Ermogenous V Greek Orthodox Community of Sa Inc. [2002] Essay

1. CITATION. Ermogenous v Greek Orthodox Community of SA Inc. [2002] HCA 8; 209 CLR 95; 76 ALJR 465; 187 ALR 92 (7 March 2002) 2. COURT. HIGH COURT OF AUSTRALIA FULL COURT GAUDRON, McHUGH, KIRBY, HAYNE and CALLINAN JJ ERMOGENOUS, Spyridon APPELLANT v GREEK ORTHODOX COMMUNITY OF SA INC RESPONDENT 3. BRIEF STATEMENT OF MATERIAL FACTS. [1] The appellant alleged that he had been employed by the respondent since 18 March 1970 but had not received any entitlements to annual leave or long service leave upon termination of his employment in December 1993. The Magistrate from the Industrial Relations Court of South Australia found in favour of the appellant in the first instance but the Supreme Court of South Australia overturned the Industrial Magistrates ruling at the first appeal. It has been re-appealed to the Full Court of the High Court of Australia. 4. PROCEDURAL HISTORY. South Australia Industrial Relations Court [2] The case was first brought to the South Australia Industrial Relations Court and was heard by the Industrial Magistrate. The Magistrate found in favour of the appellant stating that the appellant had been employed under a contract of employment by the respondent for 23 years. [3] The respondent’s statement that there in fact was no contract of employment was rejected on the grounds that the appellant was recruited from America for the purpose of appointment as Archbishop and the role as head of the Australian autocephalous church. He met with â€Å"members of the committee of management of the South Australian Community† and at such a time an agreement was reached that he â€Å"would be paid similarly to the priest† and would be referred to as one of the â€Å"employees†. [4] Further evidence of the existence of legal relations between the parties was the respondent’s actions. The respondent deducted tax from the appellant’s salary, which was then forwarded to the Australian Tax Office (ATO). The respondent also provided evidence in the form of certificates stating the existence of an employer relationship to  the appellant, who was the employee. Supreme Court of South Australia [5] The decision of the Industrial Court was appealed to the Supreme Court of South Australia whereupon the case was heard by Doyle CJ and Bleby J. It was proposed that the presence of intention to enter into contractual relations should not be presumed, particularly when considering â€Å"remuneration and maintenance and support of a minister of religion†. [6] The Supreme Court reconsidered the Industrial Magistrates ruling that the parties had entered legal relations and had shown intention to do so. [7] His Honour Doyle CJ stated that â€Å"it is important to bear in mind that the [respondent] is not a church, in which the [appellant] held a clerical office†¦ The [respondent] is a body that fosters Greek culture in South Australia in the broadest sense†. He later went on to say â€Å"[i]n considering the inference to be drawn from the discussions in Adelaide, it is also relevant that the [appellant] was not providing services to the [respondent], but to members of the local Greek Orthodox Church†. 5. GROUNDS FOR APPEAL AND/OR ISSUES TO BE DECIDED. [8] Four issues were raised as the grounds for appeal. The first being whether the Full Court of the Supreme Court of South Australia had erred in any way in their decision that the Magistrate of the Industrial Relations Court of South Australia failed in considering if enforceable contractual relations had actually been entered into by the parties. [9] Secondly, relevant upon a negative decision of the first issue, whether the Supreme Court failed to consider the Industrial Magistrate’s reasons for deciding in regards to the issue of intention to create legal relations. [10] The third issue brought to the attention of the court was whether the Industrial Magistrate erred in his reasoning that enforceable contractual relations had been entered into by the parties on the consideration of the spiritual profession of one, or both, of the parties. [11] The final issue raised in the grounds of appeal was whether the Industrial Magistrate was correct in concluding that the parties h ad indeed entered into a contractual relation, being a contract of employment. 6. SUMMARY OF COURT’S ANALYSIS OF LAW. [12] The Court agreed with the Industrial Magistrate’s rejection of the proposition â€Å"that the relationship of a minister of religion to those who  provided for the minister’s necessities of life was, of its nature, incompatible with a contract of employment†. [13] As mentioned in Intention & Privity (2007), â€Å"discerning intention warrants intricate analysis of the facts – intention cannot be presumed purely based on the context or type of the agreement†. Similarly, the court considered the following matters: What was the subject matter of the agreement? What was the status of each party to the formation of the agreement? And, what was the relationship the parties held to each other? [14] The Archbishop was successful in establishing a ‘meeting of the minds’ during the initial talks and negotiations held in Adelaide in 1970 and as a result the Court found in favour of the appellant and that a contract of employment had been en tered into between the parties and further was enforceable by law. 7. PRINCIPLE OF LAW TO BE APPLIED. [15] The principle of law to be applied to the case is ‘intention to create legal relations’ and whether relationships involving the basis of religion would have an effect on the existence of a contractual relationship. [16] Their Honours made note that â€Å"it is said that it may be presumed that there are some â€Å"family arrangements† which are not intended to give rise to legal obligations and it was said in this case that it should not be presumed that there was an intention to create legal relations because it was a matter concerning the engagement of a minister of religion. For our part, we doubt the utility of using the language of presumptions in this context. †¦ Reference to presumptions may serve only to distract attention from that more basic and important proposition.† 8. DESCRIPTION OF HOW LAW APPLIED TO THE FACTS. [17] The character of the employment arrangement is continuously evolving, but in this case, their Honours interpreted the respondent’s actions: the respondent arranged to have income tax deducted from the appellant’s salary as well as issuing to the appellant cheques for travel and a variety of other incurred expenses. It was then reasonable to conclude that both parties had in fact entered into contractual relations of an employment nature which is enforceable at law. 9. DECISION. [18] The case was found in favour of the appellant with the first issue raised being decided in the affirmative, leaving the second issue non-existent as it does not arise. The decision of the third issue was negative. The fourth issue was remitted back to the Supreme Court for decision under the Full Court. 10. ORDER MADE BY THE COURT. [19] The appeal was allowed with costs and the issue of â€Å"[whether] the Industrial Magistrate correctly held that the relationship between the parties was regulated by a contract enforceable at law, it was, as he found, a contract characterised as a contract of employment†. Remit the matter to that Court for further hearing and determination conformably with the reasons of this Court. 11. SOCIAL OR CULTURAL CONTEXT. [20] Maria Keyes and Kylie Burns discussed the social context of the case in Contract and the Family: Whether Intention. They claim that â€Å"intention to create a contractually enforceable agreement is regarded as an immovable aspect of modern contract doctrine†. They continued to discuss the case in length, referring to the joint judgement given in the High Court: â€Å"The joint judgment recognised that the presumptions had been elevated to such an extent that they had become difficult, if not impossible, to rebut. Their Honours believed–correctly, in our view–that the presumptions of fact, which should merely signify where the onus of proof falls, had ossified into strict rules of law†. [21] Rogers CJ stated in Banque Brussels Lambert SA v Australian National Industries Ltd (1989) 21 NSWLR 502 that â€Å"[t]he whole thrust of the law today is to attempt to give proper effect to commercial transactions†¦. If the statements are appropriately promi ssory in character, courts should enforce them when they are uttered in the course of business and there is no clear indication that they are not intended to be legally enforceable†. ——————————————– [ 1 ]. (1997) 64 SAIR 622 at 651. [ 2 ]. (1997) 64 SAIR 622 at 651-652. [ 3 ]. [2000] SASC 329; (2000) 77 SASR 523 at 524-525 [4] per Doyle CJ, 575-576 [207] per Bleby J. [ 4 ]. (2000) 77 SASR 523 at 526 [9] [ 5 ]. (2000) 77 SASR 523 at 528 [17] [ 6 ]. [2002] HCA 8 at 56 [ 7 ]. 2007, Intention & Privity, The Future Role of Presumptions, StudentAtLaw [ 8 ]. (2002) 209 CLR 95 [ 9 ]. [2002] HCA 8 at 80 [ 10 ]. [2002] HCA 8 at 53 [ 11 ]. [2002] HCA 8 at 52 [ 12 ]. Keyes, Maria and Burns, Kylie 2002, Contract And The Family: Whether Intention? [ 13 ]. Keyes, Maria and Burns, Kylie 2002, Contract And The Family: Whether Intention? [ 14 ]. Banque Brussels Lambert SA v Australian National Industries Ltd (1989) 21 NSWLR 502, 523 and Keyes, Maria and Burns, Kylie 2002, Contract And The Family: Whether Intention?

In What Ways Has the United Nations Organisation Influenced the Essay

In What Ways Has the United Nations Organisation Influenced the Conduct of Diplomacy - Essay Example Attitudes toward the UN are based on having governmental and international interference. This affiliation makes it easier for the government to work toward a resolution while national involvement with the conflict becomes secondary (Ernst, 1037: 2008). Actions of the UN The United Nations has not only suggested and become involved with resolving conflict at earlier stages. There are also initiatives that have been propagated and organized by the UN which serve individuals in various countries. An approach which has been taken is multilateralism. This strategy is based on diplomats of several countries working together to provide solutions to foreign affairs. Often, larger states work unilaterally to create a different approach to solving problems. Foreign policies, interference from governments working together and the development of councils in various countries to enhance the security of a nation are some of the outcomes of this approach. The security enhancement and other policies that have been implemented as a result can work to take proactive measures against conflict while ensuring that individuals have the capacity of overcoming challenges now emerging at a global and national level. Peacekeeping operations, government diplomacy, economic recovery, assistance with health programs and climate negotiations are some of the several programs that have developed as a result of this concept (Plenum, 2011). The concept of multilateralism works to overcoming challenges and to move into a higher sense of diplomacy. The UN has the ability to intervene and provide changes with the governance offered with the associations between nations. Intergovernmental organizations are able to work with finding solutions while offering higher security. If... This paper approves that the concept of foreign policy and the soft power of the UN are furthered by the overall sense of political barriers that naturally form within nations. The use of foreign policies and the need to have legalities within a specific nation is one that causes most who are in nations to be forced to take sides. The main view that is seen always has an opposing view, even when there is a common purpose. The conflict then comes from tensions that can’t be resolved by those in the UN or other regions and builds a sense of ideological interests that continue with the conflicts of various nations. This report makes a conclusion that the concept of diplomacy is one that is continuously being altered and re-defined. The United Nations organization has used various measures to change this particular outcome and to influence the way in which diplomacy works. The association with diplomacy is one that is regulated by education, suggestions and the overall ideologies that the UN has created. This is combined with the legal implications that the UN can reinforce and the agendas that are carried out by NGOs and other non – governmental organizations. These are all able to work by changing the influence within the UN. However, there is often the inability to create influence because of foreign policies and the nature of various governments. While the UN is able to spread specific levels of diplomacy through mediation and education, the limitations rely on national governments and the main approaches used to creating a sense of peace resolution and diplomacy within the region.

Reflection paper on the film awakenings with Robin Williams Essay

Reflection paper on the film awakenings with Robin Williams - Essay Example +complete visual field has been offered by Dr. Sayer by painting the floor tiles. Lucy Fishman was one of the victims of the dangerous disease. The key objective of the doctor was to move Lucy from her bed to the window. The double vision symptom of the disease enables victims to create an instantaneous perception of dual images of a solitary object (Young 181). Visual field of the floor tiles has created two visions that helped Lucy to gently stride near the window. Music is pivotal therapy for patients to nullify the outcome of the disease. Encephalitis lethargica disease leaves certain patients motionless and speechless. Music can help victims to create change in the activity of cells to enhance the cellular responsive. Music is the method that helps to increase the cognitive process of an individual. The implementation of music improved the response to stimuli. The role of music for the betterment of the â€Å"frozen† people is undeniable. Emotional patients can be sensitive towards certain types of music. Each â€Å"frozen† people is studied for utilization of music. Different styles of music are played to dissimilar patients to induce. Songs that are from the past are played for the benefit of frozen people. Old music played for the patients helped to recognize the patter of music. This assisted â€Å"frozen† people to be consciously awake. Dr. Sayer stopped using L-dopa drug due to its adverse impact on â€Å"frozen† people. The use of this drug can make patients violent and effectively worsen the situation. Violent patients sometimes attack the doctors. At initial stage the use of drugs benefited patients to nullify the impact of the disease. The ability to perform task provided normally and motor movement of the patients were enhanced by the application of L-Dopa drug. But after regular use of this drugs made frozen people more aggressive and violent. Eventually patients returned in to catatonic and normal state. After epidemic of

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Commercial Law - Essay Example The passing of any risk associated with preservation of the property sold or in the process of being sold is governed by Section 20(1) of the Sale of Goods Act 1979 which provides as follows:- â€Å"Unless otherwise agreed, the goods remain at the sellers risk until the property in them is transferred to the buyer, but when the property in them is transferred to the buyer the goods are at the buyers risk whether delivery has been made or not.†3 The purchase of the six speed drill appears to have vested in Alex prior to dispatch by the seller since he paid for the drill via credit card over the telephone. According to Section 20(1) of the Sale of Goods Act, 1979 the property was transferred to Alex and while in transit remains at his risk. However, the drill did not conform to specifications since it was a three speed drill rather than the specified six speed drill. As a result, Alex as buyer has a right to reject non-conforming goods. The law presumes that the parties intend that the goods will fit the description as provided for in the sale of goods’ contract. If at the time of shipment the goods do not comport with the contract description: â€Å"†¦if there was a quantitative defect in the goods amounting to a breach of a fundamental term or to a breach of condition, or to a breach of an intermediate term which cause him serious prejudice.†5 A buyer is therefore at liberty to reject goods for the most part if they fail to correspond with the description of the goods sold via the contract for sale. This is possible even when the buyer does not incur any damages or loss as a result of the non-conforming goods.6 However the courts have taken pains to limit the application of this rule by effectively narrowing the ‘concept of the description of the goods.’7 It was held in Christopher Hill Ltd. v Ashington Piggeries Ltd [1972] AC 441that a statement contained in a contract may

Law victims and criminal justice Essay Example | Topics and Well Written Essays - 2500 words

Law victims and criminal justice - Essay Example Although the courts serve as decentralised, semi-autonomous groupings of legal professionals, but that does not mean that victim support groups give up in confronting difficulties in predicting how they will follow a new law (Candace, 1993, p. 2). Victim support is criticised for it wishes to monopolise its' services provided to the nation. It is also said that this department is unable to tackle the problems of all of its victims (Duckett, 2003, p. 248). No doubt victim's expectations from the support departments and trial proceedings is to acquire justice while prosecuting and punishing offenders, but that does not mean that victim's sufferings should not be analysed in material form. Victims support organisations (VSO), groups and legal proceedings instead of claiming complete restitution for victim often seek justice alone. VSO does not consider reconciliation and mediation programs as alternatives to criminal punishment; therefore offenders' financial accounts are left untouched. VSOs does not support victim compensation programs, therefore victims who are ineligible for restitution through no fault of their own could be reimbursed at the same level, with their reimbursements paid from a pool of frees or restitution overages. VSOs go through the following processes while fighting for its' victim's justice. Methodological Issues: VSOs seeks evidence, including that from recorded crime, crime surveys, records of convicted offenders, accounts of emotional responses to crime, etc., on a socially constructed basis. Therefore what VSOs concentrate is the data on crime that reflects the way crime has been assembled and taken place. There is no concern about the improperly collected information that reveals the crime scene. However, the VSO team is criticized for working in the following way: Crime Scene Investigation: The VSO is quite popular in taking decisions whether or not to investigate the location of the criminal offense. In some 'incidents' VSOs are right in predicting that a crime has indeed been committed and it is a 'crime scene'. However, in many situations it is observed that VSOs fail to predict the seriousness of the crime and does not consider that one of the initial and primary tasks of the crime scene investigator is to determine whether or not a crime has been committed. In this context the blame must not be put on to VSOs alone as in many European countries including UK, National training centers only conduct short courses for creating Victim support officers and team. Resources, instead of basing on the complexity and seriousness of the alleged incident are dependant on their officers' decision. Crime scene is not analysed on the basis of its full potential. This is true as in many cases it is seen that the police, the field scientist, the laboratory scientist and the prosecutor instead of joining together to produce a set of facts that make it unreasonable to believe any conclusion other than the one the facts support, are giving individual facts. Therefore, the facts taken individually are not exposed to reasonable doubts, helpful in solving the crime.

International Marketing and Real Estate Research Paper

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Insider threat and Physical vulnerability Research Paper

Insider threat and Physical vulnerability - Research Paper Example Physical security of the database The growing technological advancements are posing a threat to the new requirements of the iTrust database. Cloud storage, a method of data storage that allows users to share information online is one of the basis on which the iTrust database is prone to attackers. Cloud computing can be misused to attack the database through dishonest activities. Cloud computing at the database, just like in other systems, deal with privacy and have a rather easy registration system. Although the easy registration system gets geared to make the software user friendly, criminals usually use advanced technologies to access the software. This poses the highest threat to businesses and consumers that use the system (Shaw et al, 2013). There have been cases of use of Botnets to attack a public cloud network and spread viruses. The Zeus Botnet has on several occasions attacked the Amazon cloud. The Zeus Botnet attacked Amazon’s EC2 cloud computing service managing t o install a virus. The Botnet further took control of a cloud platform. The malware remained hidden for a long time while transferring millions of dollars (Shaw et al, 2013).Two ways have been proposed to deal with such malware. The security threat posed by the malware can be addressed through implementing cloud analytics. The threat can also be addressed through employing more personnel to monitor the database. Another threat that comes with cloud computing is the difficulty with which consumers get to understand the security implications associated with usage of software like itrust database. Whereas most consumers would prefer a relatively easy set of application programming interfaces, this seems to deter efforts to safeguard the database from any threats. Ensuring that the database gets adequately safeguarded may call for complex application programming interfaces. Such interfaces are able to detect any unpermitted intrusion into the system and swiftly counter-attack the attemp t (Shaw et al, 2013) The issue of account service and traffic hijacking remains a legitimate threat to most of the iTrust users. Traffic hijacking has a wide range. It may involve spamming or use of stolen user credentials. Considering the sensitivity of the data stored in the iTrust database, hackers can in many ways put to risk the lives of the users. This can be done by just gaining a simple entrance. In a situation where the attack occurs on the urgent care, the attacker can manage to follow up on transactions, edit data stored on the database as well as steal users’ personal information .To curb this, preventive measures must be taken. Such preventive measures may include effecting password policies, use of tracking software and providing internet usage education to all employees (Researchomatic, 2012). The insider threat Insider threat can be defined as any threat that comes from people within the organization and who have the organization’s inside information re garding how the organization stores its information. The insider threat faced at the iTrust database is quite challenging. A lack of separation of duties seems to pose the greatest insider threat at the moment. Separation of duties ensures that an insider with too much power or authority is not able to attack the database using the power or authority that they have (SafeNet, 2013). Example of an incident of an insider threat is when a head of department