Showing posts with label law. Show all posts
Showing posts with label law. Show all posts

Sunday, 30 August 2020

Court of Appeal rejects Adani's application to search an activist's home & Supreme Court orders Adani to pay $106.8 million to four companies - in part due to its own "serious dishonesty"


ABC News, 27 August 2020:

Mining company Adani secretly sought to raid the Brisbane home of an activist to seize evidence but failed twice, court documents have revealed.

Adani and its Carmichael Rail Network applied for a search order, known as an Anton Piller order, against Benjamin Pennings in June this year.

It claimed Mr Pennings had possession of "confidential information on a computer at his home" which was being used in a concerted campaign of "intimidation and conspiracy" against the Galilee Basin coal project.

As part of the application, Adani claimed Mr Pennings had information to which only company executives and other select staff and contractors had access.

Anton Piller orders are searches carried out without notice to the defendant to ensure that evidence cannot be destroyed and is preserved to be used in judicial proceedings.

Adani's court application and subsequent appeal in July were also heard ex parte, meaning they were both heard without notice.

Adani has described Mr Pennings as the "principal" of a group of political activists called the "Galilee Blockade", whose objective is to prevent the development of the mine and railway.

In rejecting Adani and Carmichael Rail Network's appeal last week, the Court of Appeal ruled the evidence was "wholly inadequate to justify the order sought".

"The appellants have failed to establish the likelihood that Mr Pennings has any confidential information or that he has any confidential information stored at his home," the Court of Appeal judges said.

"They have failed to establish the likelihood that the use of any confidential information has resulted in any loss."

The Court of Appeal also raised concerns about the impact of a search order could have had on Mr Pennings' partner and children.

"Surely, to permit a search of a defendant's house, with the humiliation and family distress which that might involve, lies at the outer boundary of the discretion," the Court of Appeal judges said.

"This is because, for reasons that anyone can understand, the 'shock, anger, confusion' and the 'sense of violation and powerlessness' will be much greater in such a case and may be suffered not only by someone who is proved in due course to be a wrongdoer, but by entirely innocent parties as well."……

Read the full article here.

BACKGROUND

Mining Pty Ltd & Anor v Pennings [2020] QCA 169 (17 August 2020)

The Adani Group appears to have been the applicant or been named as a respondent in around seven court cases between 2013 and 2020.

This is the latest:


Excerpts from the judgment:

[197] The applicant’s conduct was deliberate, not just heedless or indifferent 81 to the position of the remaining users. The applicant was fully cognisant as to the effect its behaviour would have in increasing the fixed costs to the remaining users. It desired that effect in order to advantage itself financially. That is, to achieve a gain for itself, the applicant engaged in calculated behaviour to the disadvantage of the respondents.82 This is evident in the timing and structure of the QCPL transactions.”

[203] The applicant’s behaviour in attempting to disguise or camouflage the true basis of its dealings with QCPL involved dishonesty – [117] ff and [122], and so far as this proceeding is concerned, involved serious dishonesty – [98] and [121].”

Tuesday, 21 July 2020

United Australia Party founder & former MP for Fairfax Clive Palmer facing charges which might lead to 12 years imprisonment


Australian Securities and Investments Commission (ASIC), media release, 17 July 2020:

20-163MR Clive Palmer charged over breaches of directors’ duties and fraud 

Following an ASIC investigation, Mr Clive Frederick Palmer, 66 of Broadbeach Waters in Queensland, has been charged with two counts of contravening section 184(2)(a) of the Corporations Act 2001 (Act) - dishonest use of position as a director and two counts of contravening section 408C(1)(d) of the Criminal Code Act 1899 (Qld) – fraud by dishonestly gaining a benefit or advantage. 

ASIC alleges that between 5 August 2013 and 5 September 2013, Mr Palmer dishonestly obtained a benefit or advantage for Cosmo Developments Pty Ltd and/or the Palmer United Party (PUP) and others by authorising the transfer of $10,000,000 contrary to the purpose for which the funds were being held. It is alleged that he dishonestly used his position as a director of Mineralogy Pty Ltd (Mineralogy), a mining company owned by him, in obtaining that advantage. 

ASIC also alleges that, between 31 August 2013 and 3 September 2013, Mr Palmer dishonestly obtained a benefit or advantage for Media Circus Network Pty Ltd and/or PUP by authorising the transfer of $2,167,065.60 contrary to the purpose for which the funds were being held. It is alleged that Mr Palmer dishonestly used his position as a director of Mineralogy in obtaining that advantage. 

The maximum penalty for an offence under section 184(2) of the Act is $340,000 or imprisonment for five years, or both. 

The maximum penalty for an offence under section 408C of the Code is five years’ imprisonment. However, if circumstances of aggravation are established the maximum penalty at the time the offences are alleged to have occurred is increased to 12 years’ imprisonment. 

The matter was first mentioned in the Brisbane Magistrates Court on 20 March 2020, at which time the matter was adjourned for further mention on 17 July 2020. On 17 July 2020 the matter was adjourned until 28 August 2020. 

The matter is being prosecuted by the Commonwealth Director of Public Prosecutions.

Thursday, 25 June 2020

When a powerful 77 year-old legal figure is finally revealed as a serial sexual harasser in the workplace


The Sydney Morning Herald,  22 June 2020:

Justice Dyson Heydon arrives at the Royal Commission into trade unions in 2015 in Sydney,CREDIT: BEN RUSHTON



Former High Court Justice Dyson Heydon, one of the nation’s pre-eminent legal minds, sexually harassed six young female associates, an independent inquiry by the court has found.
Herald investigation has also uncovered further allegations from senior legal figures of predatory behaviour by Mr Heydon, including a judge who claims that he indecently assaulted her. The women claim that Mr Heydon’s status as one of the most powerful men in the country protected him from being held to account for his actions.
The High Court inquiry was prompted by two of the judge’s former associates notifying the Chief Justice Susan Kiefel in March 2019 that they had been sexually harassed by Mr Heydon.
“We are ashamed that this could have happened at the High Court of Australia,” said Chief Justice Kiefel in a statement. She confirmed that the lengthy investigation found that “the Honourable Dyson Heydon, AC, QC” harassed six former staff members.

“The findings are of extreme concern to me, my fellow justices, our chief executive and the staff of the court,” said the Chief Justice.
Chief Justice Kiefel has personally apologised to the six women, five of them Mr Heydon’s associates, saying “their accounts of their experiences at the time have been believed”.
Dyson Heydon was on the High Court bench from 2003-13 and in 2014 was appointed by then Prime Minister Tony Abbott to run the royal commission into trade union governance and corruption.
Mr Heydon denied the claims via his lawyers Speed and Stracey who issued a statement.....
“Dyson Heydon was one of the most powerful men in the country,” said Josh Bornstein, the women’s lawyer and a principal with law firm Maurice Blackburn in Melbourne. “As the independent investigation makes clear, he is also a sex pest. At the same time he was dispensing justice in the highest court in Australia’s legal system, he was [engaged in] sexual harassment.”
Vivienne Thom, the former Inspector-General of Intelligence and Security, interviewed a dozen witnesses, including five former associates. Dr Thom’s report found that the evidence “demonstrates a tendency by Mr Heydon to engage in a pattern of conduct of sexual harassment” which included unwelcome touching, attempting to kiss the women and taking them into his bedroom.
Herald investigation can reveal that Mr Heydon’s predatory behaviour was an “open secret” in legal and judicial circles. Not only did he prey on his young associates during his decade on the High Court until his mandatory retirement at 70 in 2013, other females in the profession suffered at his hands.....
Read the full article here.

The Guardian, 22 June 2020:

“At the time that this sexual harassment occurred, Dyson Heydon was in his 60s, a conservative judge, a prominent Catholic and a married man,” Bornstein said. 

“The women he employed were in their early 20s and often straight out of university. He was one of the most powerful men in the country, who could make or break their future careers in the law. 

Bornstein said there was an “extreme power imbalance” between Heydon and the young women. 

There was no clear avenue for women to complain about such conduct, he said. 

“The fear of his power and influence meant that the women did not feel able to come forward until recently,” he said.

STATEMENT BY THE HON SUSAN MEFEL AC,CHIEF JUSTICE OF THE HIGH COURT OF AUSTRALIA (PDF)
UPDATE 

The Sydney Morning Herald, 24 June 2020: 

The Herald and The Age can now reveal claims about his behaviour extend to Britain where he is the subject of allegations, including inappropriate touching. 

Following his mandatory retirement from the High Court in 2013 aged 70, Dyson Heydon sought out a teaching position at the prestigious English university, where he had studied on a Rhodes scholarship in 1964. 

His three-year appointment at the Faculty of Law was greeted with excitement within the university, according to documents released under freedom of information laws...... 

Mr Heydon's lectures were scheduled to occur early each year from 2014 to 2016 inclusive. 

However, allegations about his behaviour would cast a dark shadow over Mr Heydon’s tenure. 

"My first introduction to him was that all the Australian law students at Oxford called him 'Dirty Dyson', that seemed to be the moniker he had widely," one former student said. 

One of Mr Heydon’s postgraduate students, whom the Herald and The Age have chosen not to name, was so upset and angry about Mr Heydon’s harassment of her in the Bodleian Library, that she complained to the university. 

The university decided not to renew Mr Heydon’s visiting professorship. In heavily redacted documents released to the Herald and The Age under FOI, the reason for the university's decision was not apparent. 

"The Personnel Committee has already taken a decision that Dyson Heydon should not be renewed," stated Oxford Law Faculty Dean Anne Davies in an email dated June 1, 2016. "We have written to tell him this."

The Sydney Morning Herald, 24 June 2020:

The ACT's Director of Public Prosecutions has recommended the Australian Federal Police investigate former High Court justice Dyson Heydon over allegations of sexual harassment following a damning investigation commissioned by the court.....

The Sydney Morning Herald, 25 June 2020:

Ms Coutts told the investigator she was worried that Justice Heydon "who was then a large and strong man" may try to harass her friend again. 

Ms Coutts told the investigator called in to conduct the independent inquiry, Dr Vivienne Thom, that she informed Justice McHugh of his colleague's alleged behaviour. 

According to the report, Justice McHugh allegedly replied: "Well Sharona, it's not easy to shock me these days but you have just truly shocked me." 

Ms Coutts said the following day, after further discussions with Justice McHugh, that he left the chambers, returning later to tell her: "I've told the Chief. It's his court. He has to deal with this." 

It is not known what steps were taken by then Chief Justice Murray Gleeson about Justice Heydon's behaviour. Mr McHugh declined to participate in the investigation. When contacted by the Herald and The Age, Mr Gleeson, now retired from the bench, said: "I am unwilling to comment". Mr McHugh, also retired from the bench, did not respond to emails and phone messages..... 

A group of the most senior female barristers in NSW have lodged a complaint with the Office of the Legal Services Commissioner, following allegations of sexual harassment and indecent assault against Mr Heydon. The 14 silks took their action following the revelation in the Herald that a High Court investigation found Mr Heydon had sexually harassed six former associates of the court. None of the female barristers making the complaint allege they themselves were the subject of inappropriate behaviour by Mr Heydon. 

The statutory body, which acts as the professional watchdog, has powers to investigate Mr Heydon's alleged misconduct. It can determine whether Mr Heydon is a "fit and proper person" under the official admission rules for the legal profession. It can also take disciplinary action against a barrister, or commence disciplinary proceedings in the NSW Civil and Administrative Tribunal. In the most serious cases, a practitioner can be disbarred. 

Complaints to the Office of the Legal Services Commissioner are confidential. 

The move came as the NSW Bar Association president Tim Game SC released a strongly-worded message warning "barristers who engage in sexual harassment can be investigated and disciplined for professional misconduct".

Tuesday, 2 June 2020

For years mainstream media have used a presence on the Facebook platform as an easy way to extend digital audience reach. What could possibly go wrong?


There are reputedly est. 15 to 16 million Australians with active Facebook accounts and many in the mainstream media avails themselves of the digital audience this represents by maintaining their own Facebook pages on which they publish newspaper articles with an accompanying comment, image and headline.

News Corp and Nine just found out the hard way that having unmoderated Facebook pages is never a wise choice.

In July 2017 then 20 year-old Dylan Voller commenced defamation proceedings against three media companies owned by News Corp and Nine Entertainment.

This is a news article abot the third and most recent judgment rendered in the ongoing legal saga.....

ABC News, 1 June 2020:

Three Australian media outlets have lost an appeal about a key ruling holding them responsible for the alleged defamation on Facebook of former Don Dale Youth Detention Centre detainee Dylan Voller. 

The 23-year-old is suing Fairfax Media — now owned by Nine Entertainment — Nationwide News and Sky News over comments posted by members of the public in response to articles they placed on their Facebook pages. 

Last year, a New South Wales Supreme Court judge ruled the media companies were publishers of the comments — and therefore liable for them — and the media companies appealed. 

The NSW Court of Appeal today dismissed the challenge and said it was clear the relevant Facebook pages were created on the basis users would be invited to post comments. 

Justices John Basten, Anthony Meagher and Carolyn Simpson said the organisations "accepted responsibility for the use of their Facebook facilities for the publication of comments, including defamatory comments".  
"It was the applicants who provided the vehicle for publication to those who availed themselves of it," they wrote in the judgment. 

'Turning a blind eye' no defence 

The judges said it was not uncommon for someone to be held liable for publishing defamatory imputations conveyed by "matter composed by another person". 

They drew parallels to cases where the owners or occupiers of buildings had been taken to court over defamatory statements on noticeboards or scrawled in graffiti. 

The court is yet to tackle the question of whether the material in question was defamatory. 

In his initial decision last year, Justice Stephen Rothman said defendants could not escape consequences of their actions by "turning a blind eye". 

He also ruled the defence of innocent dissemination was not available because the defendants were first or primary distributors. 

Mr Voller's statement of claim alleges he was defamed by imputations including that he had "brutally bashed a Salvation Army Officer", had raped an elderly woman, that he committed a carjacking and that he had bitten off someone's ear. 

The comments were posted between July 2016 and June 2017 on pages run by the Sydney Morning Herald, The Australian, Sky News, The Bolt Report and The Centralian Advocate. 

Mr Voller's treatment at the Don Dale Youth Detention Centre, which was the subject of an ABC Four Corners investigation in 2016, sparked a royal commission into youth detention facilities.

The judgment in Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102 dismissed the appeal, ordered the applicants pay the respondent’s costs in the appeal proceedings and dismissed the notice of motion of Bauer Media Pty Ltd, Dailymail.com Australia Pty Ltd and Seven West Media Ltd filed on 23 August 2019 (the latter three media companies having sought leave to appear as amici curiae in the proceedings).

Thursday, 21 May 2020

Morrison Government expects to be forced to refund est. $555.6 million unlawfully taken from at least 449,500 Centrelink clients






In July 2016 the federal Coaltion Government began to issue income compliance notices based on automated data matching.

At the time the then Minister for Social Social Services Scott Morrison expected to clawback an est. $1.7 billion dollars over five years from individuals who were, or had been in the past, receiving a Centrelink pension, benefit or allowance.


By 2019 at least 570,000 of those over 600,000 income compliance notices were considered to be unlawful. As were Australian Taxation Office garnishee notices associated with these alleged debts.


Refunding these wrongfully raised debts would see at least $555.6 million returned to Centrelink clients.


Becoming a member of a class action does not expose a ‘robodebt’ recipient to any additional legal liability with regard to the alleged debt.

However, the Morrison Government is possibly hoping many victims will not realise this and sign the Centrelink Opt Out Notice – Federal Court of Australia – ‘Robodebt’(Social Security Debt Collection) Class Action (VID1252/2019) notices it is currently sending out.

Gordon Legal has outlined possible court dates:

On 6 March 2020 the Honourable Mr Justice Murphy of the Federal Court ordered that the parties hold a mediation prior to 19 June 2020. This is an opportunity for the matter to be resolved with the consent of both parties.

Justice Murphy also ordered that, if the matter does not settle at mediation, a trial will begin in the Federal Court on 20 July 2020 (or if that date is not available, on 21 September 2020).

Services Australia (formerly the Dept. of Social Services-Centrelink) despite its denials continues to raise alleged debts and send out notices.


The Guardian, 18 May 2020:

Hundreds of thousands of Australians affected by the government’s robodebt scheme will receive notices from Centrelink about an upcoming class action under orders from the federal court.

Guardian Australia last month revealed secret government advice showing the commonwealth hopes to settle the case and has privately admitted more than 400,000 welfare debts were unlawfully issued under the scandal-ridden “income compliance program”.

But the parties are yet to reach a settlement, setting up a potential trial as early as July where law firm Gordon Legal will seek interest and compensation as well as the repayment of debts unlawfully claimed by the government.

Under court orders issued in March, the government has been told to identify all potential class action members and send out notices via MyGov or by post about the upcoming court challenge by 25 May.

More than 12,000 people have registered with the firm, but under Australian law people identified as members of the “class” are considered part of the action unless they “opt-out”, which would allow them to pursue their own individual claim.

Labor’s government services spokesman, Bill Shorten, said the government should “settle this case immediately, restore public confidence in Centrelink by allowing the court to be the independent umpire, and pay the victims back their money as well as interest”.

This would allow the hundreds of Centrelink workers working on limiting the government’s robodebt exposure to be moved back to the frontlines of helping their fellow Australians with their social security needs in this time of national challenge,” he told Guardian Australia.

Since July 2015, more than 600,000 debt notices had been sent out under the scheme, which the government conceded was unlawful in federal court in November, while thousands more received letters demanding they prove they were not overpaid by Centrelink.

Some debt recipients had their tax returns seized over the debts, while others were also forced to pay a 10% “recovery fee” on top of the alleged debt.

Gordon Legal believes the case would represent one of the largest class actions in Australian history.

Late last week, the government declined to answer several written questions about the robodebt scheme, successfully applying for public interest immunity in the Senate.

Services Australia declined to answer how many debts had been issued using the unlawful “income averaging” method or whether it would repay victims, including debts recovered from deceased estates.

This question relates to a court case that is currently before the federal court of Australia,” the agency said. “Services Australia will abide by any decision of the court.”

But a ministerial submission to cabinet, leaked to the Guardian, revealed the government hopes to settle the case and that Services Australia expects to “administer 449,500 refunds determined under the programme”, worth $555.6m.

The robodebt class action notices come as the government pushes ahead with plans for an inquiry into class actions in Australia.

Porter last week claimed a “lack of regulation governing the booming litigation funding industry is leading to poor justice outcomes”.

But Labor has argued the inquiry is a response to Gordon Legal’s class action against the robodebt scheme.

If the parties do not reach a settlement, a trial is expected between July and September.

The government’s legal advice shows it expects to lose the class action under Gordon Legal’s claim of “unjust enrichment”, although it believes the compensation claim is less likely to be successful.

This is likely to result in the commonwealth being ordered to repay debts within a timeframe set by the Court, and to pay interest and legal costs,” the advice said.

Court documents show the number of potential victims expanded in March after the government withdrew an earlier claim that people receiving Carer Payment were not subjected to the scheme.

The government has conceded in court that debts that relied on income averaging were invalidly raised, but claims it should not have to pay compensation because it does not hold a common law duty of care to welfare recipients…...

Friday, 15 May 2020

Law Council of Australia is very concerned with some aspects of Minister for Home Affairs Peter Dutton's proposed amendments to the Australian Security and Intelligence Act 1975 (Cth) (ASIO Act)


"The Australian Security Intelligence Organisation Amendment Bill 2020 will modernise ASIO's powers and, in doing so, improve ASIO's capacity to respond to these threats [by]....lowering the minimum age of a questioning subject in relation to a terrorism matter from 16 to 14...empowering the Attorney-General to issue warrants, including orally....allow non-intrusive tracking devices, such as a device placed on a vehicle, or in a person's bag, to be authorised internally...." [Minister for Home Affairs & Liberal MP for Dickson Peter Dutton in House of Representatives Hansard, 13 May 2020]

Law Council of Australia, media release, 13 May 2020:

Statement on proposed amendments to the ASIO Act by Law Council President, Pauline Wright


The Law Council of Australia is very concerned with some aspects of the proposed amendments to the Australian Security and Intelligence Act 1975 (Cth) (ASIO Act) released today in parliament.
If adopted, the amendments would redesign the Australian Security and Intelligence Organisation’s (ASIO’s) compulsory questioning warrant regime and repeal its specific detention powers.
It would also make some significant changes to ASIO’s surveillance powers, including permitting warrantless (that is, internally authorised) surveillance in relation to the use of certain tracking devices.
The Law Council welcomes the repeal of the ASIO detention regime in relation to the investigation of terrorism, which is consistent with its longstanding policy position. However, the amendments propose a re-design of the use of questioning warrants and we are concerned that there may be very limited time to scrutinise the proposed laws, which are lengthy, complex and highly intrusive on individual rights.
The proposal to reduce the age of minors who may be subject to questioning from 16 to 14 years and the conferral of powers on police to apprehend and detain persons for the purpose of bringing them in for compulsory questioning also requires detailed scrutiny by the Law Council, amongst the many other amendments.
The Law Council is concerned that the government is now rushing the Bill, despite having had over two years to develop the re-designed questioning legislation since the PJCIS tabled its report in May 2018.
Now there is a sense of urgency given that ASIO’s current questioning powers are due to sunset in 7 September, and the amendments are set to commence by or before that date.
This is not a Bill to be hurried through.
The Law Council will need to carefully scrutinise the Bill and we look forward to providing a comprehensive submission to the inquiry. 
~~~~~~~~~~~~~~~~~
The Australian Security Intelligence Organisation Amendment Bill 2020 can be found here.

The Sydney Morning Herald, 14 May 2020:

With Federal Parliament flat out dealing with the social and economic fallout of the COVID-19 pandemic, now is hardly the right time for a government to introduce legislation giving ASIO the power to question 14-year-old children, interfere with the rights of legal advisers, and enable the tracking of individuals without the need for a warrant..... 

Dutton's law would allow ASIO to seek a warrant so it can question young people aged 14 to 18 if they are a target of an ASIO investigation into politically motivated violence: broad criteria to say the least. 

Then there is a serious attack on the fundamental right of a person, whether they be 14 or 40, to choose their own lawyer when they are subject to investigation by ASIO. The bill allows for a prescribed authority, which is a judge or Administrative Appeals member selected by the government, to stop a person ASIO is seeking to question from contacting their lawyer if "satisfied, based on circumstances relating to the lawyer, that, if the subject is permitted to contact the lawyer, a person involved in activity prejudicial to security may be alerted that the activity is being investigated, or that a record or other thing the subject may be requested to produce might be destroyed, damaged or altered". 

This power is sweeping and allows for hearsay "evidence" to be used. All ASIO would have to do is tell the judge or AAT member that it has heard from "sources" that the lawyer requested by the detainee is a security risk. 

But even if the lawyer passes muster and sits with his or her client, the ASIO officers doing the questioning can have the lawyer removed. The explanatory memorandum of the bill says that can happen, "if the lawyer's conduct is unduly disrupting questioning. This may be the case where, for example, a lawyer repeatedly interrupts questioning (other than to make reasonable requests for clarification or a break to provide advice), in a way that prevents or hinders questions being asked or answered." So if the ASIO officers are badgering or harassing a frightened 14-year-old, or asking questions that are completely irrelevant, they have carte blanche. 

As a lawyer, one hears and reads stories about colleagues in authoritarian states where such powers are given to and used by security agencies, but one never expected it in democratic Australia....

Sunday, 9 February 2020

State of Play in Scott Morrison's Personal War On The Poor And Vulnerable: at least 9,600 angry people are taking on the federal government over 'robodebt'


These emails are just two examples of correspondance which has seen the light of day, concerning the legality of Morrison Coalition Government's Dept. of Human Services-Centrelink income compliance program or 'robodebt', since government made admissions in Amarto v The Commonwealth and was notified of an intent by certain persons to commence a class action arguing that the Commonwealth has taken money from Centrelink recipients unjustly.











The emails indicate the federal government's knowledge that sole use of the automated data matching system to calculate a 'robobebt' was unlawful. 

However they do not indicate exactly when the federal government became aware of this fact and Minister for Government Service & Liberal MP for Fadden Stuart Robert is refusing to disclose the exact date - in large measure because at least 9,600 people have now registered to take part in a class action being undertaken by Gordon Legal.

This class action asks the Federal Court of Australia not just to rule on the legality of 'robodebt', but also to determine whether the so-called collection fees levied by Centrelink should be refunded, whether those who have repaid all or part of those amounts should be paid interest and, whether the persons affected are entitled to compensation for any distress or inconvenience caused.

Gordon Legal has said it is pursuing the class action despite the government’s backdown, given that Centrelink has not promised to return the money taken from its clients nor promised to provide compensation for inconvenience and distress.

Tuesday, 28 January 2020

Lismore Diocese in the NSW Northern Rivers region once again focus of historical child sexual abuse allegations


Former Catholic priest Clarence David Anderson died in retirement at Toowoombah Qld in April 1996 and peacefully rests in a Goonellabah NSW cemetery, but his alleged victims are still seeking justice....

Newcastle Herald, 23 January 2020: 

A PARISH priest is suing a NSW Catholic diocese and an order of nuns [believed to be the Presentation Sisters] in what is believed to be the first Australian case of a serving Catholic priest seeking compensation for alleged child sexual abuse by a priest. 

 The Diocese of Lismore has denied liability for alleged crimes by the late charismatic "surfer priest" Clarence "David" Anderson against the then 12-year-old altar boy in the 1960s, and has given notice it will seek a permanent stay against the priest's case in the NSW Supreme Court. 

The move, initiated by the diocese last week, means survivors are "back to square one" in some dioceses despite legal reforms following the Royal Commission into Institutional Responses to Child Sexual Abuse, the priest's lawyer Mark Barrow said. 

The permanent stay application is despite the diocese offering compensation to two families in 2004 who alleged Anderson sexually abused two brothers aged 9 and 14 in the Macksville area between 1966 and 1968, and two other brothers, aged 9 and 15, in Tweed Heads parish in 1969.

Melbourne-based Broken Rites put the two families in touch with each other after both were told they were the first to complain about Anderson, and that the diocese had no knowledge of allegations about him. Anderson was a priest for just seven years. One of his alleged victims was advised by the Diocese of Lismore in 2002 that Anderson resigned in 1970. He died in 1996......

The Guardian, 25 January 2020:

The abuse is said to have occurred at a church on the north coast of New South Wales, which sat on the grounds of a boarding school....

It is the second time in recent months that the diocese has attempted to have an abuse case thrown out due to delay.
In December, the Lismore diocese successfully applied to permanently stay a case brought by a woman who alleged she was abused in the 1940s by a priest named John Curran, who has since died.
The church’s approach to delay conflicts with findings of the child abuse royal commission.
According to Broken Rites; In 2020, a legal firm is acting for eleven of Father David Anderson's victims, suing the Lismore Catholic Diocese for compensation.

Thursday, 12 December 2019

Grafton civil rights law firm has a win in the High Court of Australia which should stop NSW Police from unlawfully arresting people for the sole purpose of questioning them when there was no intention at the time of arrest to bring them before a magistrate


The Grafton civil rights law firm of Foott Law & Co. had a win in the High Court of Australia on 4 December 2019 in the matter of a 2013 wronfgul arrest. 

In this lengthy progession through the lower courts to the High Court solicitor Joe Fahey was assisted by Dominic Toomey SC, Dallas Morgan and Dean Woodbury.

The High Court dismissed the appeal in State of New South Wales v Robinson and ruled concerning the power of a police officer to arrest a person, without a warrant, under s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("the Act") when, at the time of the arrest, the officer had not formed the intention to charge the arrested person with an offence. A majority of the High Court held that s 99 of the Act does not confer a power to arrest a person in such circumstances.....

The High Court unanimously held that in New South Wales, at common law, an arrest can only be for the purpose of taking the arrested person before a magistrate (or other authorised officer) to be dealt with according to law to answer a charge for an offence ("the single criterion"). Nothing in the Act displaced that single criterion. An arrest under s 99 can only be for the purpose, as soon as is reasonably practicable, of taking the arrested person before a magistrate (or other authorised officer) to be dealt with according to law to answer a charge for an offence. A majority of the High Court held that it followed that the constable did not have the power to arrest Mr Robinson pursuant to s 99 when, at the time of the arrest, the constable had not formed the intention to charge him. The arrest was unlawful.