Metgasco Limited putting words in the Supreme Court's mouth in July 2014

Snapshot from The Northern Star 12July 2014

Coal seam/tight gas exploration and mining company Metgasco Limited states that the court made it clear the documents "should be produced by late August".

Actually, the court decision in Metgasco v Minister for Resources & Energy [2104] was that Metgasco's Notice to Produce dated 12 June 2014 be set aside without tying any future production of documents to a specific time period and, I suspect it would be rather surprised to find ít has allegedly tied the Minister into an August timetable instead of a possible "later appropriate time".

Specifically, the court stated: at 17 There is some force in the Plaintiff's submission that the first decision of the delegate remains a relevant one, and that the documents associated with that decision will be relevant to the issues to be determined. However, it is necessary to await the Defendant's response and evidence on which the Defendant relies before the Defendant should be required to produce documents not relied upon by the Defendant in defence of the Summons; at 20 I do not consider that what is sought in the Notice to Produce complies with what may be sought under rule 21.10. That conclusion is reinforced by the prematurity of the Notice to Admit when the only document before the Court referred to in that rule is the Summons. Only two documents are referred to in the Summons, and one of those is the letter containing the decision of 14 May 2014; and at 27 In the light of my determination that the Notice to Produce is premature I consider that it would still be open to stand over the Notice to Produce and the Defendant' Motion to set it aside until such time as the amended pleadings are finalised and the evidence is complete. However, that is unlikely to be finalised in a way that would enable me to continue to hear the Notice of Motion on a part-heard basis. Further, the filing of amended pleadings and the serving of the evidence on both sides may well change the basis upon which documents need to be, or are, sought by the Notice to Produce. The better course, it seems to me, is to set aside the Notice to Produce but without precluding the Plaintiff from serving a further Notice to Produce if so advised at a later appropriate time.

Morgan Research does itself no favours by airing the Morgan Group's legal problems in public

According to the Federal Circuit Court; Sham contracting arrangements enable employers to avoid legal obligations such as payment of payroll tax, workers compensation premiums, employee entitlements and superannuation contributions.

Linkhill Pty Ltd, a holding company of the Morgan Group, was found to have engaged in sham contracting and other contraventions of law.

This is the position of a director of that company, as set out on the Morgan Research website on 20 June 2014:

Gary Morgan responds to the Federal Court decision regarding Linkhill.

In an extraordinary decision today, Linkhill Pty Ltd was fined $313,500 in the Federal Circuit Court for supposedly ‘underpaying’ ten tradespeople and labourers, who were actually paid almost $300,000 more than the Award rates and benefits to which they were entitled during the periods of their engagement.

The ten tradespeople, ranging from an electrician and carpenters to several short term labourers, were all found by Federal Circuit Court Judge John O’Sullivan to be employees (rather than contractors) and were found to have been underpaid despite each receiving payment for their services that was substantially more than their full Award entitlements (including overtime, leave and redundancy payments)…..

Excerpt from the court judgment in The Director of The Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.7) [2013] FCCA 1097 (20 December 2013):

Conclusion

238. An examination of the totality of the relationships between each of the individual workers and Linkhill, the system and arrangements pursuant to which they worked and the work practices which regulated that work, clearly establishes by reference to the established indicia that each of those relationships were in the nature of employment and not independent contractor relationships. The limited indicia which suggest otherwise do not alter or detract from the central features of the relationships established. Those central features were the fact that the contracts in issue were contracts quintessentially in the nature of contracts of employment for the personal provision of each workers labour to Linkhill. Linkhill reserved to itself control over where, when and to what ends that labour was to be directed and it directed and supervised the performance of the work of each worker on a daily basis. In providing their labour in this way, none of the workers could be said as a matter of fact to have been conducting their own business but plainly did so in the furtherance of and as part of Linkhill’s business. The fact that the workers were required to supply an ABN and did not have taxation deducted from the payments they received from Linkhill and were paid pursuant to invoicing arrangements imposed by Linkhill does not alter these fundamental features of their engagement. The true character of those relations is likewise not altered by the fact that four of the workers concerned had previously entered into written contracts with Linkhill which describe those relations as contracts for services.

239. This conclusion is supported by the evidence summarised in Part 2 of these submissions relating to what occurred at the end of the relevant period of engagement of each of Walker, Darrigrand, Elliott, Najdoski and Lowery. Immediately following the termination of their respective contracts the characterisation of which is in issue in this proceeding, each of those workers entered into a contract of employment with Linkhill. Their evidence is that, under these contracts of employment, nothing changed in relation to the work they had previously performed for Linkhill.^[653] Linkhill’s preparedness to explicitly characterise the continuing engagement and work of these individuals as being in the nature of employment, reveals the true character of the previously existing relationships. It also shows that the representations previously made to the contrary by Linkhill, considered in the next Part of this submission, at best merely accorded with Linkhill’s own preferences as to the character of its relationships with the workers, or at worst were a deliberate façade constructed by it to disguise the true character of those relationships.”

Excerpt from The Director of the Fair Work Building Industry Inspectorate v  Linkhill  Pty Ltd (No.9) [2014] FCCA 1124 (20 June 2014):

ORDERS

(1) A combined penalty of $313,500 is imposed on the respondent for the contraventions declared in The Director of the Fair Work Building Industry Inspectorate v  Linkhill  Pty Ltd (No.8) [2014] FCCA 225 for the reasons set out in The Director of the Fair Work Building Industry Inspectorate v  Linkhill  Pty Ltd (No.7) [2013] FCCA 1097.
(2) The penalty referred to in paragraph (1) is to be paid into Consolidated Revenue within 30 days of the date of this order.

By complaining of the outcome on the Morgan Research website all Linkhill Pty Ltd and Morgan Research have achieved is to widen knowledge of the court judgement and cast doubts on the conduct of the entire Morgan Group.

Statement by the NSW Attorney General regarding Judge Garry Neilson, 11 July 2014

Statement by the NSW Attorney General regarding Judge Garry Neilson 
Issued: Friday, 11 July 2014

As Attorney General I want the NSW community to have confidence in the NSW legal system.

Confidence in the judiciary is a critical part of ensuring broader community support for the legal system.

The majority of the judiciary in this State do extremely good work day in and day out for the community.

With that context I was extremely concerned to read the comments of His Honour Judge Garry Neilson in regard to his views on incest.

In my view the community would be rightly appalled at his reported comments.

Incest is completely reprehensible, unacceptable, disgusting and criminal.

Accordingly I have taken advice as to the appropriate course and have today determined that I will, on behalf of the NSW Government, and on behalf of the NSW community refer His Honour to the Judicial Commission of NSW.

I will also be writing to The Chief Judge of the District Court to request that His Honour remove Judge Neilson from undertaking any criminal trials whatsoever until the Judicial Commission has dealt with the necessary processes it must undertake.

I will be making no further comment and will allow the Judicial Commission to take its appropriate course. 

______________

BACKGROUND

Excerpt from an article in The Sydney Morning Herald on 11 July 2014:

District Court Judge Garry Neilson said just as gay sex was socially unacceptable and criminal in the 1950s and 1960s but is now widely accepted, “a jury might find nothing untoward in the advance of a brother towards his sister once she had sexually matured, had sexual relationships with other men and was now ‘available’, not having [a] sexual partner”.

He also said the “only reason” that incest is still a crime is because of the high risk of genetic abnormalities in children born from consanguineous relationships “but even that falls away to an extent [because] there is such ease of contraception and readily access to abortion”.

Judge Neilson made the extraordinary and bizarre comments in the case of a 58-year-old man, known for legal reasons as MRM, who is charged with repeatedly raping his younger sister in the family’s western Sydney home in 1981.

The man had earlier pleaded guilty to sexually assaulting his sister when she was 10 or 11 years old in 1973 or 1974 after police recorded a telephone conversation between the siblings in July 2011 in which he admitted to having sexual contact with her when she was “a kid”.

But he has pleaded not guilty to the charge of sexual intercourse without consent, with an alternative charge of incest, regarding the 1981 events.

On April 7 a jury was empanelled and the Crown Prosecutor requested the jurors be told of the earlier misconduct to show MRM had a tendency to have a sexual interest in and have sexual intercourse with his sister.

The Crown argued that without the background information, the jury might find it hard to understand why MRM began raping his sister “out of the blue” and why she did not report it to her parents or police.

In the mid-1970s MRM had warned her not to tell their parents because they had just lost another son in a car crash and she remained fearful of upsetting her parents when the abuse recommenced in 1981.

But Judge Neilson refused to admit the evidence, saying the sexual abuse which had occurred when the girl was 10 or 11 and the youth was 17 occurred in a different context to the sex which happened when she was 18 and he was 26. By 1981, she had had sexual relationships with two men and had a young child.

“By that stage they are both mature adults. The complainant has been sexually awoken, shall we say, by having two relationships with men and she had become ‘free’ when the second relationship broke down,” Judge Neilson said.

“The only thing that might change that is the fact that they were a brother and sister but we’ve come a long way from the 1950s … when the position of the English Common Law was that sex outside marriage was not lawful.”

He went on to say incest only remains a crime “to prevent chromosomal abnormalities” but the availability of contraception and abortion now diminishes that reason.

“If this was the 50s and you had a jury of 12 men there, which is what you’d invariably have, they would say it’s unnatural for a man to be interested in another man or a man being interested in a boy. Those things have gone.”

On Tuesday Crown Prosecutor Sally Dowling SC asked the Court of Criminal Appeal to remit the case to a judge other than Judge Neilson because of the "misogynistic" attitude he displayed towards the complainant….

Excerpt from an article in The Sydney Morning Herald on 12 July 204:

On Friday it was revealed Judge Neilson had in November 2011 ruled the sexual assault of a man against his 16-year-old niece was less serious because there was ''no ejaculation'' and therefore the victim had not been put ''at risk of pregnancy or disease''.

In March 2013 the appeal court cut his non-parole period by six months but found Judge Neilson's comments regarding ejaculation were ''entirely questionable'' and his attitude towards pregnancy and sexually transmitted diseases ''plainly had no foundation''....

In 2013 His Honour Judge Neilson was a member of the Professional Development (Education) Committee. The District Court, in partnership with the Judicial Commission of New South Wales, provides this continuing judicial education program for judges.

The program aims to:

* Enhance professional expertise

* Facilitate the development of judicialknowledge and skills, and

* Promote the pursuit of juristic excellence.

With a focus on interactive learning, the program is based on enhancing skills, attitudes and knowledge in a judicially relevant environment. 

In 2013  he was also a member of the Governing Council of the Judicial Conference of Australia. The Judicial Conference of Australia was established in 1993. Its objects relate to the public interest in maintaining a strong and independent judiciary within a democratic society that adheres to the rule of law. The Judicial Conference of Australia consists of judges and magistrates drawn from all jurisdictions and levels of the Australian court system. All Australian courts are represented on the Governing Council.

Did Hogan really say that?!

Letter to the editor in The Daily Examiner on 8 July 2014:

Kevin's tongue slips

Kevin Hogan's slip of the tongue must be highlighted so that all electors in the Page electorate can now realise his comments on local radio on Wednesday morning appertaining to what he does for the electorate were "nothing" and laughed as he repeated "I don't mind doing nothing."

A typical National's answer as they don't have to do anything to be re-elected.

Charles John Lincoln

Gulmarrad

Sexism in the National Party of Australia - why am I not surprised?

It’s boys behaving badly again in a political party – this time the NSW Nationals.

The Sydney Morning Herald 4 July 2014:

A NSW Nationals MP verbally attacked a female cabinet minister, threatening to "tear her a new orifice" and saying she had "never had a real man", because he was angry at her department's decision.

The attack on then environment minister Robyn Parker was made by Murray-Darling MP John Williams in front of about 100 Nationals members during his bid for preselection for the upper house in April. 

Ms Parker was raped as a teenager, and had spoken about her ordeal in parliament in 2004, recalling she nailed her bedroom windows shut in the aftermath.

Multiple sources who attended the Nationals preselection meeting on April 4 at Parliament House said they were offended by Mr Williams' comments. The event was filmed, but the slurs went uncensured by party leaders in the room, including deputy premier Andrew Stoner.

Mr Williams emerged as an endorsed candidate, albeit in the almost unwinnable fourth position.

Critics said the attack highlighted a "boys' club" culture within the Nationals that was alienating women from politics. The leak of the incident comes as the number of women in the NSW upper house from all parties is set to plummet…..

Another Spot the Difference

The Daily Examiner (and probably all its stablemates in the APN network) provided readers with a bit more brain food with its presentation of Ginger Meggs on Thursday July 10.

Daily Examiner

GoComics

Remember, send your entries to The Daily Examiner. Surely the Examiner can find a few prizes for its keen-eyed readers.

Credits: The Daily Examiner and GoComics.com