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
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.
Did the court find specific performance to be an adequate legal remedy in this case?
III. Issue. The issue is whether the district court erred in granting summary judgment in favor of the employer appellee on the employee appellant’s sexual harassment claim, and whether the court was right in excluding evidence regarding the sexual
Counsel of the appellant sought a certificate from the judge to bring an interlocutory appeal to the Court of Appeal against the admissibility of the coincidence evidence. The Court of Appeal allowed the appeal, ruling the coincidence evidence inadmissible. It adopted a different approach than that in NSW in reviewing the ruling of the Evidence.
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...
According to the Legal Aid Society (2016), a fair hearing
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).
Gibraltar questions the fairness of the Tribunal for starting appeal proceedings that Ms. Harvey had not requested. What questions the Tribunal’s power is that they have the authority to appeal a judge's decision and the scope of submissions it can end up to if it does have that right. Northwestern Utilities Ltd. v. Edmonton established the principle that administrative tribunals, despite being able to participate, their decisions should be based on arguments and evidence according to the respective jurisdiction, refraining from directly interfering with the other parties' interests on the critical issues. On the other hand, Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner) started a change from the traditional rule-and-exception approach, emphasizing the importance of tribunal neutrality and the decision-making must be careful and backed up by information, while granting the court the permission to determine whether a tribunal can defend its decision issues and the extent of having such
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
It was argued by Cheung the reference by Lord Scott in Gamlestaden is still a summary of principles derived from Re Chime Corp. It is submitted that the reading of the case of Gamlestaden as it is does not state any criteria to allow corporate relief in unfair prejudice petition but rather the decision just endorsed that the court “may make such order as it thinks fit for giving relief in respect of the matters complained of” under an unfair prejudice petition. This could be a cautious approach not to restrict the ability of the court to may make such order as it thinks fit which would not be available if a test is introduced.
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:
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