The movie ‘Worth’ starring Michael Keaton is worth a look for lawyers working in the personal injury and insurance space. It tells the story of the victims compensation fund set up following the Twin Towers tragedy in September 2001. For those of us who remember the terrible events it was an unimaginable horror and struck our human hearts with sorrow like nothing else we had seen in the modern era. I remember I was watching Rove on channel 9 when the show cut out to a scene of one of the towers already on fire. Minutes later another plane struck the second tower and my heart sunk in horror and disbelief. Is this for real? Is this really happening?
The movie begs the question of how much is one persons’ life worth compared to another? Is a high powered CEO’s life working in one tower worth more than a cleaner scrubbing floors in the second tower? These are the kinds of questions the movie wants to answer but does not quite get there and that is probably because the human condition is complex and how we judge someone’s worth can often be subjective and arbitrary depending on who’s judging.
In institutional child sexual abuse claims we are often faced with the same dilemmas as legal practitioners and judges in this very complex and difficult area of law. The National Redress Scheme acknowledges the wrongs committed against survivors of child sexual abuse. The average payment acknowledging the wrongs committed against a survivor of institutional abuse is $85,000. It is probably enough to walk away with for most of us but whether you are walking away happy is another question.
At Chamberlains Law firm we give our client’s the opportunity to explore what their claim might be worth. Our aim is to achieve an acknowledgement of the wrongs committed against our survivors and financial settlement through civil abuse action in the courts that meets our client’s individual circumstances. There is no perfect settlement and there are never guarantees in litigation but we will fight hard to ensure we get the best outcome we can for our clients.
This article was prepared with the assistance of Keziah Holdsworth*
Chamberlains Law Firm has further strengthened its commitment to the Hunter/Newcastle region by appointing Marissa Dimarco as a Director to help expand and grow its Newcastle office.
Marissa Dimarco has been a Partner at a national law firm and a Director of two boutique law firms, one of which she founded, prior to her appointment with Chamberlains Law Firm on 8 July 2024.
Managing Director, Stipe Vuleta said “the firm was committed to growth in the Hunter region and Marissa’s appointment was part of the firm’s strategy to boost its presence and brand in the Newcastle and Hunter regions. Marissa has a diverse client base which is complimentary to the national practice of Chamberlains Law Firm. She will further strengthen our national capability in Commercial, Corporate and Property Law. “
Marissa is a Corporate and Commercial Lawyer with experience in commercial contract drafting and negotiation, privacy law, technology law, franchising, joint ventures, business and share sales and acquisitions and corporate governance. She has acted for clients across multiple Australian and International jurisdictions and has expertise in niche areas of law including Mining, Manufacturing, Resources and Not for Profits/Charities.
In addition, Marissa has property law expertise and has managed and co-ordinated large property teams and national property law tenders undertaking large strata, industrial and residential subdivisions.
Marissa is also a Notary Public.
Marissa said –
“I am delighted to be joining the team at Chamberlains Law Firm. The firm is an excellent fit in terms of culture, team expertise, vision, technology, innovation and strategic direction. I remain grateful for the continued support of my clients and referrers. I look forward to growing the Chamberlains Law Firm team in Newcastle and providing advisory and legal services to commercial, corporate and property law clients and working with referrers and other advisors to achieve commercially desirable legal outcomes.”
Paid agencies and agents are becoming increasingly prevalent as representatives in Fair Work Commission (FWC) matters. A paid agent is an agent who charges or receives a fee to represent a person in the matter other than a lawyer.
Currently, section 596 of the Fair Work Act 2009 (FWA) provides that a paid agent may represent a person in a matter before the FWC on the condition that they have received permission from the FWC. While engaging a paid agent (as opposed to a lawyer) may appear appealing to a person (an Applicant) from a cost-effective perspective, more often than not, the Applicant is at a significant disadvantage and their prospects of success often hindered due to paid agents not possessing the qualifications and expertise of a lawyer.
This has sparked the FWC’s increasing criticism of paid agents and their practices with demands for more robust regulation of the currently unregulated industry. See Paid Agents Working Group established | Fair Work Commission (fwc.gov.au)
What is the difference? What are the risks?
The conduct of lawyers is regulated by professional and ethical conduct rules as well as statutory requirements. Among others, this regulation imposes an obligation for a lawyer to act in the best interests of their client, follow their client’s instructions (where lawful and competent) and provide clear, competent and timely legal advice and services to their client.
In contrast, no regulatory framework exist which governs paid agents. This has led to the FWC exercising its discretionary power to uphold its paramount obligation of ensuring it operates in a fair and transparent nature.
What does this really mean?
Let’s take a look at some notable cases which highlight the risks of engaging paid agents.
Samuel Howell v Elite Elevators Corporation Pty Ltd [2023] FWCFB 265
In this matter, the Applicant was represented by ‘Employee Dismissals’ who submitted an application for Unfair Dismissal with the FWC on his behalf. This paid agent represented the Applicant on a ‘no win no fee’ basis.
A conciliation occurred in this matter prior to proceeding to a conference before Commissioner Allison (the Commissioner). Both the Applicant and his paid agent attended the conference, and the parties reached a settlement agreement in which the agreed standard FWC terms of settlement were read out and explained by the Commissioner.
Shortly thereafter, the agreed terms of settlement were emailed by the Commissioner in writing for signature. Following the conference, the Applicant emailed the Commissioner requesting clarification as to how he should sign the terms of settlement. To which, the Commissioner responded that they had already received the signed terms of settlement, however the Applicant’s name was omitted from the execution block and the execution had not been witnessed as required.
Following this, the Applicant notified the Commission that he had not received a statement of service or any of the agreed financial compensation amount, both of which were pursuant to the agreed terms of settlement. After investigation by the Commission, the Applicant received an invoice from his paid agent for an outstanding balance of $4,490 which already included the total financial settlement amount. This amount had been paid directly to the Applicant’s paid agent and, the Applicant ultimately did not receive any financial compensation. In fact, he owed his paid agent the amount of $4,490 as the paid agent’s fees significantly exceed the total financial settlement amount paid by the Employer. It is important to note that that the total fees incurred for the Paid Agent exceeded $4,490, leaving the Applicant in a significantly worse position financially than he was prior to engaging the paid agent.
Shortly thereafter, the Applicant’s paid agent filed a Form F50 notice of discontinuance with the FWC for this matter indicating that the Applicant wholly discontinued the matter as part of the settlement agreement. This form was signed by the paid agent on behalf of the Applicant. Upon receiving this notice, the Applicant stated that he was “horrified by this outcome” and advised of his intention to file a formal complaint against the Paid Agent.
The matter was then escalated for investigation by the President of the FWC who found that the Applicant did not give any instructions to discontinue the matter to his paid agent. In other words, the paid agent filed the notice of discontinuance on behalf of the Applicant without the Applicant’s authorisation.
The President determined that the notice of discontinuance was invalid and relisted the matter for a hearing. After collecting and reviewing evidence which included correspondence between the Applicant and his paid agent, the President made the following findings:
Ultimately, the President recommended that the Paid Agent repay the financial settlement amount to the Employer for the Employer to repay this directly to the Applicant and also indicated that the Paid Agent should not recover its fees from the Applicant. Further, the President emphasised that the paid agent had engaged in misleading and unethical conduct and went a step further to highlight some other 30 cases where the same paid agent had engaged in similar wrongdoings.
The above case is just one of hundreds of unfortunate stories where both employers and employees have been stung by the shortfalls of paid agents. In response, the FWC has established a ‘Paid Agents Working Group’ which will be tasked with policing paid agents and hopefully achieve a regulatory scheme which governs paid agents and lawyers alike.
If you require assistance with a FWC matter please reach out to our Workplace team on 02 6188 3600 for an obligation free discussion on how our lawyers can assist you with your matter.
*This article was prepared with the assistance of Isabella Turner*
Most employment relationships will end on a mutual understanding, that is by having the employer or employee formally end the relationship between the parties.
However, there are some occasions where the conduct of the employer can amount to a repudiation of the contract, where the employer by certain words or conduct, demonstrates that they intend not to be bound by the terms of the contract. Those circumstances can sometimes be considered as a ‘constructive dismissal’.
This was defined in Western Excavating v Sharp [1978] QB 761 at 769 by Lord Denning MR as a situation where:
‘the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. Then the employee is employee is entitled to treat himself as discharged from any further performance’
Hower Lord Denning does add two crucial elements:
The conduct must in either case be sufficiently serious to entitle the employee to leave at once; and the employee must make the decision soon after the conduct is made apparent to him.
So what kind of conduct is sufficiently serious?
In Hem v Cant [2007] FCA 81, the court found that constructive dismissal applied when an employer falsely claimed an employee had stolen company property and requested his resignation.
Moreover, not being paid wages or even superannuation can also constitute constructive dismissal however not always. As the case of Bruce v Fingal Glen Pty Ltd [2013 FWC 3941 sets out, payment of wages a couple of days late may not be regarded as forcing the resignation and so not construed as constructive dismissal.
In any case, the conduct that the employer would need to engage in for it to be construed as constructive dismissal would be based on a wide variety of grounds.
What about the Fair Work Act?
Being constructively dismissed fits within the application of unfair dismissal law under statute. It is then commonly treated as a forced resignation.
Section 386(1)(b) states that an individual will be deemed to have faced unfair dismissal at the behest of the employer if “the person resigned from their employment but was compelled to do so due to the conduct, or series of actions, initiated by their employer”.
The Fair Work Commision is required to determine whether the misconduct “forced” the employee to resign or terminate their employment.
Again this can include a broad set of conduct, such as:
However, the courts have interpreted that employees were not ‘forced’ out of their employment in the following instances:
What are my Remedies?
If constructive dismissal is established the employee will be entitled to resign without notice and may be entitled to damages for the breach of the contract. The employee may then be able to make an unfair dismissal application to the Fair Work Commission.
The Commission may order a person’s reinstatement, or financial compensation, if the Commission is satisfied that the person was protected from unfair dismissal at the time of being dismissed, and found that the person has been unfairly dismissed.
Key takeaways
Constructive dismissal occurs when an employer’s actions or conduct fundamentally breach the employment contract, entitling the employee to resign immediately and potentially seek compensation.
The Workplace Team at Chamberlains Law Firm have all the necessary expertise to help you understand this process and accompany you in case of a dispute.
As Generative AI, seen through products like ChatGPT and Azure AI, become more advanced, it is increasingly being used by businesses within the workplace. Whilst this development is transforming workplaces, leading to increased productivity and efficiencies, the use of AI in the workplace is accompanied by significant risk of liability. Therefore, it is important that business owners and employers protect themselves accordingly.
The Risks of AI
AI, when used by companies, can generate significant risk and liability, when used carelessly or incorrectly.
Privacy and Confidentiality
Particularly, there are growing privacy and confidentiality concerns arising from the use of AI within the workplace. Generative AI is governed by the Privacy Act 1988 (Cth) and susceptible to civil actions arising from the Act. Similarly, employers and businesses remain liable for any breaches of the Act that are caused by AI.
Further, when inputting confidential information into AI generators, there are concerns that some systems lack the necessary data protection mechanisms to adequately protect the data. There have been instances of data leaks arising from the use of AI.
Discrimination
Bias in AI systems have also been known to occur, with the algorithms potentially reflecting discriminatory societal and cultural factors. A recent case in the US settled for US$365,000 after a recruitment AI software automatically rejected female applicants aged 60 or older, and male applicants aged 60 or older.[1] Therefore, relying on generative AI puts employers at risk of discrimination, even if they are unaware of its occurrence.
False Information
AI systems have also been known to generate false and inaccurate information known as ‘hallucinations’. This puts businesses and employees at risk of engaging in activities or business decisions based off false and misleading information.
What Employers Should Do
Clearly, there are significant risks associated with AI in the workplace. However, if you protect your business properly, AI can be used to enhance your business, improving efficiencies and aiding employees in the workplace.
All employers that use AI within the workplace should implement a Generative AI Use Policy which will guide employees about if and when it is acceptable for them to use AI within the workplace, and any rules employees must follow when using AI programs.
Within this Policy, the following topics should be addressed.
The Workplace Team at Chamberlains Law Firm has particular expertise in providing bespoke Generative AI Policies for your business and workplace, to ensure that any use of AI only enhances your workplace. If you wish to discuss further, please give our team a call on 02 6188 3633.
[1] iTutorGroup to Pay $365,000 to Settle EEOC Discriminatory Hiring Suit | U.S. Equal Employment Opportunity Commission
*This article was prepared with the assistance of Oscar Arnott*
In the wake of the latest Fair Work Commission (FWC) annual report, applications for Unfair Dismissal have taken the cake as the most commonly lodged type of application. Unfair Dismissals can be a minefield for employers to navigate, in particular the process of summary dismissal.
What is Summary Dismissal?
Under the National Employment Standards (NES), most workers (exceptions apply) are provided with a right to a minimum notice period of one (1) week per year of service.
If a worker is summarily dismissed, this refers to the immediate (on-the-spot) termination of employment, where the worker is not provided with any notice, nor are they paid in-lieu of their notice period. Generally, once a worker is eligible to be protected by a minimum notice period under the NES, their employment can only be summarily dismissed if they are found to have engaged in serious misconduct.
However, the mischaracterisation of a worker’s behaviour as serious misconduct can find an employer staring down the barrel of an unfair dismissal claim in the FWC. This is not surprising noting that the element of ‘serious misconduct’ is riddled with complexities and uncertainty.
What is Serious Misconduct?
Serious misconduct is defined and regulated under the rule 1.07 of the Fair Work Regulations 2009 (Cth), providing for conduct which satisfies:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
In practice, wilful or deliberate behaviour amounting to serious misconduct has been characterised in a range of ways, thereby cultivating a basis for an unfair dismissal application. What is considered as serious misconduct isn’t black and white; it could be a single act of disobedience in some cases and in others, it may be a serious of conduct amounting to something serious. For employers, it can be incredibly tricky to know when an employer’s conduct is so serious that it warrants immediate dismissal.
However, we can look to common law interpretations for guidance. In Concut Pty Ltd v Worrell (2000) 103 IR 160, Justice Kirby clarified that serious misconduct involves conduct regarding serious matters which:
Where an employee’s conduct satisfies one of the above, this may be considered as grounds for summary dismissal.
Single Acts
With respect to “single acts” the decision of Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 established that single acts of misconduct, must not be “trivial breaches” of the express or implied terms of the employment contract.
For an employees’ single act to satisfy the requirements, it must breach the terms of the contract that are relevant to the employee’s duties. If the single act is a breach of express/implied terms that are irrelevant to an employee’s particular duties, this is unlikely to satisfy as wilful and deliberate behaviour warranting serious misconduct.
Further, if the conduct has occurred and has been waived in the past, even when known to the employer, this may not satisfy as serious misconduct as it can then be argued that it does not satisfy the element of wilful and deliberate.
Serious Misconduct in Practice
So, what does this look like in the real world? Below we explore some key cases where an employee’s actions were considered as a valid reason for summary dismissal.
Don’t Go It Alone
Dealing with employee misconduct is often a legal minefield. As such, seeking legal advice can be crucial to protecting your business. If an employer summarily dismisses an employee for serious misconduct, where serious misconduct did not in fact occur, they can be liable for damages for unfair dismissal. The Workplace Team at Chamberlains Law Firm can help you take steps to reduce any potential liability.
*This article was prepared with the assistance of Isabella Turner*
If you have been left out of a Will, or given a smaller provision than expected, you may be able to bring what is known as a family provision claim. A family provision claim refers to the contesting of the Will of a deceased person, on the grounds that they failed to make proper and adequate provision for someone whom they had a moral obligation to provide for.
The New South Wales Supreme Court has recently handed down a decision in Dimos v Burndred [2024] NSWSC 434 which considers this type of claim, brought by an adult son of the deceased.
Am I eligible?
“Eligible persons” may apply to the Court for a provision order, though the criteria for eligible persons differs between each State and Territory. Generally, eligible people include partners, children, and dependents. The definition of an eligible person sometimes also includes ex-partners, grandchildren, or stepchildren of the deceased. For example, the eligible persons to bring a claim can be found in:
In addition to eligibility criteria, there are also time limitations to consider when bringing a family provision claim. However, this time limit also differs between each State and Territory. In New South Wales, a family provision claim must be filed within 12 months from the death of the deceased. Whereas, in the Australian Capital Territory a family provision claim must be filed within 6 months from Probate being granted. There are also some circumstances where the court may grant an extension of time to allow a person to make an application outside of this time limit.
After eligibility is established, it is considered whether or not adequate provision for proper maintenance, education, or advancement in life was made for the applicant.
What does the court consider?
If a person is considered eligible to make a family provision claim, they must then prove the deceased had a moral obligation to provide for them, and that adequate and proper provision has not been made. This is a discretionary matter decided by the Court, and can take into consideration various elements, including:
Dimos v Burndred [2024] NSWSC 434
In the recent case of Dimos v Burndred [2024] NSWSC 434, the Court considered a claim for further provision by an adult son of the deceased, Anthony. The deceased died in 2022, leaving her estate to her three children. The Will included the adjustment of Anthony’s share to repay a loan from his sister. Though this loan was disputed by the siblings, the Court ultimately concluded that the Will be constructed to give effect to the testator’s intention, by reducing Anthony’s share and increasing the daughters share by $198,150 (the sum of the loan).
In considering the sons claim for further provision, the Court stated that there is “no doubt” that Anthony is an eligible person, and that the application was brought within the time limits. As such, the Court considered whether there was ‘adequate provision’ for Anthony through the Will. In making this decision, the Court focused on Anthony’s financial position and the competing financial position of his sister. The Court criticised Anthony in providing “incomplete, inaccurate and out of date information” regarding his financial circumstances, and ultimately dismissed his family provision claim, finding that he did not demonstrate that his mother failed to provide adequate provision.
How can we help?
If you think you might be eligible to make a family provision claim, you should seek professional legal advice as soon as possible. Our estate dispute specialists in the Private Wealth Law team at Chamberlains can assist you.
We have carefully considered the viability of the class action against Isuzu and Mazda. Following that careful consideration, we have decided to cease further investigations in relation to the potential class action.
Please note that the decision to cease further investigations does not mean that Chamberlains Law Firm have formed a view that that there are no issues relating to excessive or uneven tyre wear in vehicles sold by Isuzu and Mazda.
Chamberlains Law Firm was seeking participants to mount a class action against Isuzu and Mazda for defects contained within the suspension of the current generation of Isuzu D-Max (RG, 2019 to present) and MU-X (RJ, 2020 to present) and the current generation of Mazda BT-50 (TF, 2020 to present).
An alleged flaw in the design of the front suspension of these vehicles is allegedly leading to ‘bump steer’, which causes excessive and premature tyre wear. Drivers of the affected vehicles are alleged to have been experiencing premature and uneven tyre wear.
It was alleged that this not only results in a direct cost for the vehicle owners in having to rotate and replace tyres more frequently, but this allegedly widespread issue may also impact on the resale value of the vehicles.
It was alleged that despite this problem being apparent for a number of years, no permanent fix has been offered by Isuzu or Mazda in relation to this issue. In the meantime, independent companies are offering after-market replacement steering knuckles, at a cost of approximately $3,000 per vehicle.
It is understood the Mazda BT-50 is made with identical design elements in the same factory in Thailand as the Isuzu D-Max, following an arrangement made between the motoring industry heavyweights in 2016.
Mazda and Isuzu are yet to publicly comment on the alleged design flaw and whether a fix can be expected by impacted customers.
Both the MU-X and D-Max posted record sales figures in Australia in 2023. Over 31,000 D-Max utes and over 14,000 MU-X vehicles were sold over the same period, smashing Isuzu’s historical sales figures in both those classes, gaining ground against the class leaders Ford and Toyota.
If you believe you may be affected by issues that could give rise to a class action, our Class Actions Team is available to assist. We work with individuals and groups to assess potential collective claims and help you understand your options. You can learn more about how we support clients in class action matters by visiting our Class Action services page.
If your circumstances relate instead to an injury in a public place or an incident caused by another party’s negligence, our Injury & Compensation Team can help. Our public liability lawyers can guide you through your rights, the claims process, and what steps you may be able to take. You can reach out to our team through our Public Liability services page for more information.
Under sections 90-15 and 90–20 of Schedule 2 of the Insolvency Practice Schedule (Corporations) (Practice Schedule) of the Corporations Act 2001 (Cth) (the Act), a liquidator may apply to the court for directions and judicial advice in winding up.
Purpose of Judicial Advice
The purpose of judicial advice was to give the liquidator advice as to the proper course of action to take in the liquidation, as noted by Goldberg J in Re Ansett Australia Ltd and Korda [2002] FCA 90 (Ansett).
When liquidators seek directions from the Court in relation to any decision they have made, or propose to make, they are not seeking to determine rights and liabilities arising out of particular transactions, but are rather seeking protection against claims that they have acted unreasonably or inappropriately or in breach of their duty in making the decision. They can obtain that protection if they make full and fair disclosure of all relevant facts and circumstances to the Court. [edited for emphasis]
Liquidator’s Minimisation of Liability Acting under Judicial Advice
After being issued a direction or judicial advice, the liquidator should act in carrying out their functions. The binding effect of a direction or advice is that the liquidator, if they have made full and fair disclosure to the court, they will be protected from liability for any alleged breach of duty as liquidator to a creditor or contributory or to the company in respect of anything done by them in accordance with the direction.
Limitation of Judicial Advice
However, it is important to note that the courts will not advise on the decision making in relation to a business or commercial decision which would be more suited for the liquidator’s discretion. For instance, a liquidator’s consideration on the costs or utility of recovering from a party.
As raised by Goldberg J in Ansett:
[The courts will refrain from providing any direction or judicial advice] where there is no particular legal issue raised for consideration or attack on the propriety or reasonableness of the [liquidator’s] decision in respect of which the directions are sought. … It may be a legal issue of substance or procedure. It is insufficient to attract an order giving directions that the liquidator … has a feeling of apprehension or unease about the business decision made and wants reassurance. A court should not give its imprimatur to a business decision simply to alleviate a liquidator’s or administrator’s unease. [edited for emphasis]
Takeaway
The Court’s powers to give direction and judicial advice under these sections are intended to facilitate the performance of a liquidator’s functions and to minimise claim as to liquidator’s liabilities in winding up.
If you have any questions about insolvency proceedings or liquidation, please contact Stipe Vuleta or Hugh Smith of our office.
Toxic employees can quickly infect the workplace. Their disruptive behaviour, negative attitude and lack of accountability can have widespread impacts on productivity, culture, moral and dynamics, not only of the team they may work in but the business as a whole.
As the consequences of toxic employees are far reaching, allowing them to continue in their negative behaviour is not an option. However, many employees often find it difficult to identify and address toxic employees in the workplace.
What is a Toxic Employee
A toxic employee is an individual who:
Consequences of a Toxic Employee
Toxic employees pose significant risks to the workforce and the business. Failing to understand the profound impact that a toxic employee will have is careless. Employers should not indulge or tolerate the behaviour of toxic employees. Doing so is destructive to not only your business but to other employees as well. Toxic culture, if allowed to fester, will spread throughout the business and will be a reason as to why many other employees will resign. Ultimately, toxic culture is one of the biggest drivers of the great resignation and can turn the business into a ‘revolving door’.
What should be done?
The first port of call for employers is to call the employee into a meeting for review. During this meeting, the employer should address the behaviour head on and give the employee an opportunity to realign their behaviour and values with that of the business.
If the employee fails to make improvements, employers should look to terminate the toxic employee at earliest opportunity.
Employers need to be mindful, however, of the risk of unfair dismissal and general protection claims.
A general protections claim is brought where an employee is under the belief that they were terminated by exercising a workplace right or discriminated against.
Unfair dismissal claims on the other hand are brought where an employee considers that their employment was terminated on unjust or unreasonable grounds. However, such claims cannot be brought by employees who:
Where an employee is protected from unfair dismissal or there is a risk of a general protections claim, employers have two options. The first is to go through the disciplinary pathways as provided by the policies of the business. The drawback is that whilst this will protect the employer against a claim of unfair dismissal, these disciplinary processes are often time consuming and, in some cases, leaving the toxic employee in the workplace to fester can only make a bad situation worse. As such, the second option is to remove the employee from the workplace as soon as possible. However, if employers wish to terminate the employee at the earliest opportunity without following disciplinary procedures it is best to consult a lawyer first, in order to get assistance with navigating and mitigating the risks of unfair dismissal and general protection claims.
*This article was prepared with the assistance of Challita Tahhan