David Miranda/ Ed Snowden / Corrupt Obama
It appears that it is not only the Australian Federal Police  that are clueless and try and protect corruption in Government Departments.  Here is an example of the UK Police  also doing the same to intimidate David Miranda and Ed Snowden.
It is time the UK Police stopped pulling their cocks and spreading propaganda!!!!!
The UK Police should charge David Miranda if they think they have so much evidence and then David can defend himself  because even if the police continue to intimidate him any reasonable person would be aware that these are not the only set of documents on USB in the world.
Clearly this could all backfire on the UK Police because it is too easy to spread shit but not so easy to produce strong  evidence  in a court of Law  that will be scrutinised and could expose corruption that Obama is trying to suppress.
It looks like   Obama and The Uk Prime Minister are again pulling each others cocks  judging from the following.....................
 Govt says it needs to share data with “foreign third parties” but refuses to say whom. (I think we can assume they’re talking about the CIA)
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Glenn Greenwald’s partner, David Miranda, was carrying a stunning amount of government documents when he was
detained by British authorities for nine hours earlier this month.
And a U.K. national security adviser said Friday that some of those 58,000 documents were extremely sensitive to national security.
The Daily Telegraph’s David Barrett tweeted out some of the details from the statement made Friday by Oliver Robbins, deputy national security adviser for intelligence, before U.K. judges.
Robbins was making the case that national security teams and police needed to investigate the material, which they seized earlier this month. The court extended an order Friday that will allow officials to continue to inspect the material seized for national security purposes.
Some of the key points of the statement, which intelligence analyst Joshua Foust called “extraordinary”:

• Robbins said that the case material included 58,000 documents that were “highly classified UK intelligence documents.”
• Among the documents was a piece of paper with the decryption password.
• Police decrypted one file on Miranda’s hard drive with the password.
• The material contains “personal information that would allow British intelligence staff to be identified,” including overseas.
• Because of the size and scope of the material gathered, the British government believes that Edward Snowden “indiscriminately appropriated material in bulk.”
• In what could be a particularly troubling development, the UK government has “had” to assume that Snowden’s data is in the hands of foreign governments to which he has traveled: Hong Kong and Russia. (Greenwald told Business Insider last week that it was “highly unlikely” that had happened, however.)
• Robbins argued that it is “impossible” for Greenwald or any other journalist to determine which information could damage national security.

“The material seized is highly likely to describe techniques which have been crucial in life-saving counter-terrorist operations, and other intelligence activities vital to UK national security,” Robbins said.
“The compromise of these methods would do serious damage to UK national security and ultimately risk lives.”
The government told The Guardian newspaper that it had “no confidence in their ability to keep the material safe,” and that the government “appeared to accept our assessment that their continued possession of the information was untenable.”
Miranda, 28, was detained for nine hours at London’s Heathrow Airport earlier this month under a U.K. anti-terror law, while travelling home to Brazil. He had spent a week in Berlin visiting journalist Laura Poitras, who has been working with Greenwald to publish stories based on leaked information from former NSA contractor Edward Snowden.
Miranda is taking legal action against the government. He has argued arguing that his detention was a misuse of Schedule 7 of the U.K. anti-terror law and breached his human rights.
Miranda’s trip, which was paid for by The Guardian, had the purpose of him being a courier between Greenwald and Poitras. Using encrypted thumb drives, he delivered documents to Poitras, and he came back with documents meant for Greenwald.
In a statement after Friday’s court hearing, Guardian editor-in-chief Alan Rusbridger said that Robbins had made a “number of unsubstantiated and inaccurate claims” in his statement:
“This five week period in which nothing has happened tells a different story from the alarmist claims made by the government in their witness statement,” Rusbridger said.
“The Guardian took every decision on what to publish very slowly and very carefully and when we met with government officials in July they acknowledged that we had displayed a responsible attitude. The government’s behaviour does not match their rhetoric in trying to justify and exploit this dismaying blurring of terrorism and journalism.”
Greenwald blasted Miranda’s detention at the time, comparing it to mafia-style methods:

This is obviously a rather profound escalation of their attacks on the news-gathering process and journalism. It’s bad enough to prosecute and imprison sources. It’s worse still to imprison journalists who report the truth. But to start detaining the family members and loved ones of journalists is simply despotic. Even the Mafia had ethical rules against targeting the family members of people they felt threatened by. But the UK puppets and their owners in the US national security state obviously are unconstrained by even those minimal scruples.

ress


Glenn Greenwald’s partner, David Miranda, was carrying a stunning amount of government documents when he was
detained by British authorities for nine hours earlier this month.
And a U.K. national security adviser said Friday that some of those 58,000 documents were extremely sensitive to national security.
The Daily Telegraph’s David Barrett tweeted out some of the details from the statement made Friday by Oliver Robbins, deputy national security adviser for intelligence, before U.K. judges.
Robbins was making the case that national security teams and police needed to investigate the material, which they seized earlier this month. The court extended an order Friday that will allow officials to continue to inspect the material seized for national security purposes.
Some of the key points of the statement, which intelligence analyst Joshua Foust called “extraordinary”:

• Robbins said that the case material included 58,000 documents that were “highly classified UK intelligence documents.”
• Among the documents was a piece of paper with the decryption password.
• Police decrypted one file on Miranda’s hard drive with the password.
• The material contains “personal information that would allow British intelligence staff to be identified,” including overseas.
• Because of the size and scope of the material gathered, the British government believes that Edward Snowden “indiscriminately appropriated material in bulk.”
• In what could be a particularly troubling development, the UK government has “had” to assume that Snowden’s data is in the hands of foreign governments to which he has traveled: Hong Kong and Russia. (Greenwald told Business Insider last week that it was “highly unlikely” that had happened, however.)
• Robbins argued that it is “impossible” for Greenwald or any other journalist to determine which information could damage national security.

“The material seized is highly likely to describe techniques which have been crucial in life-saving counter-terrorist operations, and other intelligence activities vital to UK national security,” Robbins said.
“The compromise of these methods would do serious damage to UK national security and ultimately risk lives.”
The government told The Guardian newspaper that it had “no confidence in their ability to keep the material safe,” and that the government “appeared to accept our assessment that their continued possession of the information was untenable.”
Miranda, 28, was detained for nine hours at London’s Heathrow Airport earlier this month under a U.K. anti-terror law, while travelling home to Brazil. He had spent a week in Berlin visiting journalist Laura Poitras, who has been working with Greenwald to publish stories based on leaked information from former NSA contractor Edward Snowden.
Miranda is taking legal action against the government. He has argued arguing that his detention was a misuse of Schedule 7 of the U.K. anti-terror law and breached his human rights.
Miranda’s trip, which was paid for by The Guardian, had the purpose of him being a courier between Greenwald and Poitras. Using encrypted thumb drives, he delivered documents to Poitras, and he came back with documents meant for Greenwald.
In a statement after Friday’s court hearing, Guardian editor-in-chief Alan Rusbridger said that Robbins had made a “number of unsubstantiated and inaccurate claims” in his statement:
“This five week period in which nothing has happened tells a different story from the alarmist claims made by the government in their witness statement,” Rusbridger said.
“The Guardian took every decision on what to publish very slowly and very carefully and when we met with government officials in July they acknowledged that we had displayed a responsible attitude. The government’s behaviour does not match their rhetoric in trying to justify and exploit this dismaying blurring of terrorism and journalism.”
Greenwald blasted Miranda’s detention at the time, comparing it to mafia-style methods:

This is obviously a rather profound escalation of their attacks on the news-gathering process and journalism. It’s bad enough to prosecute and imprison sources. It’s worse still to imprison journalists who report the truth. But to start detaining the family members and loved ones of journalists is simply despotic. Even the Mafia had ethical rules against targeting the family members of people they felt threatened by. But the UK puppets and their owners in the US national security state obviously are unconstrained by even those minimal scruples.

.The Law Society of New South Wales v Samaan [2013] NSWSC 1144

Supreme Court New South Wales

Medium Neutral Citation

The Law Society of New South Wales v Samaan [2013] NSWSC 1144

Hearing Dates

16 August 2013

Decision Date

16/08/2013

Before

Adamson J

Decision

(1) An order pursuant to s 630(2) of the Legal Profession Act 2004 appointing John Ernest Mitchell receiver for the law practice known as Samaan & Associates Lawyers (the Law Practice) situated at Suite 3, Level 6, 402-410 Chapel Road Bankstown NSW 2200.

(2) An order that the receiver, within one month of appointment and from time to time afterwards, furnish to the plaintiff as it requires, reports of the receivership and that no further or other reports need be furnished by the receiver.

(3) Subject to the plaintiff giving an undertaking as to damages, an order that all transactions involving the receipt or disposal of trust moneys of clients of the Law Practice be effected and transacted through the law practice bank accounts of which John Ernest Mitchell has been appointed receiver.

(4) An order that the defendant and his servants or agents are restrained from:

(a) removing, or causing or permitting to be removed from the State of New South Wales; and

(b) selling, charging, mortgaging or otherwise dealing with or disposing of; and

(c) causing or permitting to be sold, charged, mortgaged or otherwise dealt with or disposed of,

any of his assets within the State of New South Wales provided that this order shall not prevent the defendant from paying his ordinary living expenses up to the sum of $1000.00 per week.

(5) An order that the defendant within 14 days of being served with a copy of this order, deliver or cause to be delivered to the plaintiff an affidavit sworn or affirmed by him setting out:

(a) The name and address of every bank, building society or other financial institution at which there is an account in any name that the defendant is entitled to operate in any capacity, (the Account), together with all the particulars of the Account known to the defendant, including the name, number and balance of the Account at the date of service of a copy of this order upon him;

(b) The name and address of any person or entity indebted to the Law Practice and/or the defendant at the date of service of a copy of this order upon it and/or him and the amount of the debt owed by that person or entity;

(c) An itemised inventory of all business assets owned by the Law Practice and/or the defendant;

(d) An itemised inventory of any other property, whether real or personal, owned by the Law Practice and/or the defendant or in respect of which the Law Practice and/or the defendant has an interest; and

(e) In respect of any of the property referred to above, whether it has been given as security for any debt, and if so, the nature of the security and the debt secured.

(6) An order that the defendant pay to the plaintiff a sum equal to the legal costs and expenses that may be incurred by the receiver in relation to the receivership.

(7) An order that the defendant pay to the plaintiff a sum equal to any fees paid by it to the receiver by way of remuneration.

(8) An order that the defendant pay the costs of this summons.

Catchwords

LEGAL PRACTITIONERS- application to appoint receiver to legal practice

Legislation Cited

- Legal Profession Act 2004, s 630(2)

Category

Interlocutory applications

Parties

The Law Society of New South Wales (Plaintiff)
Rabie Samaan (Defendant)

Representation

Solicitors:
The Law Society of New South Wales (Plaintiff)

Counsel: CM Groenewegen (solicitor)(Plaintiff)
No appearance for the Defendant

File Number(s)

2013/247309

Publication Restriction

Nil

Judgment

Introduction

1By summons filed on 14 August 2013 the Law Society of New South Wales seeks orders against Rabie Samaan including an order pursuant to s 630(2) of the Legal Profession Act 2004 (the Act) to appoint John Ernest Mitchell as a receiver for the law practice known as Samaan & Associates Lawyers situated in Bankstown.

2Ms Groenewegen, who appears on behalf of the plaintiff, has filed in support of the summons two affidavits; an affidavit of Ann Marie Ford of 13 August 2013, which was filed with the summons on 14 August 2013, and an affidavit of Cora Groenewegen of 16 August 2013 which was filed in Court today.

Defendant's knowledge of the plaintiff's application for a receiver

3In the latter affidavit the deponent deposed to the attempts that she has made to notify the defendant of these proceedings. I note that the defendant was notified by email on Wednesday 7 August 2013 and the deponent telephoned the defendant on 14 August 2013. Later in that day she emailed the defendant attaching a PDF copy of the sealed summons. Later on that same day she sent a letter to the defendant by express post informing him of the proceedings and the intention of the plaintiff to appear before the duty judge on Friday 16 August 2013 to have a receiver appointed to the practice.

4On Thursday 15 August 2013 the defendant telephoned Ms Groenewegen and said he had received the emails and the PDF of the summons and that he understood the affidavit was too big to send. Ms Groenewegen explained that she had sent it by express post the previous day and that it should arrive that day, being 15 August 2013. She asked the defendant to contact her once he received the affidavit to indicate to her what he proposed to do tomorrow, namely Friday 16 August 2013. Notwithstanding this discussion Ms Groenewegen received no response either by telephone or email from the defendant. This morning at 8.15am she telephoned him and left a message and sent an email to him at 8.55am asking him whether or not he would be attending court today for the hearing of the matter. No response was received to that email or to that phone call.

5I asked the court officer to call the defendant's name outside court before the matter was heard at 10.30am in this Court today and there was no response.

6In all the circumstances I am satisfied that the defendant has been notified of the hearing today and has chosen not to appear. I note, however, that in any event I could make the order even had the summons not been served.

The application for the appointment of a receiver and associated orders

7I turn now to the affidavit of Ann Marie Ford of 13 August 2013, in which she deposed to the background to the application and the grounds on which the application is made. It came to the attention of the Council of the Law Society (the Council) that there were irregularities in the practice conducted by the defendant in that he had misappropriated moneys which were paid to him on trust and also that he had failed to renew his practising certificate and has therefore ceased to be an Australian legal practitioner. At its meeting on 5 August 2013, the Council resolved that a manager be appointed to the defendant's practice and that an application be made to this Court for the appointment of a receiver.

8The material in support of the submission that the defendant has misappropriated trust funds is very strong, in that there is an admission, signed by the defendant on 30 July 2013 confirming that he has misappropriated a sum of $25,196 which was paid to him in cash by a client, Ms Gordana Sirijovska, to pay various accounts relating to the transcript costs, barrister fees and expert fees. Rather than applying the funds for the purposes for which it was paid, the defendant admitted that he misappropriated them for his own purposes.

9In these circumstances, and in light of the admission made by the defendant, I consider it to be appropriate to make an order appointing Mr Mitchell to be a receiver for the law practice pursuant to s 630(2) of the Act.

10The minute of order which has been provided to me by Ms Groenewegen contains other orders, including that the receiver within one month of appointment furnishes the plaintiff reports of the receivership, and also an order that all transactions involving the receipt or disposal of trust moneys of clients of the defendant's law practice be effected and transacted through the law practice's bank account of which Mr Mitchell has been appointed as receiver.

11The plaintiff also seeks an order restraining the defendant from dealing with his assets or removing them from New South Wales subject to his entitlement to pay his ordinary living expenses up to the sum of $1000 per week.

12In all of the circumstances of this case, and on the basis that the plaintiff has given an undertaking as to damages, I am persuaded that it is appropriate to grant this restraining order.

13There are other orders in the minute of order which are also consequential and require the defendant to inform the plaintiff of various matters, including the name and address of every bank, building society or other financial institution at which there is an account in any name that the defendant is entitled to operate. The purpose of these orders is to facilitate the tracing of the misappropriated trust funds into the defendant's property.

14I am satisfied in all the circumstances that, having regard to the evidence referred to above and the plaintiff's undertaking as to damages, it is appropriate to make each of the orders set out in the short minute of order handed up by the Law Society.

Orders

15I make the following orders:

(1)An order pursuant to s 630(2) of the Legal Profession Act 2004 appointing John Ernest Mitchell receiver for the law practice known as Samaan & Associates Lawyers (the Law Practice) situated at Suite 3, Level 6, 402-410 Chapel Road Bankstown NSW 2200.

(2)An order that the receiver, within one month of appointment and from time to time afterwards, furnish to the plaintiff as it requires, reports of the receivership and that no further or other reports need be furnished by the receiver.

(3)Subject to the plaintiff giving an undertaking as to damages, an order that all transactions involving the receipt or disposal of trust moneys of clients of the Law Practice be effected and transacted through the law practice bank accounts of which John Ernest Mitchell has been appointed receiver.

(4)An order that the defendant and his servants or agents are restrained from:

(a)removing, or causing or permitting to be removed from the State of New South Wales; and

(b)selling, charging, mortgaging or otherwise dealing with or disposing of; and

(c)causing or permitting to be sold, charged, mortgaged or otherwise dealt with or disposed of,

any of his assets within the State of New South Wales provided that this order shall not prevent the defendant from paying his ordinary living expenses up to the sum of $1000.00 per week.

(5)An order that the defendant within 14 days of being served with a copy of this order, deliver or cause to be delivered to the plaintiff an affidavit sworn or affirmed by him setting out:

(a)The name and address of every bank, building society or other financial institution at which there is an account in any name that the defendant is entitled to operate in any capacity, (the Account), together with all the particulars of the Account known to the defendant, including the name, number and balance of the Account at the date of service of a copy of this order upon him;

(b)The name and address of any person or entity indebted to the Law Practice and/or the defendant at the date of service of a copy of this order upon it and/or him and the amount of the debt owed by that person or entity;

(c)An itemised inventory of all business assets owned by the Law Practice and/or the defendant;

(d)An itemised inventory of any other property, whether real or personal, owned by the Law Practice and/or the defendant or in respect of which the Law Practice and/or the defendant has an interest; and

(e)In respect of any of the property referred to above, whether it has been given as security for any debt, and if so, the nature of the security and the debt secured.

(6)An order that the defendant pay to the plaintiff a sum equal to the legal costs and expenses that may be incurred by the receiver in relation to the receivership.

(7)An order that the defendant pay to the plaintiff a sum equal to any fees paid by it to the receiver by way of remuneration.

(8)An order that the defendant pay the costs of this summons.

**********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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Last updated 20 August 2013

Veronique Ingram Corrupt Inspector General at AFSA

Veronique Ingram has held various Government roles over a period of years.
Presently she is Inspector General in Bankruptcy. Previously this skank was General Manager Finance Systems Division where she provided advice to the treasurer.
At Present Veronique Ingram and senior Management at AFSA are protecting fraud in the Bankruptcy system.
Although this practice has been referred to the Commonwealth Ombudsman, senior Management at the Ombudsman has made a decision to protect this practice.
This skank was then referred to the Australian Public Service Commissioner, Steven Sedgewick who also fucked the complaint over and made decision to protect her.

Clearly the practice of protecting serious fraud in the Bankruptcy System cannot be taken lightly.
As Veronique Ingram has also worked in other Financial areas how much fraud did the Skanky Bitch protect in the treasury Department?

It gets even more amusing when 7 Australian Federal Police appeared at my door early one morning with a search warrant.
This had been instigated by the Corrupt Enforcement Manager Adam Toma to attempt to intimidate me to take down my bloggs.
5 days latter the AFP came to my work and threatened to handcuff me and throw me in the police cells if I did not stop exposing corruption at AFSA.

Then a month latter I was issued with a warrant to appear in Court. After this appearance in Court I was asked by the AFP what did I really want????
Obviously the AFP are so clueless!!!!!!!!!!!!!!!!!

Chief Executive and Inspector-General

Veronique Ingram was appointed as the Inspector-General in Bankruptcy and Chief Executive in February 2009. Prior to that Ms Ingram was General Manager, Finance System Division, in the Commonwealth’s Treasury Department where she had responsibility for providing advice to the Treasurer about regulatory policy issues relating to banking, insurance and superannuation and the Australian financial system.

For three years from January 2005 Ms Ingram was the Australian Ambassador and Permanent Representative to the Organisation for Economic Co-operation and Development (OECD) in Paris.

Ms Ingram also held the position of Chief Adviser, International in the Treasury with responsibility for advising the government on international economic developments and policy issues as well as Australia’s participation in the International Monetary Fund, World Bank, Asian Development Bank, OECD, Asia–Pacific Economic Cooperation (APEC) and G20 meeting of finance ministers.

 Lateline/ Aged Care / Commonwealth Ombudsman

Complaints on aged care sent to the Commonwealth Ombudsman are fucked over . 80% of complaints of these complaints are disregarded the remainder are never handled correctly. Section 15 of the Act requires that systemic problems be brought to the attention of the Minister though this is never done.

The fat ugly  Alison Larkins,  who was acting as Commonwealth Ombudsman was referred to the Australian Public Service Commission for failing to uphold her responsibility under the Ombudsmans Act.

Steven Sedgwick the Australian Public Service Commission   fucked over the complaint under S41. This clearly shows that the Commonwealth Ombudsman is protecting  corrupt and corrupt conduct in Government Agencies and the Australian Public Service Commission is protecting the failure of the Commonwealth Ombudsman  to  carry out its required duty under Ombudsmans Act.

I also wish to mention that Lateline reported that anyone who tried to expose this tragedy into Australia's most vulnerable in a "wikileaks" was risking a TWO YEARS Imprisonment.

It would be similar to the situation I find myself in where , by exposing a corrupt Senior Management at ITSA or now AFSA Adam Toma the corrupt Enforcement Manager  is attempting to have me also jailed.

Adam Toma can  now come kiss my Arse   because his obvious intimidation will clearly not work on me and now he finds himself in a situation where he must appear in court and defend  the systemic corrupt conduct at  AFSA.

Clearly also anyone else at AFSA  who wants to complain about me exposing them  will also have to give evidence in court on  why the protection of FRAUD  is acceptable in this Government Agency

 

Aged Care Accreditation In the Spotlight

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Australian Broadcasting Corporation

Broadcast: 23/08/2013

Reporter: Margot O'Neill

Tonight a former senior victorian public servant whose mother died recently in a nursing home speaks out against a system he says is failing Australia's most vulnerable elderly. And lawyers believe families might be able to sue the Commonwealth for not safeguarding adequate standards of care in nursing homes and some families are pushing for a class action.

Transcript

EMMA ALBERICI, PRESENTER: Tonight a former senior Victorian public servant whose mother died recently in a nursing home speaks out against a system he says is failing Australia's most vulnerable elderly.

Lawyers believe families might be able to sue the Commonwealth for not safeguarding adequate standards of care in nursing homes.

Some families are pushing for a class action.

Margot O'Neil reports, and a warning this report contains disturbing images.

MARGOT O'NEILL, REPORTER: At this nursing home in northern Australia a tick-infested dog wanders through a dilapidated building and yet Star of The Sea nursing home on Thursday Island was fully accredited by the Federal Government last year. That decision has since been modified and new management has been given until next month to repair its buildings.

Local Federal MP Warren Entsch is outraged the facility can't get more federal money.

WARREN ENTSCH, FEDERAL MP: Somehow or other they were quite happy to tick it off last year and say righto we're going to give you three years of accreditation at a time when there was still these problems.

MARGOT O'NEILL: The Federal Aged Care Standards and Accreditation Agency safeguards care in nursing home through a checklist of 44 standards.

They include providing "appropriately skilled and qualified staff" and "appropriate clinical care."

Australia has a near perfect score of 95 per cent of homes gaining full 44 out of 44 accreditation for three years. Adrian Nye's mother was in a Victorian nursing home that was given full accreditation at the same time she developed such serious leg infections, she spent four months in hospital.

ADRIAN NYE, FORMER CHAIRMAN, VIC MANAGED INSURANCE AUTHORITY: In my mother's case its quite bizarre because while my mother was in a bed at that facility the accreditation authority was in their doing its annual or triennial accreditation review. And no blemish was identified in the course of the review.

MARGOT O'NEILL: Adrian Nye, a former senior Victorian public servant, complained about the poor wound management for his mother. The accreditation team was sent back in and the home had to revamp its procedures.

A former chairman of the Victorian insurance scheme including medical indemnity, he believes the two-day accreditation visits was inadequate. He's calculated the accreditors would have needed more than twice as long to do a thorough job.

ADRIAN NYE: Now it's just incredible, either they did things so superficially that nothing could be identified, which is probably my suggestion, or they failed to do some of the things they said they've done.

MARGOT O'NEILL: Critics say accreditation is too much about paper work and box ticking of processes rather than actual clinical outcomes.

There are numerous examples of homes that have been fully accredited only to be involved in media scandals shortly after. Like the home that had no staff at all rostered on overnight, or the fully accredited home that had a mouse infestation.

Staff in contact with Lateline say homes spend weeks preparing for accreditation and allege that some homes deceive accreditors.

An aged care consultant told us "some nursing homes bring in "a quality co-coordinator whose sole job was to present files full of evidence of quality care and fulfilment of standards. Where evidence could not be found it was simply manufactured."

A carer told us "most employers train staff to respond to accreditation agency visits. I have been interviewed several times and often your supervisor is present. I have been in difficult situations where if I told the truth I would be sacked."

The accreditation agency also does unannounced annual spot checks but the results are not public.

For many families and staff the only recourse when things do go wrong is the aged care complaints scheme run by the Department of Health.

ADRIAN NYE: The majority of my life has either been working in the bureaucracy, drafting schemes of this complaint sort or acting as a consultant critiquing their success.

MARGOT O'NEILL: His verdict on the complaints scheme?

ADRIAN NYE: Oh it's a very sick puppy. It's actually a complaints scheme without any investigatory curiosity or power, it's very much a social work model where wanting to hold hands and reconcile and conciliate. But for something as grave as an allegation of gross negligence leading to a wound that puts your mother in an acute hospital for four months with severe pain effects and a risk to life, something more than Kumbaya is required.

MARGOT O'NEILL: The nursing home promised to do better so the matter is now considered closed. But Adrian Nye is left wondering how did the wound start, was it because of poor care, the complaints scheme says it couldn't decide.

ADRIAN NYE: The response to that was, oh we're getting different stories, they say its sunburn, your plastic surgeon says it pressure it's all a bit difficult, the record's are a bit funny, we can't conclude anything definitive. Well, I reckon the cops would have a different view to the same set of facts.

MARGOT O'NEILL: Getting at all the relevant information is a problem for families. The Aged Care Act describes any information relating to the affairs of nursing home providers as "protected information". So a version of aged care WikiLeaks could land you in jail for two years.

ADRIAN NYE: The accreditation agency that ought to use transparency as the, to use the cliche, the sunshine that can keep all this stuff clean and spick and span, it's exempt from FOI. It hides behind the corporate veil of being a company, what's that about?

MARGOT O'NEILL: Industry also believes the accreditation and complaints schemes need reform.

PATRICK REID, LEADING AGED SERVICES AUSTRALIA: I think certainly that more transparency is required. I think the results need to be shared and without that, without more information it is very hard to improve the service.

MARGOT O'NEILL: Lawyers from Slater and Gordon say the Commonwealth could find itself the subject of legal action over nursing home standards, maybe even a class action.

ANDREW BAKER, SLATER AND GORDON: If it can be shown that the Commonwealth owes a duty of care towards the residents of those facilities in terms of its accreditations and it can be shown that they're accreditations that shouldn't have been given or renewed, then there is a potential for people to have a claim against the Commonwealth.

MARGOT O'NEILL: The possible class action is being led by marketing consultant Patrea Salter who's battled for years with a nursing home over her father's care.

PETREA SALTER, DAUGHTER: He's an 84-year-old Australian who has done so much for Australia and he's being made out to be a liar. All his suffering, all his screams for help, all his cries for help, all my cries for help from everyone in the Government, from the scheme are just ignored. It's just a dreadful, dreadful situation. In Australia we should not treat our elderly like this.

MARGOT O'NEILL: Margot O'Neill, Lateline.

Abuse of Process

Abuse of process

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This law-related article does not cite its references or sources. You can help Wikipedia by including appropriate citations, which can be found through legal research. (June 2009)

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Abuse of process is a cause of action in tort arising from one party making a malicious and deliberate misuse or perversion of regularly issued court process (civil or criminal) not justified by the underlying legal action.
It is a common law intentional tort. It is to be distinguished from malicious prosecution, another type of tort that involves misuse of the public right of access to the courts.
The elements of a valid cause of action for abuse of process in most common law jurisdictions are as follows: (1) the existence of an ulterior purpose or motive underlying the use of process, and (2) some act in the use of the legal process not proper in the regular prosecution of the proceedings.^[1] Abuse of process can be distinguished from malicious prosecution, in that abuse of process typically does not require proof of malice, lack of probable cause in procuring issuance of the process, or a termination favorable to the plaintiff, all of which are essential to a claim of malicious prosecution.^[2] "Process," as used in this context, includes not only the "service of process," i.e. an official summons or other notice issued from a court, but means any method used to acquire jurisdiction over a person or specific property that is issued under the official seal of a court.^[3] Typically, the person who abuses process is interested only in accomplishing some improper purpose that is collateral to the proper object of the process and that offends justice, such as an unjustified arrest or an unfounded criminal prosecution. Subpoenas to testify, attachments of property, executions on property, garnishments, and other provisional remedies are among the types of "process" considered to be capable of abuse.

BANKRUPTCY REGULATIONS 1996 - SCHEDULE 4A/Performance standards for trustees (including controlling trustees)

(regulation 8.34A)

Performance standards for trustees (including controlling trustees)

(regulation 8.34A)

Part 1 -- Preliminary

   

1.1   Purpose

             (1)  This Schedule sets out standards for the minimum level of acceptable conduct and performance of:

                     (a)  a registered trustee when exercising the powers, or carrying out the duties, of a registered trustee under the Act; and

                     (b)  a solicitor exercising the powers, or carrying out the duties, of a controlling trustee under the Act.

Note 1:       Subsection 155H(1) of the Act provides that the Inspector-General may ask a registered trustee to give the Inspector-General a written explanation why the trustee should continue to be registered, if the Inspector-General believes that the trustee has failed to comply with a standard prescribed in Schedule 4A. Under subsection 155H(2) of the Act, if the Inspector-General does not receive an explanation within a reasonable time, or is not satisfied by the explanation, the Inspector-General must convene a committee to consider whether the trustee should continue to be registered. Section 155I of the Act sets out the committee's powers when considering whether a trustee should continue to be registered.

                   Matters that the Inspector-General or a committee might consider include:

(a)    the importance of a standard that has not been complied with; and

(b)    the seriousness of the effect of a failure to comply with a standard, including the impact the failure to comply has on a particular estate; and

(c)    a trustee's performance history and whether the trustee has previously failed to comply with a standard.

Note 2:       Under paragraph 8.35(2)(a), the Inspector-General may determine that a person who is or has been a controlling trustee is not eligible to act as a controlling trustee because the person has failed to meet a standard in this Schedule that applies to a controlling trustee.

             (2)  The purpose of these standards is to ensure:

                     (a)  that a person to whom these standards apply acts at all times in accordance with the person's powers and duties under the Act and these Regulations and in relation to the practice of bankruptcy law generally; and

                     (b)  that an administration to which these standards apply is carried out consistently at a high level.

1.2   Definitions

                   In this Schedule:

"administration" means:

                     (a)  the administration of the estate of a bankrupt; or

                     (b)  the administration of a composition or scheme of arrangement under Division 6 of Part IV of the Act; or

                     (c)  the administration of a personal insolvency agreement; or

                     (d)  the administration of a debtor's property that has become subject to control under Division 2 of Part X of the Act; or

                     (e)  the administration of the estate of a deceased person under Part XI of the Act.

"contribution assessment period" , in relation to a bankrupt, has the meaning given by section 139K of the Act.

"contributions liability" , in relation to a bankrupt, means the contribution that a bankrupt is liable to pay in respect of a contribution assessment period, calculated in accordance with section 139S of the Act.

"controlling trustee" means a registered trustee or a solicitor who is controlling the property of a debtor under an authority given under section 188 of the Act.

"deceased person" means a deceased person in respect of whose estate an order for administration under Part XI of the Act has been made.

"divisible property" :

                     (a)  in relation to a bankrupt, means property divisible among his or her creditors within the meaning of section 116 of the Act; and

                     (b)  in relation to a debtor, means property divisible among his or her creditors within the meaning of section 187 of the Act; and

                     (c)  in relation to a deceased person, means the divisible property of that person's estate as defined by subsection 249(6) of the Act.

Part 2 -- General standards

Division 2.1 -- Application

2.1   Application of Part 2

                   This Part applies to:

                     (a)  the trustee of the estate of a bankrupt; and

                     (b)  the trustee of a composition or scheme of arrangement under Division 6 of Part IV of the Act; and

                     (c)  the trustee of a personal insolvency agreement; and

                     (d)  a controlling trustee; and

                     (e)  the trustee of the estate of a deceased person.

Division 2.2          -- General

2.2   Duty to act honestly and impartially

             (1)  The trustee must act honestly and impartially in relation to each administration, including not signing, or associating himself or herself with, a document that the trustee knows, or ought reasonably to know, is false or misleading.

             (2)  The trustee must not include in any document prepared by the trustee a clause that disclaims the trustee's responsibility for the document's authenticity.

2.3   Conflict of interest

                   If, during an administration, it becomes apparent that the trustee has an actual or potential conflict of interest in relation to the administration, the trustee must, as soon as practicable after becoming aware of the conflict of interest:

                     (a)  notify the creditors, the person who appointed the trustee, a committee of inspection or the court, as appropriate, of the conflict of interest; and

                     (b)  take appropriate steps to avoid the conflict of interest.

Examples:  Conflicts of interest

1.  The appointer or, in the case of a sequestration order, the bankrupt is or was a client of the trustee or the trustee's firm in relation to a financial, trust or insolvency planning matter.

2.  The trustee or a member of the trustee's firm is a personal friend, relative or business associate of the debtor.

2.4   Use of information relating to an administration

                   The trustee must comply with section 16A of the Privacy Act 1988 when dealing with information relating to an administration.

Note:          Section 16A of the Privacy Act 1988 provides that an organisation must not do an act, or engage in a practice:

(a)    that breaches an approved privacy code binding the organisation; or

(b)    to the extent (if any) that the organisation is not bound by an approved privacy code--that breaches a National Privacy Principle.

                   The National Privacy Principles are set out in Schedule 3 to the Privacy Act 1988 .

2.5   Compliance with standards by trustee's employees

                   The trustee must ensure that his or her employees comply with these standards.

2.6   Preliminary inquiries and actions

                   The trustee must undertake preliminary inquiries and actions at the start of each administration, including the following:

                     (a)  informing the bankrupt, debtor or legal personal representative of the deceased person of his or her obligations under the Act and the penalties for failing to comply with those obligations;

                     (b)  obtaining and reviewing the statement of affairs of the bankrupt, debtor or deceased person;

                     (c)  if necessary, interviewing the bankrupt, debtor or legal personal representative of the deceased person to clarify any matters in the statement of affairs;

                     (d)  identifying and making an assessment of realisable assets that could be expected to:

                              (i)  provide, on a cost-benefit basis, a return to creditors; or

                             (ii)  contribute to the payment of the costs and fees of the administration;

                     (e)  assessing a bankrupt's contributions liability;

                      (f)  determining the likelihood of whether the estate of the bankrupt or deceased person, or the property of the debtor, includes property that can be realised to pay a dividend to creditors;

                     (g)  if the trustee has a genuine reason for believing that a bankrupt, debtor or legal personal representative of the deceased person may not have disclosed an interest in real or other registered property--conducting appropriate searches for such property;

                     (h)  if information obtained from a search mentioned in paragraph (g) shows that the bankrupt, debtor or legal representative of the deceased person has not made full and true disclosure of his or her interest in property:

                              (i)  making inquiries of third parties about the information; or

                             (ii)  if further inquiries are not made, explaining to the creditors why further inquiries were considered unnecessary;

                      (i)  if the trustee considers that there may have been antecedent transactions--making inquiries of third parties to identify those transactions;

                      (j)  cooperating with the Inspector-General by, for example, responding to reasonable requests for information.

2.7   Investigation of matters affecting administration

             (1)  The trustee must consider the views of creditors regarding the extent to which investigations are undertaken in an administration.

             (2)  The trustee must inform creditors, as soon as practicable, of the outcomes of inquiries undertaken in the administration.

Division 2.3 -- Assets

2.8   Realising assets

                   The trustee must realise only those assets:

                     (a)  that will give a cost-effective return to creditors; or

                     (b)  that contribute to the payment of the costs of the administration; or

                     (c)  that may be realised in accordance with a personal insolvency agreement.

2.9   Ownership or interests in assets

                   In determining the ownership of, or an interest in, an asset that is part of divisible property, the trustee must act reasonably and claim only the amount that fairly represents the interest in, or value of, the asset.

2.10   Obtaining advice about interest or value

                   If the value of divisible property is likely to have a material impact on the administration, the trustee must obtain advice from an independent expert in assessing:

                     (a)  the extent of the trustee's interest in any realisable asset; and

                     (b)  the value of the property or offers for the property.

2.11   Disposal of property

                   The trustee must act independently and impartially in undertaking transactions and dealings relating to the disposal of the property of a bankrupt, debtor or deceased person.

2.12   Records

                   If, in an administration, the trustee makes a decision about the identification, protection, realisation or write-off of a significant asset of a bankrupt, debtor or deceased person that may have a material impact on the administration, the trustee must:

                     (a)  record the decision in writing; and

                     (b)  keep the record on the trustee's file for the administration.

Division 2.4 -- Remuneration and costs

2.13   Costs incurred to be necessary and reasonable

                   In conducting an administration, the trustee must:

                     (a)  incur only those costs that are necessary and reasonable; and

                     (b)  before deciding whether it is appropriate to incur a cost, compare the amount of the cost likely to be incurred with the value and complexity of the administration.

2.14   Receipt of moneys as trustee's remuneration

             (1)  If the trustee receives moneys from a debtor, bankrupt, legal personal representative of a deceased person, creditor or third party that are intended to cover the trustee's remuneration, the moneys must be:

                     (a)  included in the trustee's remuneration fixed in accordance with section 162 of the Act; and

                     (b)  properly accounted for in accordance with sections 168 and 169 of the Act.

2.15   Rate for tasks undertaken by trustee's staff

                   The trustee must ensure that time billed for a task undertaken in conducting an administration is charged at the appropriate rate for the level of staff who would be reasonably expected to undertake the task.

2.16   Records

                   The trustee must ensure that proper records are kept that:

                     (a)  provide evidence of the time spent on work done in conducting an administration; and

                     (b)  adequately describe the nature of the work.

Division 2.5         -- Files and access to information

2.17   File maintenance

             (1)  The trustee must keep separate files for each administration.

             (2)  The trustee must keep a record of every material decision in an administration, and any supporting documentation relied on in relation to the decision, on the file for the administration.

2.18   Provision of information to creditors

             (1)  This clause applies to:

                     (a)  the trustee of a composition or scheme of arrangement under Division 6 of Part IV of the Act; and

                     (b)  the trustee of a personal insolvency agreement; and

                     (c)  the trustee of the estate of a deceased person.

             (2)  The trustee and the trustee's staff must give information about an administration to a creditor who reasonably requests it.

Division 2.6         -- Meetings of creditors

2.19   Need for meeting

                   The trustee must consider whether the matters sought to be addressed at a meeting of creditors:

                     (a)  require the holding of a meeting; or

                     (b)  could be addressed more cost effectively by another form of communication with creditors, for example, a creditors' resolution without a meeting in accordance with section 64ZBA of the Act.

2.20   Matters to be considered when holding a meeting

                   In deciding whether the proposed time and place for a meeting of creditors is convenient for the creditors, the trustee must consider the following:

                     (a)  the requirements for meetings set out in the Act and these Regulations;

                     (b)  the location of creditors;

                     (c)  the ability of creditors to return proxies and statements of debt;

                     (d)  the complexity of issues to be considered by creditors before the meeting.

2.21   Attendance at meeting

                   The trustee, or a person appointed under subsection 63B(1) of the Act to represent the trustee at a meeting of creditors, must attend the meeting.

2.22   President's duties at creditors' meeting

             (1)  This clause applies to the following persons:

                     (a)  a trustee who is elected to preside at a meeting of creditors;

                     (b)  a person appointed under subsection 63B(1) of the Act to represent the trustee at a meeting of creditors;

                     (c)  a controlling trustee presiding at a meeting of creditors.

             (2)  The person must:

                     (a)  ensure that proper meeting procedures are followed; and

                     (b)  ensure that the requirements relating to meetings set out in the Act and these Regulations are complied with; and

                     (c)  ensure that all persons attending the meeting who are entitled to ask questions of the trustee, the bankrupt, the debtor or the legal personal representative of the deceased person are given an opportunity to do so; and

                     (d)  ensure that the minutes secretary complies with the requirements of section 64Z of the Act; and

                     (e)  take reasonable steps to establish whether there is sufficient evidence to support a creditor's statement under section 64D of the Act in relation to the amount of liability of the bankrupt, the debtor or the estate of the deceased person to the creditor.

2.23   Attendance of Inspector-General at meetings

                   The trustee must not prevent the Inspector-General from attending, or participating in, a meeting of creditors.

Division 2.7         -- Trustee's accounts

2.24   Records of accounts

             (1)  The trustee must maintain a separate record of receipts and payments for each administration.

             (2)  If a single bank account is kept for 2 or more administrations, the trustee must collectively reconcile the records for the individual administrations with the bank records each month.

2.25   Verifying payments and transfers

                   The trustee must verify all payments from an administration, and transfers between estates, by reference to appropriate supporting vouchers and original documents kept on the administration file.

2.26   Cash book

                   The trustee must regularly reconcile the cash book for an administration with the bank records for the administration, in accordance with the amount of activity in relation to the administration.

Part 3 -- Standards for trustees other than controlling trustees

Division 3.1 -- Application

3.1   Application of Part 3

                   This Part applies to:

                     (a)  the trustee of the estate of a bankrupt; and

                     (b)  the trustee of a personal insolvency agreement; and

                     (c)  the trustee of the estate of a deceased person.

Division 3.2         -- Reporting to creditors

3.2   Notification of administration

                   The notice given by the trustee to the creditors of a bankrupt, debtor or deceased person must include the following information:

                     (a)  the name, date of birth, address and occupation of the bankrupt, debtor or legal personal representative of the deceased person;

                     (b)  the business name or name of any associated entity or related entity of the bankrupt, debtor or deceased person;

                     (c)  the date and type of administration;

                     (d)  an outline of matters investigated by the trustee up to the date of the notification;

                     (e)  advice about any possible contributions liability of the bankrupt;

                      (f)  any matters the trustee has identified as needing further investigation.

Division 3.3 -- Creditors' claims

3.3   Provable debts in a joint administration

                   In conducting an administration in relation to joint bankrupts or debtors, the trustee must ensure that a debt is proved in the appropriate estate.

3.4   Evidence relating to proof of debt

                   The trustee must ensure that each creditor's claim or proof of debt in relation to an administration bears evidence of:

                     (a)  its admission or rejection; and

                     (b)  the reason for its admission or rejection; and

                     (c)  the amount for which the claim or proof of debt has been admitted.

3.5   Evidence of liability for debt

             (1)  If necessary, the trustee must ask a creditor to give evidence in writing in relation to a debt claimed by the creditor:

                     (a)  to establish the liability of a bankrupt, a debtor or the estate of a deceased person for the debt; or

                     (b)  to identify the estate or property against which the claim should be admitted.

             (2)  If the trustee considers that evidence given under subclause (1) is insufficient for the purposes of paragraph (1)(a) or (b), the trustee, before asking for further information, must have regard to the expected dividend rate and the materiality of the issue requiring clarification.

             (3)  The trustee must keep a copy of any evidence or information relied on in deciding, for the purposes of voting or distributing dividends, whether to accept or reject the creditor's claim.

Division 3.4 -- Distribution of dividends

3.6   Creditors' views to be considered

                   The trustee must consider the views of creditors in relation to whether moneys held by the trustee should be:

                     (a)  applied to conduct further investigations in relation to the administration; or

                     (b)  distributed as a dividend.

3.7   Distribution of estate funds

             (1)  The trustee must distribute estate funds in a timely manner, having regard to:

                     (a)  the complexity of the administration and the claims of creditors; and

                     (b)  the amount of funds available for distribution; and

                     (c)  the need to retain funds in the estate or property to meet existing or expected commitments.

             (2)  The trustee must make an interim distribution of dividends to creditors unless an existing or expected commitment is likely to account for a significant level of the available funds from the estate or property.

3.8   Advice relating to dividends and administration

                   The trustee must, when distributing dividends to the creditors of a bankrupt, a debtor or the estate of a deceased person, advise creditors about whether:

                     (a)  further dividends are expected to be distributed; or

                     (b)  the administration is finalised.

3.9   Records

                   The trustee must keep a record of the following information for each administration:

                     (a)  the name of each creditor who received a dividend;

                     (b)  the amount of each admitted claim;

                     (c)  the amount of dividend paid to each creditor.

Part 4-- Standards for trustees of bankrupt estates

Division 4.1 -- Application

4.1   Application of Part 4

                   This Part applies to:

                     (a)  the trustee of the estate of a bankrupt; and

                     (b)  the trustee of the estate of a deceased person.

Division 4.2 -- Assets

4.2   Identifying assets for vesting

                   The trustee must take appropriate steps to identify the assets of the estate of a bankrupt or deceased person that will vest in the trustee, including the following:

                     (a)  obtaining and reviewing the statement of affairs of the bankrupt or deceased person;

                     (b)  considering the size of the deficiency in the estate for the purpose of finding possible assets or determining whether an issue needs to be investigated;

                     (c)  considering the activities and circumstances of the bankrupt or deceased person to decide whether assets disclosed by the bankrupt or the legal representative of the deceased person are consistent with what would be expected of a bankrupt having a similar background or undertaking a similar activity;

                     (d)  if the bankrupt is or was, or the deceased person was, involved in significant corporate or trust activity--making inquiries of third parties (for example, solicitors, accountants, creditors, associated entities and financial institutions) to establish whether there is any divisible property or antecedent transactions.

4.3   Protecting certain assets

                   The trustee must take appropriate steps to protect assets with a commercial value that have vested in him or her, including doing any or all of the following:

                     (a)  ensuring that the assets are adequately insured;

                     (b)  taking possession of the assets;

                     (c)  perfecting legal ownership of the assets.

Division 4.3         -- Contributions

4.4   Application of Division 4.3

                   This Division applies to the trustee of the estate of a bankrupt.

4.5   Income and contribution assessment

             (1)  The trustee must, as soon as possible after all necessary information has been made available, make an assessment of:

                     (a)  the income of a bankrupt in respect of a contribution assessment period; and

                     (b)  the contribution that the bankrupt is liable to pay.

             (2)  The trustee must:

                     (a)  act fairly and reasonably in determining the time for payment of contributions liability; and

                     (b)  if full payment within the contribution assessment period or before discharge would cause hardship to the bankrupt, consider giving the bankrupt an extension of the time for payment of contributions liability.

             (3)  The trustee must give the bankrupt a copy of the assessment of income and contributions liability, setting out and explaining the basis on which the amount of any contributions liability has been calculated.

4.6   Monitoring payment of contributions

                   The trustee must:

                     (a)  monitor the payment of contributions by a bankrupt to ensure the contributions liability is discharged; and

                     (b)  if necessary, take appropriate steps to recover contributions that remain unpaid after the time for payment has passed.

Part 5 -- Standards for controlling trustees

   

5.1   Application of Part 5

                   This Part applies to a controlling trustee.

5.2   Notification of administration

                   The notice given by the controlling trustee to the creditors of the debtor must include the debtor's name, date of birth, address and occupation.

5.3   Investigating debtor's property and income

             (1)  As soon as practicable after an authority under section 188 of the Act becomes effective, the controlling trustee must conduct appropriate investigations of the debtor's property and income.

             (2)  If the debtor's property includes significant real estate, company structures or motor vehicles, the controlling trustee must:

                     (a)  search the appropriate registries for information about the property; and

                     (b)  obtain advice from an independent expert about the value of the property.

             (3)  If the debtor was or is involved in significant corporate or trust activity, the controlling trustee must take appropriate steps to identify the assets of the debtor that will be subject to the personal insolvency agreement, including making inquiries of third parties (for example, solicitors, accountants, creditors, associated entities and financial institutions) to establish whether there is any divisible property or antecedent transactions.

5.4   Report to creditors

                   The controlling trustee's report under section 189A of the Act must also include the following:

                     (a)  information about each matter mentioned in subsection 188A(2) of the Act;

                     (b)  the basis on which the debtor's property has been valued;

                     (c)  the kind of investigations the controlling trustee has carried out and whether any other matters need to be investigated;

                     (d)  the reasons for the controlling trustee's opinion about whether creditors' interests would be better served by accepting the debtor's proposal for dealing with the debtor's affairs under Part X of the Act or by the bankruptcy of the debtor.

5.5   Records

                   The controlling trustee must ensure that:

                     (a)  bank accounts maintained in accordance with sections 168 and 169 of the Act; and

                     (b)  records maintained in accordance with section 173 of the Act in respect of all transactions relating to the debtor's property;

are kept separate from records relating to any later administration that takes place in relation to the debtor.

5.6   Voting at creditors' meeting

                   In deciding whether a creditor is entitled to vote at a meeting of creditors, the controlling trustee must:

                     (a)  have regard to the merits of the creditor's claim; and

                     (b)  act impartially and independently, without regard to the debtor's wishes.

 

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