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March 2010 - Newsletter


High Court Decision in Favour of Farmer
(Kirk Case)
The High Court application arose because of the successful prosecution of a farmer, Mr Graeme Kirk by the NSW Industrial Relations Commission for a fatal accident that happened on his Picton farm in 2001.
Mr Kirks farm manager, and friend, Graham Palmer was killed when the quad bike he was driving rolled on top of him when he drove it down a steep hill instead of driving down a well formed road.
Following the fatality, the WorkCover Authority of NSW commenced an investigation. As a result of that investigation, a prosecution was commenced just under two years after the accident. WorkCover alleged that both the employing entity of Mr Palmer and through its culpability, its Director Mr Kirk had failed to take reasonably practicable steps to ensure the health and safety of Mr Palmer.
Both the employing entity and Mr Kirk were found guilty of breaching their obligations under the OH & S Act. They were fined $121,000 for the entity and $80,000 for Mr Kirk.
Mr Kirk applied to have the case heard under appeal to the NSW Supreme Court but they would not hear it and referred him back to the NSW IRC. He eventually was successful in having his case brought before the High Court at substantial cost to him and his wife (in the vicinity of $1.3 million).
Outcome of the High Court Decision
The Full Court of the High Court unanimously quashed the NSW IRC’s decision. In its decision the High Court stated that Work Cover failed to identify what Mr Kirk and his company could have done to prevent the accident, denying them the opportunity to properly put a defence. Instead, they were required to show why it was not reasonably practicable to eliminate all possible risks associated with the use of the vehicle, which made it virtually impossible for Mr Kirk to formulate a defence to the charge.
An order for costs was made against Work Cover for Mr Kirk and the company’s costs in the Court of Appeal and the High Court.
Judgement of Justice Heydon
While agreeing with the majority decision, Justice Heydon went further in his criticism of the prosecution saying it was time for it to “finish its sport with Mr Kirk”. He further commented:
“It is absurd to have prosecuted the owner of a farm and its principal on the ground that the principal had failed to properly ensure the health, safety and welfare of his manager, who was a man of optimum skill and experience – skill and experience much greater than his own – and a man whose conduct in driving straight down the hill instead of on a formed and safe road was inexplicably reckless”.
This decision has important implications for the way in which prosecutions are commenced. Regulators commencing proceedings against employers for a breach of OH & S laws will now be required to specify not only the risk which gave rise to the incident but also what reasonably practicable measures and employer should have taken to prevent an accident or injury.
Mr Kirk stated “I was elated with the decision, and I was elated that common sense… and it really restored my faith because I’d virtually lost faith in our judicial system. It certainly restored my faith in justice, and justice will be done, and fair play, just a sense of fair play has been restored … So it’s a very hard decision for anybody at my level to take. If I had my time over again, I don’t know if I would have done it, but once I was involved in it I just had to keep going with it because I just couldn’t understand why common sense had not prevailed”.
Editor: This at times, is something that most of us cannot understand.
Sophisticated ‘phishing’ scam promises tax refunds
The assistant Treasurer has warned Australians of a new email phishing* scam using the lure of a tax refund to try and steal private information.
Note(*) Phishing: To request confidential information over the internet under false pretences to fraudulently obtain credit card numbers, passwords, or other personal data.
 “This particular scam is quite sophisticated and uses convincing fakes of what could easily be mistaken for Australian Tax Office web pages,” He said.
“The email claims to be from the ATO and shows a fake Tax Office email address as the sender."
The email uses the Tax Office logo and includes the words 'Tax refund' in the subject heading.
The email asks people to enter their email, name and date of birth to search for any refund owing, which then directs them to a bogus Tax Office website and asks for personal and credit card details.
"Anyone who has already entered their credit card information into the bogus site should immediately report it to their credit card provider."

“Where there’s a Will there’s a Way”
If your Will is over three years old it’s probably out of date in minor or major ways.
·         40% of people die with no Will at all. The courts have to then divide your assets to your next of kin.
·         30% die with out of date, inappropriate Wills. Here the executers have to divide the farm and assets in a way that is no longer fair.
·         30% die with reasonable Wills ensuring protection of the surviving spouse and a reasonable division between children who have framed their lives around agreed expectations.
The Will should be the last part of a “Succession Plan” where two or three generations work together to protect the current family members and family accumulated wealth. The challenge is to then increase the nest egg to give options to your grandchildren. Very little in life is achieved without well thought out plans!
Please ring one of the Partners and make an appointment to do a Succession Plan and bring your Wills up to date.
Rental properties – travel expenses
Editor: The following is about claims by taxpayers with rental properties and demonstrates how we can help you with those claims.
What travel expenses can taxpayers with a rental property claim?
Taxpayers can claim:
·         preparing the property for new tenants (except for the first tenants);
·         inspecting the property during or at the conclusion of tenancy;
·         undertaking repairs, where those repairs are a consequence of the damage or wear and tear incurred while being rented out;
·         maintenance of the property, such as cleaning and gardening, while it is rented or available for rent;
·         collecting the rent; and
·         visiting their agent to discuss their rental property.
Domestic travel requiring an overnight stay
A rental property may be located so far from where a taxpayer lives that it would be unreasonable to expect them not to stay near the property overnight when making an inspection.
If this is the sole reason for the trip, they are entitled to claim a deduction for travel expenses incurred in travelling to the rental property.
Where an overnight stay is involved, they would be entitled to claim for meals and accommodation.


Please Note: Many of the comments in this publication are general in nature and anyone intending to apply the information to practical circumstances should seek professional advice to independently verify their interpretation and the information’s applicability to their particular circumstances.


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