While VCAT is an informal and cost efficient jurisdiction to initiate proceeding in, it is not generally a favorable jurisdiction for litigants seeking an order for costs.

The Victorian Civil Administrative Tribunal (VCAT) takes the prima facie position not to award costs unless there are justifiable grounds for VCAT to exercise its discretion pursuant to Section 109 (3) of the VCAT Act.

The Tribunal applies the test stringently under Section 109 (3) of Act.

Section 109 (3) of the VCAT Act states the following:
  (3)     The Tribunal may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to—

        (a)     whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as—

              (i)     failing to comply with an order or direction of the Tribunal without reasonable excuse;

              (ii)     failing to comply with this Act, the regulations, the rules or an enabling enactment;

              (iii)     asking for an adjournment as a result of (i) or (ii);

              (iv)     causing an adjournment;

              (v)     attempting to deceive another party or the Tribunal;

              (vi)     vexatiously conducting the proceeding;

        (b)     whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

        (c)     the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;

        (d)     the nature and complexity of the proceeding;

        (e)     any other matter the Tribunal considers relevant.

Of course, there are cases where costs have been awarded at the Tribunal.

In Australian Federation of Consumer Organisations Inc. v Tobacco Institute of Australia, 19, Morling J ordered that the respondent pay the applicant’s costs on an indemnity basis.  Morling J stated:

‘I do not think it would be in the public interest for a litigant in the position of the applicant to be heavily out of pocket in consequence of the public spirited action it has taken’.

Costs are an important consideration when choosing which forum to bring proceedings under. Litigants should therefore appreciate that VCAT does not easily give out orders for costs. VCAT will have regard to each of the factors set out under Section 109 (3) and the Tribunal will apply the test stringently.

Written by RSG Lawyers.

Footnotes provided upon request.

If your offshore Australian student visa application has been refused, it does not mean that you are barred from making another application.

However, it is important that you closely consider the Decision Record which will specify the reasons why the Department of Home Affairs (DHA) has refused the visa application as your immigration history (refusal) will be a relevant consideration if you lodge a new Australian student visa application.

You must address the concerns that have been raised by the DHA stated in the Decision Record and further ensure that you meet all of the relevant Australian immigration law criteria in your new visa application.

Some considerations for your new student visa application:

A valid Confirmation of Enrolment (CoE) – if your CoE has expired, you will need to ensure you extend the CoE from the Institute that initially issued it to you. You can also obtain a CoE from a new Institute if you wish.

Financial documents – you must ensure that you have access to the specific amount of funds to cover for your travel, accommodation and study in Australia. If you have previously provided a bank statement from you or your sponsor you may be requested for an up-to-date financial statement.

Notarised or certified documents – it is always best to provide notarised or certified documents to the DHA as this will give the case officer certainty as to the genuineness of the documents you are providing.

GTE and motivational statement – the GTE and motivational statement are very important documents in an Australian student visa application. These documents must specify why you consider yourself to be a Genuine Temporary Entrant and why there is a need for you to study the intended course in Australia. Some factors relevant to both the GTE and motivational statement are your age, the political situation of your Country, your economic circumstances, your educational and work history, what you intend on doing after the completion of your course in Australia and various other considerations. You can view the criteria the DHA uses to assess your student visa under the Ministerial Direction per Section 499 of the Migration Act (you can view it here: https://immi.homeaffairs.gov.au/visa-subsite/files/direction-no-69.pdf).

DHA assessment – please note that it is common for DHA processing officer to contact you by telephone and ask you various questions about the reasons for your study in Australia. This telephone call to you may be without any notice. Therefore, it is imperative that you are well prepared to discuss your application.

RSG Lawyers has assisted many international students in successfully obtaining an Australian student visa. We are immigration lawyers (not agents or consultants). We take care in preparing your application and can assist with the whole process including:

Assistance with obtaining a CoE.
Health Insurance.
Preparation of documents.
Lodgement of the student visa application.

If you require any assistance you are welcome to contact our office through the below mentioned details.

Contact:

admin@rsglaw.com.au

(03) 9350 4440

Footnotes available upon request.

Written by RSG Lawyers, all rights are reserved.

Under the Road Safety Act 1986 and the Road Safety (Drivers) Regulations 2009, you may be charged with the offence of excessive speed if the police find that you:

• drove over the speed limit by more than 25km/h; or
• went faster than 130km/h.

Harsh penalties apply for such an offence. There are automatic and mandatory licence suspension sentences for drivers who excessively speed. As per Schedule 5 of the Road Safety Act 1986, the table below provides the minimum licence suspension periods for a range of amounts over the speed limit.

Normally, the magistrate may allow you to keep your licence. However, for excessive speed offences the magistrate is obliged to suspend the licence for the equivalent minimum period.

Whether you are found guilty or not depends on the facts and circumstances of your case. The police must prove that you were driving and drove over the speed limit.

Possible defences if you are charged with this offence include:

• that you had to speed because of an emergency;
• that you lost conscious while driving such as you had a seizure or a heart attack;
• that the speed detector was faulty (you would need an expert to explain this in court);
• that you have strong evidence to prove that you were not speeding.

It is not a defence:

• To argue that you were running late to work or a function;
• To say that your speedometer was not working;
• Not knowing the speed limit.

If you find yourself charged with excessive speeding, please do not hesitate to contact our office for assistance.

By Guner Hussein, Solicitor at RSG Lawyers.

Footnotes available upon request.

In Victoria, a police member has the power to require you to undergo a Preliminary Breath Test (PBT) if they believe that you:

• were or you are driving or in charge of a motor vehicle;
• had driven a motor vehicle in the last 3 hours;
• are sitting in the driver’s seat of a motor vehicle with the ignition turned on;
• instructing or sitting next to a learner licence holder who is or was driving a motor vehicle.

Generally, you must comply with a police officer’s direction to conduct a Breath Test. Failure to do so is an offence and you could face a conviction with a penalty of a substantial fine and a disqualification of your licence for 2 years and possibly prison if you have prior drink driving offences or failures to comply.

There are some defences to refusing to undergo a Breath Test in Victoria. The main defence being the refusal for medical reasons, which requires substantial expert medical evidence. Further, if the police do not have lawful grounds for requiring you to undergo a PBT, then you may have a defence for refusing to comply.

It is always a good idea to comply with the directions of a police officer if they require you to undergo a Breath Test, as the consequences of refusing are quite severe. However, if you believe you have substantial grounds for your refusal you should seek legal advice immediately.

By Oguzhan Sheriff, Partner at RSG Lawyers.

Footnotes available upon request.

In NSW and Victoria it is unlawful for a medical practitioner to treat an adult without their express consent. Unless it is a case of emergency, common law supports the right of an adult to give their doctor consent if that adult is of sound mind a has the capacity to understand the nature and effect of their decision. This is essentially because of the notion that everyone has a right to determine what happens to their body.

Legal requirements for obtaining consent

Before a doctor treats you, they must establish that you have given your informed consent to the treatment. This can be established verbally, by writing, or through implied consent. The four legal requirements that must be met to give valid consent are:

• The patient must have the mental capacity to consent to the procedure;
• Consent must be given voluntarily;
• The consent given must be related to the procedure in question; and
• The patient must be given proper information about the procedure before giving consent.

As part of their duty of care, a doctor must explain to their patients the nature of the medical problem; their method of treatment; any foreseeable risks that may occur; and the cost of the procedure if applicable.

When a patient cannot consent to treatment

In Victoria, the laws concerning medical treatment have been supplemented by legislation allowing people to make arrangements for medical treatment decisions when they are unable to make their own decisions. Since 1986 the Guardianship and Administration Act has permitted a tribunal to appoint a guardian to make medical treatment decisions for a person with impaired decision-making capacity. A child under the age of 14, a person affected by a brain injury of mental disability, dementia suffers, or a person affected by drugs are not considered to have the capacity to give valid consent.

You should be aware of your rights and the laws of consent when undergoing a medical procedure. Next week, we will elaborate on the four abovementioned points that lead to valid consent.

By Kirollos Greiss, Solicitor at RSG Lawyers.

Footnotes available upon request.

Stress is a “normal psychological and physical reaction”’ to the always increasing demands of life and lawyers work in one of the most arduous job sectors.

We see it imperative for employers to identify needs for appropriate stress management in the work place to ensure good mental health for employees.

In this week’s edition we would like to share some techniques that may help reduce stress at your work place:

Always eat healthy to ensure overall physical and mental well-being.

Plan well and make use of an electronic or manual diary.

Try to avoid unhealthy habits such as smoking.

Keep a water bottle with you at all times and keep well hydrated.

Try to limit your caffeine intake to 1 coffee a day.

Take out time to talk to your colleagues about any matters you feel uncertain about.

Try to exercise 3 days a week.

Use a short portion during work hours for “time out” to empty your thoughts and relax.

Visit a masseuse fortnightly.

Don’t always stay in the office (if possible), try to change up your day, visit clients and eat lunch outdoors.

By RSG Lawyers.

Offers of settlement: Why you should think twice about Calderbank offers.

When you are involved in a dispute, it is more than likely that you will receive a settlement offer. This is where you need to carefully understand the kind of offer it is. Most offers state the words “without prejudice save as to costs” and that the offer is made pursuant to the principles established in Calderbank v Calderbank. This type of offer is known as a ‘Calderbank offer’.

When you receive a Calderbank offer, and you reject it, and if your case is unsuccessful, you may be liable to pay most of the other party’s legal costs.

Usually, the Calderbank offer is made prior to judgement in a dispute, or prior to legal proceedings commencing.

If the one receiving the offer rejects it and the case proceeds to judgement, the offering party may make a claim for or against costs if they can show that given the final result it was unreasonable for the offer to be rejected by the other party. For example, a successful party can claim for their costs to be paid on ‘ordinary’ basis (party/party costs) or ‘indemnity’ basis (includes all reasonably incurred costs).

Conversely, the unsuccessful party can refute payment of any costs if they made a reasonable offer.

It is therefore important to remember that when you receive a Calderbank offer be sure to seek legal advice and understand what the offer may mean for you.

Further, if the offer is reasonable, you should seriously consider whether or not it might be in your best interest to settle.

For any further information listed in this article please contact our office on (03) 9350 4440.

By Oguzhan Sheriff (Partner, RSG Lawyers)

Oguzhan has experience in a range of legal areas. He has mainly practiced in the areas of Conveyancing, Commercial & Corporate, Litigation, Wills & Estates, Family Law and Property Law. Having experience working at a suburban law firm, Oguzhan is well versed in dealing with a vast range of legal issues and clientele.