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YOU DON’T HAVE TO BE EMPLOYED TO HAVE CONTRIBUTED.

admin — Thu, 17 May 2012 00:05:01 +0000

YOU DON’T HAVE TO BE EMPLOYED TO HAVE CONTRIBUTED. is a post from: Lawyers Adelaide

When it comes to defacto separation, just because one partner was not earning an income does not mean they didn’t contribute to the relationship. A recent decision of the Court highlights the importance that is given to non-financial contributions made by one of the spouses.

On 1 July 2010 financial issues relating to the breakdown of defacto relationships, which were previously handled by the District Court, were referred by South Australia to the Family Court of Australia. Where parties separated before that date both parties must agree to “opt in” to having the matter dealt with in the Family Court or otherwise the Domestic Partners (Property) Act still applies and the cases are heard in the District Court.

A recent decision of the Court highlights the importance that the courts under either scheme generally give to non-financial contributions made by one of the spouses. These non-financial contributions can be particularly important to determining issues relating to defacto separation when the other spouse has been the primary income earner during the relationship.

In this case the Plaintiff had assisted the Defendant in the management of his business by preparing the profit and loss books and arranging the payment of bills associated with the business. This is one form of non-financial contribution that was considered by the Court in determining an appropriate division of the parties’ property. The Plaintiff was also given credit for the fact that she was primarily responsible for housekeeping, cooking and cleaning.

The case was a difficult one for the Court as the Defendant ultimately appeared unrepresented and defended himself at trial. As such he did not have the assistance of Legal Counsel to prepare and present his case. While the Court tried to avoid any bias towards the Plaintiff due to this it was inevitable that the Plaintiff’s case would appear to be better presented with the assistance of her Legal Counsel. While parties are entitled to represent themselves in Court it is not recommended that they do so as experienced Legal Counsel generally know how best to present a case and make arguments to support their client’s position.

The Plaintiff’s evidence about the length of the relationship and concerning contributions made by the parties was preferred by the Judge. The Defendant was unable to properly explain the additional drawing of monies on the parties’ loans since separation and as a result of this the Court awarded an additional amount of money to the Plaintiff.

Non-financial contributions can be particularly important to determining relationship matters when the other spouse has been the primary income earner during the relationship. It is not uncommon that one partner runs a business and the other assists with such tasks as bookkeeping for no direct payment.

If you need advice or assistance in relation to defacto separation, matrimonial property or other family law related matters contact us and arrange to meet with an experienced family lawyer in Adelaide for an obligation free first consultation at Websters Lawyers. Websters Lawyers have specialist family lawyers with the skill and experience that you need to ensure that you secure the best outcome and to provide the right advice at a time you need it.

H, M v C, L [2012] SADC 44

IMPRISONED FOR ACCEPTING A GIFT

admin — Mon, 14 May 2012 06:22:24 +0000

IMPRISONED FOR ACCEPTING A GIFT is a post from: Lawyers Adelaide

A man was imprisoned for fourteen days for two charges that included accepting as a gift from a friend a single round of ammunition that he intended to make into a necklace.

The man was charged with a number of offences including possession of a slingshot and accepting the ammunition when he did not hold a firearms licence that authorised him to possess a gun designed to fire that type of ammunition. The Court accepted that he did not appreciate it was unlawful to be in possession of a single round and also that he did not believe that the slingshot was a prescribed dangerous article because he had come across those types of items in markets. Nevertheless, the Magistrate imposed a penalty of imprisonment of 14 days for the two offences, along with further periods of imprisonment for other unrelated charges.

On appeal to the Supreme Court it was held that it was not appropriate for the Magistrate to impose a sentence of imprisonment for possession of the slingshot which was in the lower range of seriousness for the offence of possessing a dangerous article, nor for carrying a single round of ammunition when there was no evidence that the man was capable of firing it and had simply intended to make a necklace of it. The sentence of imprisonment was set aside and replaced with a fine of $250 for each offence.

When you are facing a criminal charge no matter whether or not you think the circumstances are serious, it is important to have an experienced criminal lawyer advise you and represent you in Court. For a specialist criminal lawyer in Adelaide contact Websters Lawyers and arrange a free, no obligation first consultation to know exactly where you stand.

Bui v Police [2012] SASC 72

WHAT CAN BE DONE TO AVOID DEMERIT POINTS?

admin — Thu, 03 May 2012 04:57:40 +0000

WHAT CAN BE DONE TO AVOID DEMERIT POINTS? is a post from: Lawyers Adelaide

When a police fine for a speeding charge is paid or a conviction is recorded in Court, then demerit points are incurred* unless the Court is satisfied that the offence was ‘trifling’ or any other proper cause exists to reduce the number of demerit points. The Supreme Court recently considered the various grounds upon which a person charged with speeding might not incur demerit points.

In the case before the Court, the driver pleading guilty to a speeding charge for which the Magistrate imposed a conviction and fine. He had been detected speeding at 122 kph in the 110 kph limit. At the time, the traffic was light and the road was in good condition, visibility was good and no other road users were endangered by the driving. He had only exceeded the limit over a short distance after having travelled over a rise in the road, and as soon as he realised he reduced his speed.

The consequences of loss of licence were significant. Not only was his driver’s licence critical to his employment, but he lived in country town and had a child who suffered from a medical condition which meant he had to make regular trips to the city for specialist appointments.

Under section 16 of the Criminal Law (Sentencing) Act where a court finds a person guilty of an offence, the penalty may be imposed without recording a conviction if the defendant is unlikely to commit the offence again and having regard to factors such as the person’s age, character, history or physical or mental condition, whether the offence was trifling or for other extenuating circumstance good reasons exists to do so. In that event, no demerit points are incurred.

Notably, the Supreme Court commented that the mere fact that the driver had previous speeding charges did not mean that section 16 could not be used. Nevertheless, in this case the Court concluded that having regard to all the circumstances it was not appropriate to find that he was unlikely to commit a speeding offence again, therefore a conviction was imposed.

The Court then considered whether the number of demerit points could be reduced on the basis that the offence was trifling. It was acknowledged that it was not a serious offence, but the Court concluded that the driver was sufficiently in excess of the limit so as not to render the offence trifling. Finally, consideration was given as to whether there was some other ‘proper cause’ to reduce the number of demerit points for speeding. It was noted that this requires a consideration of the circumstances of the offence itself, and not the personal circumstances of the driver, although there have been occasions when the consequences for the driver have been taken into account. In this case, there was no emergency or other factor that justified the speed so as being confronted by something unexpected that required a quick reaction. It was just an ordinary case of speeding that is committed fairly often.

With regard to the driver’s personal circumstances, the Court recognised that the loss of licence for speeding will cause hardship, but in this case the hardship wasn’t so unusual as to warrant treating it as different. While the circumstances relating to the child were unusual, this was not something that arose after the event.

Despite that act that the driver in this case was not successful, it is significant, that the Supreme Court confirmed that section 16 of the Criminal Law (Sentencing) Act can be utilised even for a speeding charge. Also, it is still open for a person to apply for a reduction in demerit points on the basis that there is ‘proper cause’ based on their personal circumstances. Anyone who has received an on the spot fine for speeding or any other traffic offence and is concerned about the consequences of incurring demerit points should contact a specialist traffic lawyer in Adelaide at Websters Lawyers before paying the fine.

* It is a common misconception that you start with 12 points and then lose them, however you actually start with no points and incur them.

Miles v Police [2012] SASC 69

HOW INTOXICATION CAN AFFECT A COMPENSATION CLAIM.

admin — Thu, 03 May 2012 02:23:44 +0000

HOW INTOXICATION CAN AFFECT A COMPENSATION CLAIM. is a post from: Lawyers Adelaide

A pedestrian who was the victim of a hit and run has had his award of compensation reduced by half from $638,155.02 to $319,077.51 on the basis that he was extremely intoxicated and ought to have been aware that he was creating a situation of danger.

The incident was the culmination of a series of altercations involving the occupants of the car involved and one in which the injured person had been travelling. The plaintiff ran on to the road to collect an iron bar that had been thrown a short time earlier from the car in which he had been travelling. As the plaintiff was about to climb back into the car, the other driver, who had completed a U-turn, stopped his car, revved the engine and then drove up towards the rear of the car greatly increasing his speed and then swerved to avoid colliding with the rear of the car but struck the plaintiff.

Expert evidence was presented estimating the plaintiff’s blood alcohol concentration at the time of the collision at between 0.208% and 0.222%. Under the Civil Liability Act if a person injured in a car accident was intoxicated and the defendant alleges that the person contributed to the accident, then it will be presumed that because of their intoxicated state they were at least 25% at fault. This presumption can be rebutted by the plaintiff if they establish that the intoxication did not contribute to the accident, was not self-induced or was the result of prescription medication.

The Court concluded that a reasonable person in the plaintiff’s position (knowing that the cars had been pursing each other) would have thought he could get across the road and retrieve the iron bar before the other driver reached his location. Nevertheless, the plaintiff contributed to the collision by running onto the road when he must have known that the other driver was likely to drive erratically on that same section of road. The Supreme Court noted that it was not a case of mere intoxication, but one of extreme intoxication and that in all probability the plaintiff’s ability to take evasive action was impaired along with his judgment and decision making. On that basis the plaintiff was held to be 50% at fault and his compensation for injury sustained in the car accident was reduced by that amount.

The law relating to injury compensation can become complex, particularly where alcohol is involved. If the injured person was the driver of a motor vehicle and the evidence establishes that they had a blood alcohol concentration of 0.15% or more, or were so much under the influence of liquor or drug as to be incapable of exercising effective control of the car then the minimum reduction of their award of damages is increased to 50%. In this particular case it was also argued that the plaintiff was not entitled to compensation because he had engaged in conduct that actively incited the driver who struck him, and that he had been engaged in criminal conduct, however both of these arguments were rejected by the Court.

As can be seen from this case, when a person has been involved in a car accident or other injury claim it is important to get reliable legal advice and assistance from a specialist injury lawyer. Websters Lawyers team include experienced car accident compensation lawyers who are able to provide the right advice regarding issues such as whether a Court is likely to reduce the claim for contributory negligence, and the amount of compensation to which you might be entitled.

Motor Accident Commission v Curzons [2012] SASCFC 22

WORK CAPACITY REVIEWS – WHO HAS TO PROVE THEM?

admin — Thu, 03 May 2012 00:19:38 +0000

WORK CAPACITY REVIEWS – WHO HAS TO PROVE THEM? is a post from: Lawyers Adelaide

A person injured at work who has been incapacitated and in receipt of income maintenance payments under the SA Workers Compensation scheme for 130 weeks may be subjected to a Work Capacity Review to determine whether the Workers Compensation payments can continue. The question is, “Who has to prove whether the person injured has the capacity to work?” This is an important issue for anyone who has been injured at work and is receiving weekly income maintenance payments.

The Supreme Court recently ruled that it is WorkCover who bears the onus of proof in establishing the working capacity of an injured worker who is the subject of a Work Capacity Review of this type.

Income maintenance entitlements and Work Capacity Reviews

Under the legislation workers with an accepted claim who are totally (or in some situations partially) incapacitated currently have an entitlement to income maintenance payments for an aggregate period of 130 weeks in total.

This is made up of three entitlement periods with the first two of 13 weeks each and the third entitlement period comprised of 104 weeks, which concludes at the 130 week mark. Where a worker is partially incapacitated then they are potentially entitled to either their full income maintenance or their income maintenance entitlement less earnings from employment for the 130 week period.

The percentage amount of the entitlement decreases with time over the three entitlement periods, being 100%, 90% and 80% respectively.

At the 130 week mark, pursuant to Section 35B of the legislation, WorkCover is required to undertake a Work Capacity Review and make a determination as to whether a worker’s income maintenance payments can continue or should cease.

Where a worker is determined to have no current work capacity then their workers compensation payments will continue. Conversely if WorkCover determines that a worker has a current work capacity (ie is only partially incapacitated) then their payments will cease at the end of the 130 weeks.

An injured worker who is partially incapacitated for work, but in employment, can make an application under Section 35C for their payments to continue on the basis that they are working but because of their work-related injuries and restrictions they are unable to increase their hours or earnings. In effect, asserting that they are working to their maximum capacity. WorkCover must then make a decision on the application and a determination can be made that payments will continue, until a Work Capacity Review is undertaken again within 2 years (as is required by the legislation).

The matter before the court

In the recent case of Martin v Employers Mutual Ltd the issue examined by the Supreme Court was a dispute over a Work Capacity Review and specifically which party (WorkCover or the worker) has the onus of proving whether a worker has no current work capacity (that is likely to continue indefinitely).

The legislation defines this issue of capacity as:

Current work capacity, in relation to a worker, means a present inability arising from a compensable disability such that the worker is not able to return to work, either in his or her employment at the time of the occurrence of the disability but is able to return to work in suitable employment;

No current work capacity, in relation to a worker, means a present inability arising from a compensable disability such that a worker is not able to return to work, either in his or her employment at the time of the occurrence of the disability or in suitable employment;

The determination issued by WorkCover and subject of the original dispute was that despite the worker not being in employment in the period immediately before the end of the third entitlement period, WorkCover determined that the worker had a current work capacity and specifically could undertake suitable employment as an Assembler on a part time basis. Based on that finding WorkCover determined that the worker’s payments should cease.

The worker challenged the decision and asserted that he did not have a current work capacity and that the Assembler position identified was not suitable employment.

Ultimately, the full bench of the Supreme Court decided that it is WorkCover who bears the onus of proof in establishing that the worker has no current work capacity (in the context of a Work Capacity Review matter of this type).

It is uncertain as to how this judgment will affect the countless matters that have been put on hold in the Workers Compensation Tribunal waiting on this decision but there is fortunately some guidance and clarity now from a higher jurisdiction as to which party is ultimately required to establish their position concretely.

However, it may ultimately now force both WorkCover and workers to focus on the suitability or otherwise of employment positions nominated by WorkCover in its Work Capacity Review determinations and this is likely in turn to lead to further disputes over the positions nominated and the personal circumstances of the worker.

Martin v Employers Mutual Ltd [2012] SASCFC 36

UNCERTAINTY ABOUT LUMP SUM COMPENSATION FOR INJURED WORKERS

admin — Wed, 18 Apr 2012 05:14:53 +0000

UNCERTAINTY ABOUT LUMP SUM COMPENSATION FOR INJURED WORKERS is a post from: Lawyers Adelaide

A person who is injured at work and as a result suffers a permanent disability is entitled to a lump sum payment of compensation based on the percentage of impairment involved under section 43 of the Workers Rehabilitation and Compensation Act.

A recent judgment of the Full Bench of the Workers Compensation Tribunal has noted the continuing confusion that exists with regard to an injured worker’s lump sum entitlements under the current law. In that case the worker suffered a severe injury at work in 2007 when a forklift drove over his foot causing multiple fractures and requiring emergency surgery.

The worker was sent by Employers Mutual to the Medical Panel of South Australia for assessment of his permanent impairment pursuant to Section 43 of the Act. The Panel considered that the worker’s injury had left him with a 51% lower extremity impairment which when coupled with scarring equated to a 22% Whole Person Impairment, which was the assessment used to calculate the amount of compensation payable.

Employers Mutual issued a determination based on the Panel’s opinion. The worker, before a single judge (and on appeal before the Full Bench) asserted that his assessment of impairment should utilise a separate section of the legislation (Section 43B) which talks of total loss of various body parts and functions of the body. The difference being that the monetary entitlement potentially available under Section 43B is significantly greater than the usual entitlements based solely on the level of Whole Person Impairment (dealt with under Section 43).

The judgment makes it quite clear that the Full Bench turned its mind specifically to the impact on all Workers Compensation claims in the State if what the worker asserts is correct. In effect it would mean that every determination made by WorkCover (and its agents and self-insured bodies) regarding Section 43 entitlements under the current legislative regime could be in doubt. This could then put the entire financial viability of the scheme in question.

Given the significance of the case and the interpretation of the legislation the Full Bench believed that it was incumbent on them to refer the matter to the Full Court of the Supreme Court to resolve this question. Both the worker and WorkCover opposed the referral to the Supreme Court but ultimately the Workers Compensation Tribunal considered it necessary given the potential impact on the entire scheme if the worker’s argument is found to be correct.

It remains to be seen how the Supreme Court will view the argument put forward by the worker but it would be anticipated that at the forefront of everyone’s mind will be the effect on every other case in the jurisdiction, no small consideration given the significant sums of money involved across the scheme.

FARNDEN v WORKCOVER (LUTURN PTY LTD) [2012] SAWCT 11

CONTRACTOR GETS INTO HOT WATER – WHEN AN INJURED WORKER CAN SUE

admin — Thu, 29 Mar 2012 01:25:17 +0000

CONTRACTOR GETS INTO HOT WATER – WHEN AN INJURED WORKER CAN SUE is a post from: Lawyers Adelaide

The District Court recently determined that a 50 year old delicatessen worker was entitled to around $440,000 damages after her feet were badly scalded by a jet of hot water when a plumbing fitting failed. In South Australia an injured worker is not permitted to sue their employer for negligence, however she sued the contractor who supplied the plumbing components involved. The Court decided that the contractor was negligent in either not supplying the right fitting or in not properly inspecting and maintaining the connection.

The Court accepted that dangerous environments can be easy to identify with hindsight, but that in this case the potential for the plumbing set up to cause a scalding injury to someone walking close to it was clear. It was held that the contractor owed a duty to exercise reasonable care to ensure that the equipment it supplied and maintained was safe for all reasonably foreseeable uses, and that such a duty was owed to anyone whom it should have foreseen might be harmed. Just how far a supplier of equipment can be liable for harm caused by ordinary wear and tear did not have to be considered, since the contractor also performed monthly inspections and maintenance of the fitting and so should have been aware of any wear and tear that might cause it to become dangerous.

Many people who have a workers compensation claim as a result of an injury at work are not aware that when a third party has been negligent (such as the contractor in this case) they might have a separate claim for damages against that third party. Also, because of the limitations that apply to compensation payable under a WorkCover claim, it is very often the case that the compensation (or damages) payable by a negligent third party are significantly greater than workers compensation benefits. To find out more about product liability claims, workers compensation claims and claims against a negligent third party arrange an obligation free consultation with an experienced personal injury lawyer. Websters Lawyers have specialist injury lawyers in Adelaide and the North East who can provide you with the right advice about whether you have a potential claim against a third party regardless of whether you have an accepted workers compensation claim.

FERENCZFY v JOHNSONDIVERSEY AUSTRALIA PTY LTD [2012] SADC 22

HOW DO I REVOKE A WILL?

admin — Tue, 27 Mar 2012 05:56:55 +0000

HOW DO I REVOKE A WILL? is a post from: Lawyers Adelaide

Make sure the legal formalities are followed when you make any change to your legal will or uncertainty and unnecessary expense can result. Recently the Supreme Court was faced with a situation in which a legal will had been made and was held by solicitors, but the client later wrote to them saying that she had made a new will and the one they were holding was cancelled.

The problem was, despite exhaustive enquiries and searching no-one could find any record of another will. For a will to be revoked in this way the document must be witnessed just the same as the will, and as that was not the case the Court had to be satisfied by evidence that the note the lawyers received was genuine and proved that the deceased had revoked the earlier will. The Court concluded that this was the case, which meant that there was no will at all!

The ways in which a will can be revoked are:

1. By marriage or termination of marriage;

2. Making another will that is executed in the manner set out by the Wills Act;

3. By a written declaration of an intention to revoke the will that is executed in the same manner as a will is required to be executed;

4. Destroying the will by the person who made it, or by some other person at their direction and in their presence.

Don’t leave any doubt about your intentions. Whether you want to make a will, change a will or revoke a will, it is important to get assistance from an qualified professional. Experienced wills and estates lawyer at Websters Lawyers in Adelaide can help you to make sure your intentions are set out clearly and legally. Websters Lawyers can also assist executors responsible for administering an estate, or advise on inheritance claims for those not adequately provided for in a will. We also offer a wills storage facility to ensure that your will is not lost, damaged or misplaced.

DEBONDT v MARSHALL & ANOR [2012] SASC 40

I’M GUILTY ANYWAY – DO I NEED A LAWYER TO REPRESENT ME IN COURT?

admin — Tue, 27 Mar 2012 05:10:17 +0000

I’M GUILTY ANYWAY – DO I NEED A LAWYER TO REPRESENT ME IN COURT? is a post from: Lawyers Adelaide

A 17 year old with no previous convictions was sentenced to detention for seven days for driving after his license had been suspended as a result of his having not paid a fine for parking on a yellow line! That penalty was appealed to the Supreme Court which found that the youth should never have been charged with the offence that the police were relying upon. The Court noted that a person who drives when their licence is suspended for non-payment of fines cannot be imprisoned.

The youth did not have a lawyer representing him when he pleaded guilty. The Supreme Court said that the Judge who sentenced him did not appear to have provided the youth with required information about his right to have legal representation and that if this had occurred the error in the charge might have been identified.

This is a good example of why it is important to get legal advice and the assistance of a lawyer even when you assume that the charge is correct. In this case, neither the police nor the Court realised that the youth was charged with the wrong offence! If you are charged with any type of offence, whether it is a criminal charge or a traffic case, before making any decision about what to do you need legal advice from an experienced criminal lawyer. Websters Lawyers in Adelaide have solicitors who are specialist traffic lawyers and criminal lawyers including former prosecutors who can provide you with the best legal advice for your situation and can represent you if you have to go to Court.

M, PA v POLICE [2012] SASCFC 24

CCTV FOOTAGE – DON’T ASSUME POLICE WILL OBTAIN ALL THE EVIDENCE

Samuel — Wed, 14 Dec 2011 06:14:18 +0000

CCTV FOOTAGE – DON’T ASSUME POLICE WILL OBTAIN ALL THE EVIDENCE is a post from: Lawyers Adelaide

Hundreds of closed circuit television cameras are dotted throughout the Adelaide CBD capturing the day to day activities of thousands of individuals. Nightclub owners have even been ordered to install a CCTV network before approval is given for a liquor licence. (If you ask Police Security Services how many cameras are operating that they monitor you won’t get that information.) With all these resources available, it is very common nowadays to potentially have video footage of an incident that has formed the basis for a criminal charge.

So you might think that where a person charged with an offence claims that such video evidence will prove their innocence, police will take reasonable steps to secure and review that footage. Nevertheless, the Supreme Court has previously noted that, “a complete and unexceptionable investigation of an alleged crime is not a necessary element of a fair trial.”

Recently a person charged with offences including Disorderly Behaviour and Resisting Police ascertained that a security camera on a nearby Bank SA branch would likely have captured some of the events. The Bank informed him that they would only release the footage if requested by police, and so he wrote to police requesting that they do so. It was not for nearly three months, after a Magistrate had told the police that they should comply with the request, that a letter was sent by police to the Bank security. In response the Bank advised that they could not comply because such footage was only retained for a maximum of 90 days which time had elapsed.

While there were a number of factors to consider, the Supreme Court noted that even if the police were partially responsible for the loss of the CCTV footage, the charges should not be dismissed or stayed. Despite the fact the Court stated that once the defendant’s letter had been received by police regarding the CCTV footage it was incumbent on prosecution neither to take steps to seek to obtain the footage or alternatively to inform him that it was not the prosecution’s responsibility to do so, the fact that the footage was by that time already likely to have been overwritten had to be considered.

This case shows how important it can be for a person charged with a criminal offence to undertake their own enquiries as soon as possible. In many cases it will be months after police speak with a suspect that charges are laid and by then it might be too late to obtain evidence such as CCTV footage. That is why Websters Lawyers recommend early action is taken even if it is uncertain whether charges will be laid, and engage experienced private investigators to undertake enquiries where necessary.

Police v McLeod [2011] SASC 160 and Police v McLeod (No 2) [2011] SASC 204.