The principles that apply when considering whether two proceedings should be heard together were discussed by Hannon DPJ in Goodwin v City of Playford [2014] SAIRComm 5; Goodwin v Local Government Association of South Australia [2014] SAWCT 13 ('Goodwin'). In that matter, the applicant worker made an application for an unfair dismissal and workers compensation proceedings to be heard sequentially, with evidence given in one proceeding being received as evidence in the other. Both respondents opposed the application.
The applicant's workers compensation claim stemmed from the suspension of employment pending investigation into allegations of serious and wilful misconduct at work. Whilst the employer was awaiting the applicant’s written response
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Issue estoppel operates to preclude the raising of an ultimate issue of fact or law in a subsequent proceeding that was necessarily resolved as a step in reaching the determination made in an earlier judgement. Such is the ratio that follows Ruf v General Motors Holden's Automotive Ltd ('Ruf'), in which it was determined that a decision in the Fair Work Commission will resulted in a party being estopped from re-litigating matters determined in the Commission, such that that the finding will be binding on the matter heard in the SA Employment Tribunal as it would create an issue estoppel by virtue of it making a finding. Issue estoppel is concerned with the determination of factual or legal issues. The Tribunal in Ruf cited Starke J's articulation of the scope of the doctrine of issue estoppel in Blair v Curran in which His Honour …show more content…
Counsel essentially attempted to re-litigate certain issues decided by the Commission, namely submitting that the applicant worker had not engaged in serious and wilful misconduct and further that the applicant worker had not attempted to deceive the employer. The Tribunal stated that permitting counsel to re-litigate those issues would be to disregard to the Commissioner's finding, and further that there is a need for judicial determinations to be final, binding and conclusive to preserve public confidence in the administration of justice. Whilst the Commission is not a Court, issue estoppel is restricted to decisions of Courts. Accordingly, the Tribunal found that the respondent was entitled to regard those issues as having been 'finally and conclusively dealt
Analysis / Ruling of the Court. The district court granted the employer’s motion for summary judgement on the sexual harassment claim due to the fact that Sherry Lynch treated both men and women equally in this case; that is, she behaved in the same vulgar and inappropriate way towards both genders. For this reason, Smith’s gender was not a contributing factor to the harassment, which is one of the conditions that would have to be met for the sexual harassment claim. The appellate court agreed and affirmed the district court’s judgement. The district court ended up excluding evidence pertaining to the sexual harassment claim because the sexual harassment claim had been dismissed on summary judgement, and because the court decided that the details of the harassment bore little relevance to the retaliation case whereas this evidence would be unfairly prejudicial to Hy-Vee. The appellate court affirmed the district court’s judgement. Smith did not offer any specifics on what evidence she would have wanted to present, which made it hard for the court to determine whether this evidence was material to the retaliation case or not. In her opposition to the motion in limine, she said she only wanted to discuss the harassment case in general, including mentioning that Lynch had harassed/touched her inappropriately. Hy-Vee had no objection to this, and Smith got to present this much evidence in the trial. Therefore, the appellate court found that she waived any objection to the
This case commentary discusses the different approaches used to be taken in Victoria and NSW, presuming that the admissibility of the Evidence in ss 97, 98 and 101 is of the same decision, not separate decision .
The second issue is whether or not the defendant has an obligation to reimburse for an injury. The outcome of this second issue depends whether or not it is rational for the defendant to have to pa...
The application of Browne v Dunn is established in Australia in both civil and criminal cases, however its appliance in the criminal ones differs. There is some vagueness as to when precisely the rule is breached and the penalties that apply to a party in breach. The question that arose recently is whether Browne v Dunn applies to criminal proceedings at all. The case of MWJ v R confirmed that Browne v Dunn applied to criminal proceedings in Australia, despite some differences in judicial reasoning. The case was further followed by R v MAP which moreover elaborates certain aspects of the following rule. Gleeson j and Heydon J stated that “the requirement is accepted and applied day by day in criminal trials”. One of the principles the High court articulated was that the rule must be applied with caution, when considering the conduct of the defense, this was emphasized with reference to the cases of R v Birks and R v Manunta.
According to the Legal Aid Society (2016), a fair hearing
The decision in Equuscorp is significant, as it has made clear several principles that were once ambiguous under Australian law. It ratifies that restitutionary remedies are unavailable for a claim for money had and received where recovery would reduce coherence in the law. Furthermore, Equuscorp has confirmed that a bare cause of action can be assigned where the assignee has a genuine commercial interest in its enforcement.
9. Woodgate, R., Black, A., Biggs, J., Owens, D. (2003). Legal Studies for Queensland, Volume 1, ForthEdition, Legal Eagle Publications: Queensland. 10. Woodgate, R., Black, A., Biggs, J., Owens, D. (2003).
The contradictory outcomes of cases presenting very similar facts to the court leads some jurists to cry out for reform and to denounce the defects in the present common law rules. Some, are supportive of the implementation of a statutory obligation to make reparation for wrongfully caused mental
Lord Selborne in the case of Wilson v Northampton and Banbury Junction Rly Co[ (1874) 9 Ch App 279.] had outlined the purpose of specific performance. His Lordship stated that specific performance will only be granted when it can by that means do more perfect and complete justice. The purpose of granting specific performance is to ensure that justice can be uphold as perfect as it could be. However, the specific performance will only be granted when there is inadequate and insufficient remedy of damages to any case of breach of
Did the court find specific performance to be an adequate legal remedy in this case?
The distinction between an unfair prejudice petition and a statutory derivative action has always been in the nature of remedy sought by the claimant. This is arguably the point where a distinction is drawn as to whether a statutory derivative action or an unfair prejudice petition should be pursued. A d...
The fundamental purpose of the requirement that an originating process (“OP”) be served by personal service, prior to the commencement of proceedings, is to promote procedural fairness and natural justice . This essay will examine personal service in the context of civil procedure and the governing procedural rules pertaining to the personal service of an OP in New South Wales , as outlined in the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). To avoid doubt, unless the context indicates otherwise, “defendant” and “claim” shall include the singular and the plural as an OP may comprise of multiple defendants and/or multiple claims.
The Unfair Dismissals Act 1977-2007 was set up to give clear guidelines on how an employer’s decision to dismiss an employee may be contested by an independent body. The main purpose of this Act is to shield employees from unfair dismissals. It also provides for an adjudication system and a redress system to those employees whose dismissals have been found to be unfair.
... with the aggrieved worker and representative meeting with the supervisor involved, followed by an appeal system with strict time limits and ultimately ending in binding arbitration. When management and the union cannot resolve a grievance submitted by a union, the union must decide whether to proceed to the final step of the grievance procedure: arbitration. Arbitration is an adversary proceeding like a trial in court. An arbitrator’s function is usually to interpret the collective bargaining agreement between the parties, not to apply his or her standards of what is right in a given situation. The courts have sought to compel labour and management to a peaceful resolution of grievances through arbitration. The Supreme Court has given support to the arbitration process in a series of decisions, and judicial deferral to arbitration has become a basic tenet of national labour policy.
Section 188 of the Act (Labour Relations Act) stipulates that a dismissal is unfair if the employer fails to prove that the reason for the dismissal is a fair reason based on the misconduct or incapacity of the employee, or is based on the employer's operational requirements, and that the dismissal was effected in accordance with a fair procedure. Persons or Employers considering whether or not the reason for dismissal is of fair reason is in accordance with fair procedure must take into account any relevant Code of Good Practice issued in terms of Schedule 8 of the Act – as discussed here-in: