggression on Mr Cosgrove’s behalf. Each claimed the pair had walked peacefully away from the shearing shed group.

Mr Culloton did provide unsworn written submissions claiming the trial was based on “assumptions”, “a totally one sided police investigation”, and a “20-year vendetta” by two male members of the Cosgrove family against him.

While noting that evidence presented at trial was limited to that on behalf of Mr Cosgrove, Justice Goetze found Mr Cosgrove did suffer an assault and battery at the hands of Mr Culloton.

Mr Cosgrove was awarded $107,432 damages comprising $50,000 for pain, suffering and decreased quality of life, $35,619 for past dental treatment, $2718 for travel to see doctors, $11,095 for future dental treatment, $3000 for aggravated damages, and $5000 for exemplary damages.

Photo: ‘horsplis’, Wikimedia Commons

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Cubby house disputes hit court

CHRIS THOMSON

EXCLUSIVE: Two neighbourhood cubby house disputes escalated today to the realm of a St Georges Terrace court room.

In the first cubby case, self-represented Steve and Fiona Hick squared off against two Town of Cambridge planners, and a planner hired by their rear neighbours, over conditions placed by the town on the Hick’s backyard cubby at Talgarth Way in City Beach.

cubby house perthIn August, oneperth.com.au revealed a local storm was brewing over the cubby after the Hicks’ neighbours raised privacy and compliance concerns about the backyard structure and adjoining pergola (pictured), which at the time had not received planning approval.

Mr Hick had built the cubby for his children Cameron (10), Peter (7), and Sophie (3) (also pictured). After council officers convinced him to lodge a retrospective planning application, the town recently ordered him to lower the cubby and shunt it away from his property’s back boundary.

He has long argued a simpler solution would be to go halves with his back neighbours, Kate and Andrew McKerracher, in a taller fence to replace the existing asbestos one.

Today, the McKerrachers sat in the back corner of State Administrative Tribunal Hearing Room 904 as their planner-for-hire Ben Doyle told presiding member Jim Jordan his clients would like to join the town as participants in the appeal proceeding that the Hicks have brought to court.

The Hicks told Mr Jordan they would let the McKerrachers attend a confidential on-site mediation at the Hicks’ house at 10am on November 6, at which the McKerrachers would be allowed to make a statement.

Mrs McKerracher in turn agreed to host the Hicks for an inspection of their cubby house from her backyard – on condition that the Hicks would be accompanied by appropriate people. Mr Jordan assured Mrs McKerracher the Hicks would be accompanied by a tribunal mediator, representatives of both sides, and more than likely Mrs McKerracher herself.

All agreed that after the inspections, the mediation itself would take place around the Hicks’ patio table.

At today’s hearing Mr Hick said he would likely argue that his cubby should never have been subject to a development application.

Council development manager Steve Rodic conceded the town had no specific policy about cubby houses, but that it was a general practice to require approval for structures such as the Hicks’ cubby which were raised off the ground.

In a twist, Mr Rodic told Mr Jordan that Cambridge town councillor Pauline O’Connor who had objected to the Hick’s pergola, but absented herself from voting when it came before council, had asked to be involved in the mediation –  in her capacity as a concerned neighbour, not a town councillor.

Mr Jordan agreed to this. Ms O’Connor will in turn be asked to allow the Hicks and the mediator to enter her back yard to view the pergola from there.

Cambridge’s eight other elected officials, including Mayor Simon Withers, will also be invited to confidentially caucus around the Hick’s patio table on November 6, as will town CEO Jason Buckley.

Despite sitting on opposite sides of the hearing table today, the Hicks shared a laugh with Mr Jordan and the town’s senior planning officer Jenny Bender as they departed the tribunal’s St Georges Terrace building together. Relations between the Hicks and McKerrachers (who later departed on their own) were not so convivial.

The Hicks’ dispute with Cambridge council was first brought to public attention by oneperth.com.au.

So was the second cubby dispute heard in Room 904 today between artist Genevieve Montgomerie and the Town of Mosman Park.

That disagreement, about a treehouse overlooking a laneway from Ms Montgomerie’s Jameson Street house, was the subject of a directions hearing that ran for 30 minutes from noon.

Ms Montgomerie was represented by planning consultant Joe Algeri who successfully argued for an on-site mediation session, against wishes expressed by planning consultant to Mosman Park council, Steve Allerding.

Mr Algeri argued that a range of site-specific concerns could only be addressed and a fresh perspective achieved from a mediation beside the treehouse.

There was no dispute between Mr Algeri and Mr Allerding that the tree house was the proper subject of a development application. Issues to be debated at the mediation include location, bulk, materials and finish of the tree house.

The mediation will commence at 10am on November 4 in Tregonning Lane. Mosman Park mayor Ron Norris, his councillors, town CEO Kevin Poynton and possibly a complaining neighbour will be invited to attend.

Since oneperth.com.au revealed Ms Montgomerie’s treehouse woes, the cubby has featured prominently on talkback radio and TV news.

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Facebook fends off ‘Friendbook’

CHRIS THOMSON

Planned trademarks of a dating website and a student networking group have been rejected in Australia because their names sound too much like ‘Facebook’.

Last month in Sydney, Australian Trade Marks Office hearing officer Jock McDonagh rejected a bid by international group FaceMBA LDA to register the ‘facemba’ trademark in Australia.

The facemba website says the group “connects MBA candidates, students, alumni and business schools, increasing the opportunities that the MBA community can offer in the business, academic and personal scopes”.

“Our mission is to provide a worldwide platform for online communication within the MBA community,” the website says.

The website also reveals that Facebook has opposed facemba’s existing trademark in Europe.

Back in Sydney, Mr McDonagh considered that deception or confusion with the Facebook mark was likely.

“Consumers confronted with a social networking platform with the prefix FACE- would be caused to wonder if it was associated with [Facebook],” he noted.

“This would be particularly so given that the [Facebook] services had their origins in the area of university students [in 2004].

“Consumers would naturally assume that [Facebook] might create a social network or offer other services directed to MBA students or graduates.”

Mr McDonagh refused the facemba application and awarded court costs to Facebook.

FRIENDBOOK

In a similar case decided in Melbourne in August, Facebook successfully opposed an application by Melbourne-based Northsword Pty Ltd to register the name ‘Friendbook’.

On behalf of Facebook, barrister Stephen Rebikoff successfully argued that due to similar services offered by both Facebook and Friendbook, the use of “book” preceded by a single syllable word beginning with the letter “F” would create an association in the mind of the public with the Facebook trade mark.

Counsel for Northsword argued, unsuccessfully, that Friendbook and Facebook were different trade marks as the intention of Friendbook was to “develop a friendship network of actual friends as opposed to the wide acceptance of people accepted on Facebook which purports to be a network of friends but is anything but a network of friends”.

The Northsword mouthpiece argued its was not open for Facebook to have a monopoly on any compound word containing the suffix “book”.

But hearing officer Bianca Irgang considered “a significant number of consumers would at the very least experience a reasonable doubt as to the existence of some sort of connection between” the Facebook and Friendbook trade marks.

Friendbook was set to offer online dating and social introduction services, and social escort agency services, among other things.

Ms Irgang refused to register the Friendbook trade mark, and awarded costs against Northsword.

Photo: Giuseppe Milo, Wikimedia Commons

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Compo after McDonald’s drive-thru rage

CHRIS THOMSON

A man attacked with a golf club by an irate queuer at a McDonald’s drive-thru in Perth’s outer east has been awarded more than $20,000 in state compensation.

About 8.30pm on December 9, 2010 Peter Kumeroa, accompanied by his mother Leonie Kumeroa, drove to the McDonald’s on Hale Road in Forrestfield and joined the queue of cars at the drive-thru service bay.

Mr Kumeroa was unable to find his wallet and, in order to do so, drove his vehicle out of the queue.

After finding the wallet he re-entered the queue in front of a vehicle driven by an Aaron Portlock.

A written decision delivered today by District Court Judge Philip Eaton reveals that in response to Mr Kumeroa’s driving, Portlock drove his vehicle up to Mr Kumeroa’s driver’s side door, got out of his vehicle and began to make threats in a loud voice.

Mr Kumeroa got out of his vehicle in an attempt to deal with Mr Portlock’s aggression.

Witnesses tried to diffuse the situation – to no avail.

Portlock attacked Mr Kumeroa, attempting to kick him. He then started throwing punches which Mr Kumeroa managed to fend away.

HEADLOCK

Mr Kumeroa pushed Portlock away and restrained him in a headlock, before releasing him. Portlock returned to his own vehicle and Mr Kumeroa returned to his, locking the doors while sitting in the driver’s seat.

Portlock emerged with a golf club in hand. He stepped to the driver’s side of Mr Kumeroa’s vehicle and smashed the windscreen with the golf club.

He then smashed the right-hand driver’s window causing Mr Kumeroa to shield himself with his right arm. The club penetrated the window, smashing the glass and striking Mr Kumeroa on the arm.

Mr Kumeroa sustained cuts and a broken elbow, and lost consciousness for a short while before regaining consciousness to hear Portlock’s vehicle leaving the drive-thru. Ambulance officers attended the scene and Mr Kumeroa was taken to Sir Charles Gairdner Hospital where he underwent surgery.

In August 2012, Portlock pleaded guilty to charges of criminal damage, and assault occasioning bodily harm. He was sentenced to nine months imprisonment, suspended for 18 months.

For his part, Mr Kumeroa has been awarded $20,449.80 compensation for his injuries and costs associated with treatment, travel and psychological counselling.

Photo: Jonathan Billinger, Wikimedia Commons

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Bashed Rocko clubber compensated

CHRIS THOMSON

A man who could not eat solids for five weeks after being bashed at or near a Rockingham nightclub has been awarded $18,225 compensation, even though a judge considers the man contributed to his own injuries.

In a written judgment delivered today, District Court Judge Philip Eaton concluded that on October, 26, 2011 electrician Adrian Preston had “unwisely” come to the defence of his friend Jamie who he thought was under attack on the dance floor of Vibe nightclub in Rockingham.

Mr Preston – who Judge Eaton accepted had drunk six stubbies of Jack Daniels and cola, and two shooters – was uninjured in the dance floor stoush.

Judge Eaton accepted that Vibe security staff moved to escort Mr Preston from the club. Mr Preston could not recall what happened next but a few minutes later a friend found him outside the club unconscious and with his face covered in blood.

As a result of facial injuries, Mr Preston could not eat solids for five weeks.

Mr Preston, 26, left the club willingly and offered no resistance to his ejection. Judge Eaton inferred, from the extent of the injuries, that they were not caused by an accidental trip or a fall. Although no charges were laid, and Judge Eaton noted it was not possible to infer quite how the injuries occurred, he considered it possible that Vibe security staff had caused the injuries.

FOOTAGE TAPED OVER

Mr Preston reported the incident to police in Cannington the night he received his injuries. It was not until two weeks later, on November 10, 2011, that police asked Vibe management for a copy of security footage. The police were told the footage no longer existed because it had been recorded over.

Judge Eaton noted that had the police taken statements from security personnel and promptly obtained a copy of the security footage there would have been a prospect that more circumstances of the incident could have been known.

He considered Mr Preston’s behaviour contributed indirectly to his injuries.

“Having perceived that his friend Jamie might have been in some danger at the hands of others on the dance floor he might have attempted, in a non-violent way, to usher Jamie from the dance floor or alert the nightclub management to what appeared to be inappropriate behaviour on the dance floor,” Judge Eaton noted.

“Instead, he chose a violent option, stepping into the fray and manhandling and then punching a stranger.

“It was that act which led directly to the intervention of the nightclub security staff and his ejection from the nightclub.

“It was at the conclusion of that ejection or in the immediate aftermath of it that he sustained his injuries.”

As a result, Judge Eaton slashed by 50 per cent the amount of compensation that would have otherwise been awarded.

In Western Australia, victims injured by an alleged offence can apply for state compensation if no charges are laid.

Judge Eaton awarded Mr Preston $12,500 for non-financial loss, $1912 for dental and medical expenses, $2500 for future medical and dental expenses, $1138 for medical and dental reports, and $175 for cancellation of a flight Mr Preston had booked to Bali and was unable to take.

Posted in Bar & Cafe News, RockinghamComments (0)

Taxpayer to cover road rage negligence

CHRIS THOMSON

A cyclist knocked off his bike by the irate driver of a Toyota HiLux has been awarded $315,000 compensation after injuring his arm, hip and shoulder – and state taxpayers, not the HiLux driver, will have to foot the bill.

In August 2008, Jesse Daniel Lawton, then 22, was riding his pushbike on London Street in Joondana.

In a decision published today, District Court Judge Bruce Goetze accepted that a white HiLux utility, driven by a man with a younger male passenger, hit the rear of Mr Lawton’s bike at the intersection of Baden Street.

Mr Lawton was knocked to the ground and the HiLux was allegedly driven off.

After the crash, Mr Lawton was treated for a broken elbow and dislocated shoulder. His arm was placed in a cast for six weeks and after surgery his right shoulder kept dropping out of place, causing pain.

The driver and passenger have never been found or identified.

‘NOT EXACTLY UNCOMMON’

Mr Lawton told Judge Goetze that before the collision the pair in the HiLux had been yelling at him.

“I’m not sure what they were yelling or why, but it wasn’t exactly uncommon,” Mr Lawton testified.

“I mean I’ve done a lot of riding and I’ve been – I’ve had people abuse me before, sort of.”

Mr Lawton said the driver had a very red face.

“He was – yeah, he looked very – he looked furious …,” Mr Lawton added.

“… yeah, and he would have been maybe between 40 and 50, that guy.

“The young person to his left was – yeah, hanging out the window yelling at me, yeah.”

ICWA TO PAY

Where a driver causes bodily injury by negligence but the identity of the vehicle remains a mystery, a person who could have obtained a judgment against the driver may obtain that judgment by action against the Insurance Commission of Western Australia.

State government-owned ICWA resisted Mr Lawton’s claim in the District Court, and lost.

Judge Goetze accepted that Mr Lawton was at risk of reduced work capacity later in life due to pain and stiffening in his right elbow after the crash.

A doctor testified that Mr Lawton’s post-traumatic osteoarthritis will probably be progressive and he will suffer significant permanent impairment.

Judge Goetze ordered ICWA to pay Mr Lawton $314,511.41 compensation.

The payout comprises $129,854.21 for future economic loss and superannuation , 94,750 for loss of enjoyment of life, 84,857.20 for past economic loss and superannuation benefts (with interest) and $5050 for future medical expenses.

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‘Home made wills a curse’

CHRIS THOMSON

EXCLUSIVE: Home made wills are a “curse” that only occasionally lead to a smooth handover of a deceased person’s assets the master of Western Australia’s Supreme Court has warned.

“Home made wills are a curse,” Supreme Court Master Craig Sanderson stressed in a judgment delivered today on a prolonged family tussle over the assets of Bullsbrook horse trainer Robb Gray who died in 2003.

“Occasionally where the assets of a testator are limited and where the beneficiaries are not in dispute no difficulties may arise in the administration of an estate.

“Flaws in the will can be glossed over and the interests of all parties can be reconciled.”

However, Master Sanderson warned that in cases such as the Gray vs Gray one “where the estate of the deceased is substantial, the will is opaque and there is no agreement among the beneficiaries, the inevitable result is an expensive legal battle which is unlikely to satisfy everyone”.

At the time of his death, Mr Gray ran the high profile Rangeview Stud, which is now operated by his son Robbie. The current value of three properties owned by the Mr Gray at the time of his death now amounts to $7.3 million.

Mr Gray left a will dated September 19, 2001. Probate of the will was granted to Mr Gray’s oldest child Leeanne, oldest son Ashley, and younger two sons Murray and Robbie as co-executors.

Leeanne Gray contested aspects of Mr Gray’s home made will. But Master Sanderson today ruled largely in the other Grays’ favour.

“All of this could have been avoided if the testator had consulted a lawyer and signed off on a will which reflected his wishes,” Master Sanderson advised.

“There is no question but that engaging the services of a properly qualified and experienced lawyer to draft a will is money well spent.”

Photo: ‘Darrellksr’, Wikimedia Commons

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‘Official conspired to damage Custodial Inspector’

CHRIS THOMSON

EXCLUSIVE: A veteran public servant and City of Stirling councillor considered to have conspired to damage and embarrass Western Australia’s prisons watchdog has lost an appeal to overturn her sacking from the state public service.

A written decision of the Public Service Appeal Board delivered on Wednesday reveals that in October 2011 Elizabeth Re, a senior staffer with the Office of the Inspector of Custodial Services, sent emails to an officer of the Department of Corrective Services, the operations of which Ms Re’s agency was charged with having arm’s length oversight.

In one email, on October 6, 2011, Ms Re told the DCS officer that if she could think of a good Parliamentary question “that will make DCS look good and [the] Office of the Inspector of Custodial Services not then let me know and I will see who I can give it to”.

The Board considered that the October string of emails was perhaps the “high water mark” of Ms Re’s misconduct.

“In many respects, this is a remarkable [email] exchange,” the Board noted.

‘CONSPIRED TO DAMAGE AND EMBARRASS’

The Board considered the emails proved Ms Re had conspired to damage and embarrass the inspector, both in Parliament and in the media.

“This is the organisation that was paying Ms Re’s substantial salary,” the Board noted.

“It is difficult to imagine a more serious breach of the implied obligation of fidelity and good faith that Ms Re owed to her employer.

“This exchange must also be viewed in the context of the obvious necessity for there to be a professional and “arms’ length” relationship between the two organisations.

“This conduct alone, in our view, taken in isolation from all of the other acts of misconduct, would warrant in itself the employer summarily dismissing Ms Re for serious misconduct.”

CITY OF STIRLING COUNCILLOR

Ms Re had been a Western Australian public servant since 1982, and employed by the Office of the Inspector of Custodial Service since 2007.

She is on the governing council of the RAC, and is president of the WA branch of the Australian Local Government Women’s Association.

She is also a veteran councillor with Western Australia’s largest local council, the City of Stirling. Ms Re is running for re-election at the October 19 local council elections.

Before the Board, she did not dispute the emails were sent or that they constituted misconduct.

“The fact that Ms Re was a senior and experienced officer who also holds responsible positions in the community makes the course of conduct she engaged in all the more startling,” the Board noted.

Ms Re maintained the emails resulted from dissatisfaction with her work arrangements.

She claimed the conduct did not warrant dismissal, and that a lesser penalty such as a reprimand or a fine should have been imposed.

Ms Re was dismissed from her Level 6 position with the Office of the Inspector on December 21 last year. The sacking followed the discovery of many emails between she and the Department of Corrective Service officer between August 2009 and January 2012.

The Office argued that the emails inappropriately revealed the internal deliberation process of the Office, inappropriately criticised fellow staff and the inspector himself, revealed the contents of confidential documents to people outside the Office, and inappropriately criticised the Office.

A plea by Ms Rea to overturn her dismissal was rejected by the Board.

oneperth.com.au has contacted Ms Re for comment.

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