Websters Lawyers Adelaide, SA https://websterslawyers.com.au Website by Elemento! Fri, 29 Nov 2019 00:09:56 +0000 en-US hourly 1 https://wordpress.org/?v=5.2.3 Are you planning a getaway this holiday season? https://websterslawyers.com.au/news/are-you-planning-a-getaway-this-holiday-season/ Thu, 28 Nov 2019 23:58:31 +0000 https://websterslawyers.com.au/?p=4228 Click to Call Testimonials Find an Expert Are you planning a getaway this holiday season? Whilst you are busy preparing your itinerary, travel insurance and packing for your holiday it is important not to forget about your Will and Power of Attorney.  The chances are that you will return relaxed and rejuvenated from your trip however…

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Are you planning a getaway this holiday season?

Whilst you are busy preparing your itinerary, travel insurance and packing for your holiday it is important not to forget about your Will and Power of Attorney.  The chances are that you will return relaxed and rejuvenated from your trip however have you considered what would happen to your assets if something were to happen while you are away?

travel, tourism, trip, excursion, tour

Unfortunately accidents can and do happen. People are travelling more frequently and becoming adventurous with their travels, which is enjoyable but there is the chance that something may go wrong. Whether you are heading off for a road trip or on an extended vacation it is essential that you take the time to consider your loved ones whom you want to protect. By creating or updating your will with Websters Lawyers you can relax and enjoy your holiday with the peace of mind that your Estate will be left to the people you care for and whom you wish to provide.

What if you simply need to have someone look after your financial affairs while you’re out of the country?  A Power of Attorney allows you to appoint someone to deal with your legal and financial affairs including your money, property and investments.

If you already have a Will or Power of Attorney, then this may be an opportunity for them to be reviewed. It is recommended that you review your Will every 5-7 years, if there is a major life event, or significant asset changes. Some reasons you should change your Will are:

  • An Executor has died or is unable to act
  • You have married, divorced or entered into a domestic relationship
  • You have had children or have new members of the family to be included such as step-children
  • You have changed your mind about how you want your assets distributed or have disposed of an asset that was specified for a beneficiary
  • A beneficiary has died

Whether you are about to take a holiday or not, it is crucial that you have a Will. Due to the complexities of families we recommend you meet with a solicitor as they will be able to assist you with what to include in your Will to best ensure your wishes are reflected and most importantly that your loved ones are protected. Contact us to speak with a lawyer today.

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LOCAL LAWYERS FOR LOCAL NEEDS

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Testimonials

Having such a short time frame I was very impressed with the outcome made by [my solicitor]. Excellent and timely manner

Sebastian

Kurralta Park

Very professional mannerism and overall great outcome was delivered by Websters Lawyers.

Nicholas

West Ryde NSW

Helpful, explained fully, patient, excellent service.

Kerry

Ridgehaven

Patient and helpful in explaining the process.

Brian

Ridgehaven

Call Websters Lawyers for a most professional and friendly service. All understanding with [my solicitors] and the reception staff. Thank you so much.

Christine

Magill

Making my will was effortless on my part, with everything explained clearly. Well done to all.

Christina

Highbury

Great service, professional, explains things clearly, definitely recommend Websters Lawyers.

Garth

Upper Hermitage

Patient, professional, good communication about procedures and probable outcomes.

Jeffrey

Brompton

Thank you for all your work over the course of the case. You [both] were always very approachable and I appreciated your understanding and professionalism in all areas.

Alexis

Christie Downs

All in all my experience was great. Thank you for your time and expertise.

Christina

Seacombe Gardens

My matter was dealt with efficiently and was explained in an understandable language. A pleasant experience.

Mary

Ridgehaven

Practical and very helpful. Reasons and explanations given where needed

John

Ridgehaven

I stumbled across Websters in the Yellow Pages and I rang, explained my situation and immediately they took my case on. Greatly appreciate their services.

Diane 

Ridgehaven

The service from Websters Lawyers was outstanding. [My solicitor] was caring, had patience and was very professional. Wonderful personality.

Julie

Yorketown

[My solicitor] made everything so simple to understand. [The receptionist] was wicked too, would recommend them anytime. Level of entire service was outstanding.

Craig

Golden Grove

 

I had dealings with Websters over 20 years ago. They were my first choice when I recently needed legal advice. Both legal and office staff were professional, courteous and accessible at all times. Everything was explained up front in a clear and concise manner. I would not hesitate to recommend their services.

Rod

Dernancourt

It has truly been a pleasure communicating with you throughout the process. I really appreciate your patient and speedy replies to my questions and requests. You were always able to provide an easily understood response and this helped me deal with the process. Your friendly and positive manner encouraged me to seek your advice.

Kathleen

Battery Hill QLD

[My lawyer's] service was prompt and efficient with all questions explained clearly with all our requests carried out within the laws. Overall service was very satisfactory.

John

Wynn Vale

[My lawyer] was excellent. 

Gordon

Glengowrie

Excellent service. Professional. Clear advice and instructions. Prompt actions. Overall 10/10!

Phillip

Ingle Farm

Overall, I was happy with my outcome and my lawyer, would definitely recommend [my lawyer].

Janet

Adelaide

[My solicitor] was excellent at helping us through preparing our wills which were particularly challenging as they involved assets in multiple countries. She was professional and knowledgeable and spent time tailoring the wills to our needs.

Jonathan

Greenwith

[My solicitor] was very helpful, respectful and polite. She made sure I understood the process and documentation of our wills.

Rachel

Greenwith

Professional. Smooth Transaction. 

Luke

Largs North

I found the whole experience from Receptionist to Solicitor excellent. They completely put us at our ease.

Ethel

Smithfield

This was a new experience for us and didn’t have a clue what to do. [Our solicitor] on our first visit put us at ease, explained what will happen, pointed out there was a strong case. [Our solicitor] was genuine in her approach, kept us well informed, explained actions several times with patience and understanding. Overall very happy with the service we received.

Stephen

Elizabeth Vale

[My lawyer] was very reassuring in her approach to my case. I felt that every possibility in terms of evidence to provide and possible outcomes were explained to me, The result of the case was the best possible outcome I could have expected.

David, Belair

 

With no previous dealing with the criminal justice system, [our solicitor] gave us excellent advice and guided us through a nightmare to achieve a just and correct outcome. [Our lawyer] was both forthright and compassionate in her handling of our case.

Malcolm, Belair

[My lawyer] explained all the legal terms in language I could understand – she was very easy to talk to.

Cameron, Munno Para

I felt confident knowing my matter was in good hands. Very professional!

Shravan, Christie Downs

Initial phone call was fantastic and the role of an executor was fully explained.

Penny, Henley Beach

The service I received was efficient and promptly finalised. The solicitor clearly explained the details and I was happy with how easy it was.

Dale, Fairview Park

[My lawyer] was exactly the lawyer I needed in a serious matter. The outcome was as predicted which was a fantastic result. I received prompt professional and personal service at all times. Capable and supportive in a very stressful period.

Jason, Munno Para West

I had any of my concerns answered to my satisfaction and understanding.

Valda, Ingle Farm

[My lawyer] is an excellent professional lawyer who assisted in achieving a great positive outcome/result. I sincerely thank you and your great staff for your assistance and guidance throughout my claim. Would highly recommend [my lawyer], staff and Websters Lawyers. Kept fully informed and guided, professionally throughout the matter.

Rena, Northgate

Our work was dealt with very efficiently and speedily. Our lawyer was very professional, at the same time as being approachable. Communication was great.

Christina, Highbury

My experience with Websters Lawyers was far beyond what I expected. From the moment I spoke to [my lawyer] she made me feel very comfortable and eased my stress. In my case I had a court appearance the day before we were scheduled to fly to Spain, Considering my first appointment with her was only 2 weeks before the court hearing, she was able to obtain the police statement and thoroughly work on my case within that limited time frame. She was very knowledgeable, understanding and confident which greatly relieved so much pressure from me and my family. At court, she explained everything thoroughly and advised me of all the possible outcomes. Price, service and result, very highly recommended. Thank you Websters Lawyers.

Rafael, Davoren Park

I have high expectations and they were met. Websters service was swift, courteous, professional and met the agreed budget. I will recommend Websters to my family, friends and colleagues. Thank you.

Peter, Forestville

I would recommend Websters Lawyers, especially for [my lawyer's] dedication and exemplary attitude and advice. She is the epitome of a good lawyer. The service was impeccable.

Pamela, West Lakes

[My lawyer] was very professional and I was made comfortable to understand.

Gregory, Penfield

I was very pleased with the end result and how well [my lawyer] conducted herself.

Sonya, Glanville

Very professional.

Jesse, Morphett Vale

[My lawyer] has been very prompt , reliable and provided a high level of communication.

Peter, Parkside

My experience at Websters was very positive. The stress was taken from me and I could not be happier with the outcome. [My lawyer] at Websters was professional, personable, available and caring. Thank you for making the experience stress free.

Magda, Holden Hill

Found my lawyer upfront and reliable – I would highly recommend Websters Lawyers.

Lee, Evanston Park

 

Top bunch of solicitors and admin staff. Very friendly and to the point service.

Bradley, Hallett Cove

Websters Lawyers were very professional in their service, I would be happy to recommend them.

Carole, Tea Tree Gully

We would not hesitate in recommending Websters for any legal matter. They are professional and courteous at all times and call back when they say they will.

David and Dianne, Lockleys

 

I fully recommend Websters Lawyers. This was the 3rd time myself & my family have used Websters Lawyers. In these stressful times we have found them to answer and guide us through the process needed to accomplish the legal requirements in a timely and courteous manner.

Dianne, Lynton

Solid, to the point, no hustle. Highly recommend.

George, Windsor Gardens

Contact us

Adelaide Office :
T: ( 08 ) 8231 1363
F: ( 08 ) 8231 5529

Ridgehaven Office :
T: ( 08 ) 8395 8000
F: ( 08 ) 8395 8222

Smithfield Office :
T: ( 08 ) 8487 0150
F: ( 08 ) 8395 8222

© Copyright WebstersLawyers.com 2017 All Rights Reserved
Website By A to Z Marketing

The post Are you planning a getaway this holiday season? appeared first on Websters Lawyers Adelaide, SA.

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Tribunal upholds overweight worker’s claim for $18,000 weight loss surgery cost https://websterslawyers.com.au/news/tribunal-upholds-overweight-workers-claim-for-18000-weight-loss-surgery-cost/ Wed, 27 Nov 2019 21:12:26 +0000 https://websterslawyers.com.au/?p=4223 Click to Call Testimonials Find an Expert Tribunal upholds overweight worker’s claim for $18,000 weight loss surgery cost An injured worker who claimed the cost of gastric bypass surgery to enable her to lose weight so as to alleviate the pressure on her knee which was injured after a fall at work has successfully defended an…

The post Tribunal upholds overweight worker’s claim for $18,000 weight loss surgery cost appeared first on Websters Lawyers Adelaide, SA.

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Tribunal upholds overweight worker’s claim for $18,000 weight loss surgery cost

An injured worker who claimed the cost of gastric bypass surgery to enable her to lose weight so as to alleviate the pressure on her knee which was injured after a fall at work has successfully defended an appeal against the award of compensation for the $18,000 procedure.

The workers compensation insurer had refused to pay for the surgery on the basis that the costs were not reasonably incurred in consequence of a work injury.

Workers Compensation

Reason for weight loss surgery

The woman’s case was that she knew her weight was putting pressure on her knees and losing weight would improve the beneficial effects of knee surgery  The insurer argued that she had a ‘constitutional and lifestyle propensity to obesity’ and that the weight loss surgery was to address her lifestyle issues and not to alleviate problems with her knee injuries.

The South Australian Employment Tribunal had held that it was reasonable for the woman to have undergone the bypass surgery as diet and an exercise programme would not solve her weight problem, so the procedure was the most reasonable option having regard to the amount of weight that she needed to lose to reduce pressure on her knees.  The workers compensation insurer appealed that decision.

In arguing whether or not the bypass surgery was ‘in consequence’ of the woman’s work injury a lot of emphasis was put on the outcome of the procedure.  Although the woman’s treating orthopaedic surgeon had told her that losing weight might avoid the need for surgery altogether, as it turned out she still had to undergo surgery for her knees.  According to the insurer that showed there was no connection between the bypass surgery and her work injury.  On the other hand the woman said that she had benefitted from the weight loss as her symptoms had reduced and her recovery from knee surgery was better.

A common sense approach

The SA Employment Tribunal made the point that whether or not a particular treatment or procedure is effective isn’t relevant to the question of whether the cost was incurred ‘in consequence of having suffered a work injury’.  The test simply involves a ‘common sense evaluation of the connection between the incurring of the claimed expenses’ and the work injury.  In this case the worker’s said that she needed to lose weight to relieve the pressure on her injured knees, and a surgeon gave evidence that diet and exercise was not a plausible option because she needed to lose 50 kg and she was unable to exercise because of the injury.  An orthopaedic surgeon testified that weight reduction reduces the rate of complications and assists rehabilitation following knee surgery.  For all these reasons the gastric by-pass surgery was not only reasonable, but also ‘in consequence’ of the work injury.

As this case shows, it’s not always obvious or straightforward whether a treatment option will be covered by workers compensation when its connection to the work injury isn’t clear.  Anyone who has suffered an injury at work should obtain advice from a workers compensation expert to ensure that they are aware of all of their entitlements.  Websters Lawyers offer a free initial consultation which can be arranged by calling 8231 1363 or requesting a call through our contact page.

Chief Executive, Department of Premier and Cabinet v Schmidt [2019] SAET 219

FREE FIRST INTERVIEW

NO WIN NO FEE

LOCAL LAWYERS FOR LOCAL NEEDS

GET THE RIGHT LAWYER FIRST

call now

Testimonials

Having such a short time frame I was very impressed with the outcome made by [my solicitor]. Excellent and timely manner

Sebastian

Kurralta Park

Very professional mannerism and overall great outcome was delivered by Websters Lawyers.

Nicholas

West Ryde NSW

Helpful, explained fully, patient, excellent service.

Kerry

Ridgehaven

Patient and helpful in explaining the process.

Brian

Ridgehaven

Call Websters Lawyers for a most professional and friendly service. All understanding with [my solicitors] and the reception staff. Thank you so much.

Christine

Magill

Making my will was effortless on my part, with everything explained clearly. Well done to all.

Christina

Highbury

Great service, professional, explains things clearly, definitely recommend Websters Lawyers.

Garth

Upper Hermitage

Patient, professional, good communication about procedures and probable outcomes.

Jeffrey

Brompton

Thank you for all your work over the course of the case. You [both] were always very approachable and I appreciated your understanding and professionalism in all areas.

Alexis

Christie Downs

All in all my experience was great. Thank you for your time and expertise.

Christina

Seacombe Gardens

My matter was dealt with efficiently and was explained in an understandable language. A pleasant experience.

Mary

Ridgehaven

Practical and very helpful. Reasons and explanations given where needed

John

Ridgehaven

I stumbled across Websters in the Yellow Pages and I rang, explained my situation and immediately they took my case on. Greatly appreciate their services.

Diane 

Ridgehaven

The service from Websters Lawyers was outstanding. [My solicitor] was caring, had patience and was very professional. Wonderful personality.

Julie

Yorketown

[My solicitor] made everything so simple to understand. [The receptionist] was wicked too, would recommend them anytime. Level of entire service was outstanding.

Craig

Golden Grove

 

I had dealings with Websters over 20 years ago. They were my first choice when I recently needed legal advice. Both legal and office staff were professional, courteous and accessible at all times. Everything was explained up front in a clear and concise manner. I would not hesitate to recommend their services.

Rod

Dernancourt

It has truly been a pleasure communicating with you throughout the process. I really appreciate your patient and speedy replies to my questions and requests. You were always able to provide an easily understood response and this helped me deal with the process. Your friendly and positive manner encouraged me to seek your advice.

Kathleen

Battery Hill QLD

[My lawyer's] service was prompt and efficient with all questions explained clearly with all our requests carried out within the laws. Overall service was very satisfactory.

John

Wynn Vale

[My lawyer] was excellent. 

Gordon

Glengowrie

Excellent service. Professional. Clear advice and instructions. Prompt actions. Overall 10/10!

Phillip

Ingle Farm

Overall, I was happy with my outcome and my lawyer, would definitely recommend [my lawyer].

Janet

Adelaide

[My solicitor] was excellent at helping us through preparing our wills which were particularly challenging as they involved assets in multiple countries. She was professional and knowledgeable and spent time tailoring the wills to our needs.

Jonathan

Greenwith

[My solicitor] was very helpful, respectful and polite. She made sure I understood the process and documentation of our wills.

Rachel

Greenwith

Professional. Smooth Transaction. 

Luke

Largs North

I found the whole experience from Receptionist to Solicitor excellent. They completely put us at our ease.

Ethel

Smithfield

This was a new experience for us and didn’t have a clue what to do. [Our solicitor] on our first visit put us at ease, explained what will happen, pointed out there was a strong case. [Our solicitor] was genuine in her approach, kept us well informed, explained actions several times with patience and understanding. Overall very happy with the service we received.

Stephen

Elizabeth Vale

[My lawyer] was very reassuring in her approach to my case. I felt that every possibility in terms of evidence to provide and possible outcomes were explained to me, The result of the case was the best possible outcome I could have expected.

David, Belair

 

With no previous dealing with the criminal justice system, [our solicitor] gave us excellent advice and guided us through a nightmare to achieve a just and correct outcome. [Our lawyer] was both forthright and compassionate in her handling of our case.

Malcolm, Belair

[My lawyer] explained all the legal terms in language I could understand – she was very easy to talk to.

Cameron, Munno Para

I felt confident knowing my matter was in good hands. Very professional!

Shravan, Christie Downs

Initial phone call was fantastic and the role of an executor was fully explained.

Penny, Henley Beach

The service I received was efficient and promptly finalised. The solicitor clearly explained the details and I was happy with how easy it was.

Dale, Fairview Park

[My lawyer] was exactly the lawyer I needed in a serious matter. The outcome was as predicted which was a fantastic result. I received prompt professional and personal service at all times. Capable and supportive in a very stressful period.

Jason, Munno Para West

I had any of my concerns answered to my satisfaction and understanding.

Valda, Ingle Farm

[My lawyer] is an excellent professional lawyer who assisted in achieving a great positive outcome/result. I sincerely thank you and your great staff for your assistance and guidance throughout my claim. Would highly recommend [my lawyer], staff and Websters Lawyers. Kept fully informed and guided, professionally throughout the matter.

Rena, Northgate

Our work was dealt with very efficiently and speedily. Our lawyer was very professional, at the same time as being approachable. Communication was great.

Christina, Highbury

My experience with Websters Lawyers was far beyond what I expected. From the moment I spoke to [my lawyer] she made me feel very comfortable and eased my stress. In my case I had a court appearance the day before we were scheduled to fly to Spain, Considering my first appointment with her was only 2 weeks before the court hearing, she was able to obtain the police statement and thoroughly work on my case within that limited time frame. She was very knowledgeable, understanding and confident which greatly relieved so much pressure from me and my family. At court, she explained everything thoroughly and advised me of all the possible outcomes. Price, service and result, very highly recommended. Thank you Websters Lawyers.

Rafael, Davoren Park

I have high expectations and they were met. Websters service was swift, courteous, professional and met the agreed budget. I will recommend Websters to my family, friends and colleagues. Thank you.

Peter, Forestville

I would recommend Websters Lawyers, especially for [my lawyer's] dedication and exemplary attitude and advice. She is the epitome of a good lawyer. The service was impeccable.

Pamela, West Lakes

[My lawyer] was very professional and I was made comfortable to understand.

Gregory, Penfield

I was very pleased with the end result and how well [my lawyer] conducted herself.

Sonya, Glanville

Very professional.

Jesse, Morphett Vale

[My lawyer] has been very prompt , reliable and provided a high level of communication.

Peter, Parkside

My experience at Websters was very positive. The stress was taken from me and I could not be happier with the outcome. [My lawyer] at Websters was professional, personable, available and caring. Thank you for making the experience stress free.

Magda, Holden Hill

Found my lawyer upfront and reliable – I would highly recommend Websters Lawyers.

Lee, Evanston Park

 

Top bunch of solicitors and admin staff. Very friendly and to the point service.

Bradley, Hallett Cove

Websters Lawyers were very professional in their service, I would be happy to recommend them.

Carole, Tea Tree Gully

We would not hesitate in recommending Websters for any legal matter. They are professional and courteous at all times and call back when they say they will.

David and Dianne, Lockleys

 

I fully recommend Websters Lawyers. This was the 3rd time myself & my family have used Websters Lawyers. In these stressful times we have found them to answer and guide us through the process needed to accomplish the legal requirements in a timely and courteous manner.

Dianne, Lynton

Solid, to the point, no hustle. Highly recommend.

George, Windsor Gardens

Contact us

Adelaide Office :
T: ( 08 ) 8231 1363
F: ( 08 ) 8231 5529

Ridgehaven Office :
T: ( 08 ) 8395 8000
F: ( 08 ) 8395 8222

Smithfield Office :
T: ( 08 ) 8487 0150
F: ( 08 ) 8395 8222

© Copyright WebstersLawyers.com 2017 All Rights Reserved
Website By A to Z Marketing

The post Tribunal upholds overweight worker’s claim for $18,000 weight loss surgery cost appeared first on Websters Lawyers Adelaide, SA.

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It wasn’t ‘accidental’ touching – $30,000 for victim of sexual harassment at work https://websterslawyers.com.au/equal-opportunity-discrimination-claims/it-wasnt-accidental-touching-30000-for-victim-of-sexual-harassment-at-work/ Wed, 20 Nov 2019 02:09:36 +0000 https://websterslawyers.com.au/?p=3945 Click to Call Testimonials Find an Expert It wasn’t ‘accidental’ touching - $30,000 for victim of sexual harassment at work A Foodland employee who suffered sexual harassment at the hands of her male co-worker has been awarded compensation against both him and the employer after the South Australian Employment Tribunal found that the physical contact…

The post It wasn’t ‘accidental’ touching – $30,000 for victim of sexual harassment at work appeared first on Websters Lawyers Adelaide, SA.

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It wasn’t ‘accidental’ touching - $30,000 for victim of sexual harassment at work

A Foodland employee who suffered sexual harassment at the hands of her male co-worker has been awarded compensation against both him and the employer after the South Australian Employment Tribunal found that the physical contact he had with her was more than the ‘accidental touching’ that he claimed.

The harassment involved inappropriate touching and comments that started shortly after the male co-worker commenced employment and culminated in an act of extremely inappropriate touching.

A male food service worker improperly touching a female colleague in a commercial kitchen.  He has his arm around her waist as she cooks at a stove. A concept on sexual harassment in the food service and restaurant industry.

The Sexual Harassment Claim

At the time, the woman was working in the ‘Juice Bar’ section of the Foodland store producing fresh juices for customers and preparing fruits and vegetables for the store café.  The male co-worker was employed as Executive Head Chef and Food & Beverage Services Manager, which included performing cooking demonstrations at a food preparation station located close to the Juice Bar.

From shortly after he started at the workplace, the co-worker began to refer to her as ‘sweetie’ or ‘darling’.  Although this made her feel uncomfortable she didn’t complain to him, other co-workers or management about it as she thought it would be regarded as too frivolous a matter to be making a formal complaint about.  She also didn’t think at the time that there was any ill-intention on his part.

After later events however, she took the view that this was in fact a form of ‘grooming’ leading up to his thinking that it was acceptable to touch her in an invasive manner, or conditioning her to accept that happening.

The co-worker on the other hand denied calling her ‘sweetie’ or ‘darling’ stating that he wouldn’t use those terms and that his standard form of address for a woman whose name he had forgotten was ‘bella’ which he viewed as being much the same as calling someone ‘mate’.  While the Tribunal found that he had addressed the woman in the manner she described, it noted that such terms are commonplace and are not sexual in nature.

It was the physical contact that was of greater concern.  The woman’s evidence was that the male co-worker would touch her as he walked by, or touch her on the shoulders or the middle of the back to get her attention or go around her.  Over time she noticed he walked past her more frequently, unnecessarily and in an increasingly invasive, aggressive and sexualised manner.  She said that he would pass her to reach a bin that was not conveniently located for his purposes.

He then began at times to put his hands on her lower back or hips as he moved past her, and on occasions he would brush the back side of his hands across her buttocks and lower back.  He would press against her unnecessarily when going past to the extent that she could feel his breath on her neck.  Even when it appeared there was room for him to pass her without contact, he would press the whole of the front of his body against her.

According to the male co-worker, the workstation was ‘like a submarine’ and staff would frequently need to get past one another in a confined space.  He denied the allegations, stating that what was alleged to have occurred either didn’t happen, or was the result of accidental contact which did not amount to sexual harassment.  However, his evidence was rejected by the Tribunal which concluded that slight accidental bumping might explain one or two incidents, but not the repeated incidents alleged by the woman.

These events culminated in a series of incidents on the one day.  That morning when she was standing at the Juice Bar and saw the co-worker coming toward her and pass behind her to use the bin.  She said that as he passed, he pushed the trunk of his body up against her with his hand squashed between her buttock and his body, and did the same thing on the way back.  About an hour later he repeated this behaviour and after he passed, she looked at him and made eye contact, seeing what she described as a ‘very sexual look on his face.’  On the same day he passed her again and in doing so slid his hand over her buttocks and down toward her vagina, pressing his body against her as before.  Because of the earlier incidents she kept her legs firmly together but was knocked off balance.  She said that she felt dirty, ashamed, upset and angry and told a nearby colleague that ‘the chef just touched my arse’ but the response was to the effect that ‘chefs had a tendency to act in such a way.’

A report was also made to the Assistant Store Manager who viewed security footage of the location with the HR Manager.  According to the Tribunal however, neither man treated the complaint seriously, nor took any statement from the woman or recorded what she said.  It concluded that they didn’t spend much time looking at the CCTV footage or carefully examining it which was destroyed shortly after.  Although the location of the camera wasn’t ideal, their evidence was that it showed one instance of contact between the two, when the man shuffled past the woman with his hands raised.  The Tribunal said that the ‘careless approach to the complaint and the viewing of the footage is an important element with respect to’ the employer’s liability.

The two continued to work near to each other although the woman stopped talking to or acknowledging the man, avoiding giving him any further chance to touch her.  Some six weeks later when she refused to prepare a juice for him, the male co-worker complained about her to management.  She then asked what had been done about her complaint and was told that the security footage didn’t show anything inappropriate so no further action had been taken.  She was then told that they would speak to the man and was later informed that he had said he wasn’t aware of what she had alleged but had offered to apologise.

The co-worker and the employer both suggested that the woman had fabricated her complaint at a later time for reasons related to her employment situation.  Nevertheless, the Tribunal found that the man had pressed his body against the woman and that by doing so he engaged in conduct that was sexual in nature and was extremely unwelcome.

Liability of the Employer

Vicarious liability in a case such as this refers to a ‘secondary liability’ that the employer has for the wrongful actions or omissions of its employees because it has the ‘right, ability or duty to control’ what the employee does while at work.

Under the Equal Opportunity Act it is presumed that the employer is vicariously liable for a discriminatory or unlawful act of an employee (who was acting in the course of their employment) unless it can be shown that the employer had taken reasonable and sufficient steps to prevent the harassment.

Here, the employer claimed that it was not liable for what had occurred in the workplace as it had in place an appropriate policy to prevent sexual harassment which it took reasonable steps to implement and enforce.

The Tribunal concluded however that although the employer had in place a policy for the prevention and reporting of sexual harassment in the workplace and the man was aware of and understood that policy, the action taken in relation to the woman’s complaint was inadequate.  No formal investigation was undertaken, the woman was not asked to provide a statement, witnesses weren’t interviewed at the time, no steps were taken to preserve the CCTV footage and the matter wasn’t escalated to senior management.  The failure to properly investigate the claims formed the basis to find the employer vicariously liable.

Compensation for Sexual Harassment

The woman had suffered from a psychological disorder as a consequence of the harassment which caused her to suffer economic loss.

She experienced difficulty sleeping and eating resulting in the loss of a significant amount of weight, and suffered from nightmares.  University studies she was undertaking began to suffer.  She continued to suffer from fear and anxiety and was diagnosed with an Adjustment Disorder with Depressed and Anxious Mood.  The failure by the employer to undertake a proper, timely and adequate investigation exacerbated her condition.  The woman made a workers compensation claim through which she was compensated for some of her medical expenses and lost earnings.

The Tribunal noted that while this was not the most serious kind of sexual harassment and didn’t occur over a long period of time, nevertheless the woman was entitled to compensation.  The woman was awarded $30,000.00 for general damages including the psychological harm, suffering and hurt feelings.

As the Tribunal observed, “Sexual harassment has many degrees of seriousness.  Anything from a few brief words to rape can meet the definition of sexual harassment under the South Australian Equal Opportunity Act.”  Any person who has been subjected to sexual harassment, in the workplace or elsewhere, can obtain immediate assistance by contacting a specialist discrimination lawyer at Websters Lawyers by calling 8231 1363 or requesting a call through our contact page.

Evans v Ikkos Holdings Pty Ltd and Ythos Holdings Pty Ltd and Ikia Holdings Pty Ltd T/As Foodland and Crugnale [2019] SAET 222 (7 November 2019)

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Having such a short time frame I was very impressed with the outcome made by [my solicitor]. Excellent and timely manner

Sebastian

Kurralta Park

Very professional mannerism and overall great outcome was delivered by Websters Lawyers.

Nicholas

West Ryde NSW

Helpful, explained fully, patient, excellent service.

Kerry

Ridgehaven

Patient and helpful in explaining the process.

Brian

Ridgehaven

Call Websters Lawyers for a most professional and friendly service. All understanding with [my solicitors] and the reception staff. Thank you so much.

Christine

Magill

Making my will was effortless on my part, with everything explained clearly. Well done to all.

Christina

Highbury

Great service, professional, explains things clearly, definitely recommend Websters Lawyers.

Garth

Upper Hermitage

Patient, professional, good communication about procedures and probable outcomes.

Jeffrey

Brompton

Thank you for all your work over the course of the case. You [both] were always very approachable and I appreciated your understanding and professionalism in all areas.

Alexis

Christie Downs

All in all my experience was great. Thank you for your time and expertise.

Christina

Seacombe Gardens

My matter was dealt with efficiently and was explained in an understandable language. A pleasant experience.

Mary

Ridgehaven

Practical and very helpful. Reasons and explanations given where needed

John

Ridgehaven

I stumbled across Websters in the Yellow Pages and I rang, explained my situation and immediately they took my case on. Greatly appreciate their services.

Diane 

Ridgehaven

The service from Websters Lawyers was outstanding. [My solicitor] was caring, had patience and was very professional. Wonderful personality.

Julie

Yorketown

[My solicitor] made everything so simple to understand. [The receptionist] was wicked too, would recommend them anytime. Level of entire service was outstanding.

Craig

Golden Grove

 

I had dealings with Websters over 20 years ago. They were my first choice when I recently needed legal advice. Both legal and office staff were professional, courteous and accessible at all times. Everything was explained up front in a clear and concise manner. I would not hesitate to recommend their services.

Rod

Dernancourt

It has truly been a pleasure communicating with you throughout the process. I really appreciate your patient and speedy replies to my questions and requests. You were always able to provide an easily understood response and this helped me deal with the process. Your friendly and positive manner encouraged me to seek your advice.

Kathleen

Battery Hill QLD

[My lawyer's] service was prompt and efficient with all questions explained clearly with all our requests carried out within the laws. Overall service was very satisfactory.

John

Wynn Vale

[My lawyer] was excellent. 

Gordon

Glengowrie

Excellent service. Professional. Clear advice and instructions. Prompt actions. Overall 10/10!

Phillip

Ingle Farm

Overall, I was happy with my outcome and my lawyer, would definitely recommend [my lawyer].

Janet

Adelaide

[My solicitor] was excellent at helping us through preparing our wills which were particularly challenging as they involved assets in multiple countries. She was professional and knowledgeable and spent time tailoring the wills to our needs.

Jonathan

Greenwith

[My solicitor] was very helpful, respectful and polite. She made sure I understood the process and documentation of our wills.

Rachel

Greenwith

Professional. Smooth Transaction. 

Luke

Largs North

I found the whole experience from Receptionist to Solicitor excellent. They completely put us at our ease.

Ethel

Smithfield

This was a new experience for us and didn’t have a clue what to do. [Our solicitor] on our first visit put us at ease, explained what will happen, pointed out there was a strong case. [Our solicitor] was genuine in her approach, kept us well informed, explained actions several times with patience and understanding. Overall very happy with the service we received.

Stephen

Elizabeth Vale

[My lawyer] was very reassuring in her approach to my case. I felt that every possibility in terms of evidence to provide and possible outcomes were explained to me, The result of the case was the best possible outcome I could have expected.

David, Belair

 

With no previous dealing with the criminal justice system, [our solicitor] gave us excellent advice and guided us through a nightmare to achieve a just and correct outcome. [Our lawyer] was both forthright and compassionate in her handling of our case.

Malcolm, Belair

[My lawyer] explained all the legal terms in language I could understand – she was very easy to talk to.

Cameron, Munno Para

I felt confident knowing my matter was in good hands. Very professional!

Shravan, Christie Downs

Initial phone call was fantastic and the role of an executor was fully explained.

Penny, Henley Beach

The service I received was efficient and promptly finalised. The solicitor clearly explained the details and I was happy with how easy it was.

Dale, Fairview Park

[My lawyer] was exactly the lawyer I needed in a serious matter. The outcome was as predicted which was a fantastic result. I received prompt professional and personal service at all times. Capable and supportive in a very stressful period.

Jason, Munno Para West

I had any of my concerns answered to my satisfaction and understanding.

Valda, Ingle Farm

[My lawyer] is an excellent professional lawyer who assisted in achieving a great positive outcome/result. I sincerely thank you and your great staff for your assistance and guidance throughout my claim. Would highly recommend [my lawyer], staff and Websters Lawyers. Kept fully informed and guided, professionally throughout the matter.

Rena, Northgate

Our work was dealt with very efficiently and speedily. Our lawyer was very professional, at the same time as being approachable. Communication was great.

Christina, Highbury

My experience with Websters Lawyers was far beyond what I expected. From the moment I spoke to [my lawyer] she made me feel very comfortable and eased my stress. In my case I had a court appearance the day before we were scheduled to fly to Spain, Considering my first appointment with her was only 2 weeks before the court hearing, she was able to obtain the police statement and thoroughly work on my case within that limited time frame. She was very knowledgeable, understanding and confident which greatly relieved so much pressure from me and my family. At court, she explained everything thoroughly and advised me of all the possible outcomes. Price, service and result, very highly recommended. Thank you Websters Lawyers.

Rafael, Davoren Park

I have high expectations and they were met. Websters service was swift, courteous, professional and met the agreed budget. I will recommend Websters to my family, friends and colleagues. Thank you.

Peter, Forestville

I would recommend Websters Lawyers, especially for [my lawyer's] dedication and exemplary attitude and advice. She is the epitome of a good lawyer. The service was impeccable.

Pamela, West Lakes

[My lawyer] was very professional and I was made comfortable to understand.

Gregory, Penfield

I was very pleased with the end result and how well [my lawyer] conducted herself.

Sonya, Glanville

Very professional.

Jesse, Morphett Vale

[My lawyer] has been very prompt , reliable and provided a high level of communication.

Peter, Parkside

My experience at Websters was very positive. The stress was taken from me and I could not be happier with the outcome. [My lawyer] at Websters was professional, personable, available and caring. Thank you for making the experience stress free.

Magda, Holden Hill

Found my lawyer upfront and reliable – I would highly recommend Websters Lawyers.

Lee, Evanston Park

 

Top bunch of solicitors and admin staff. Very friendly and to the point service.

Bradley, Hallett Cove

Websters Lawyers were very professional in their service, I would be happy to recommend them.

Carole, Tea Tree Gully

We would not hesitate in recommending Websters for any legal matter. They are professional and courteous at all times and call back when they say they will.

David and Dianne, Lockleys

 

I fully recommend Websters Lawyers. This was the 3rd time myself & my family have used Websters Lawyers. In these stressful times we have found them to answer and guide us through the process needed to accomplish the legal requirements in a timely and courteous manner.

Dianne, Lynton

Solid, to the point, no hustle. Highly recommend.

George, Windsor Gardens

Contact us

Adelaide Office :
T: ( 08 ) 8231 1363
F: ( 08 ) 8231 5529

Ridgehaven Office :
T: ( 08 ) 8395 8000
F: ( 08 ) 8395 8222

Smithfield Office :
T: ( 08 ) 8487 0150
F: ( 08 ) 8395 8222

© Copyright WebstersLawyers.com 2017 All Rights Reserved
Website By A to Z Marketing

The post It wasn’t ‘accidental’ touching – $30,000 for victim of sexual harassment at work appeared first on Websters Lawyers Adelaide, SA.

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Police assault victim still entitled to receive over $135,000 https://websterslawyers.com.au/police-misconduct/police-assault-victim-still-entitled-to-receive-over-135000/ Fri, 15 Nov 2019 01:23:31 +0000 https://websterslawyers.com.au/?p=3939 Click to Call Testimonials Find an Expert Police Assault Victim Still Entitled To Receive Over $135,000 The Supreme Court has upheld an award of damages of over $135,000 to a man who successfully sued after he was the victim of assault, battery and unlawful imprisonment by SA Police.  The Court found that the action by…

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Police Assault Victim Still Entitled To Receive Over $135,000

The Supreme Court has upheld an award of damages of over $135,000 to a man who successfully sued after he was the victim of assault, battery and unlawful imprisonment by SA Police.  The Court found that the action by police constituted a ‘grave and frightening abuse of their powers of entry, search and detention’ after the man, who hadn’t committed any offence, was threatened with violence if he didn’t come out of his house.

Police Arresting drugs dealer

The Trial

In an earlier trial in the District Court the Court heard how armed members of the police STAR Group went to the man’s home intending to arrest his brother.  They had received information that the brother was at the house and might have had access to a firearm and had indicated he was willing to ‘shoot it out’ with police.  When they arrived, the brother ran out the back door and was quickly arrested.  What followed formed the basis for the man’s claim.

The police called out, “Will the tenant of 36 come out with your hands on your head, or we’ll throw a percussion grenade, a stun grenade, we’ll throw that in and we’ll drag you f*cking out.”  In view of the threats the man was reluctant to go outside and replied, “You can come in,” but the police told him that he would be dragged out if he didn’t immediately come out walking backwards with his hands on his head.

The man complied but when he didn’t get down onto the ground when told to do so by the police, one of the officers ran up behind him and swept his legs out from underneath him, forcing him to the ground.  There was a struggle and the man was restrained and held at the location for 20 or 30 minutes while police searched the house.

The Court had found that the actions of police in directing the man to leave the house were unlawful and that the police had no lawful authority to search the man’s property or to remain on there.  The force used by the police to restrain the man was also not authorised and certainly not reasonable.

The man was awarded over $135,000 in damages.

Exemplary Damages

In cases against the police, as with other State Government institutions, the claim is actually made against the State of South Australia.  Although the man’s original claim was defended by the State, the appeal was not against the finding of liability against the police, but concerned one specific area of damages that was awarded.  A claim for personal injury will involve different ‘heads’ of damage, or different grounds on which compensation is claimed such as pain and suffering, loss of income and future medical expenses.  In this case the Court awarded an amount of $35,000 for what is called ‘exemplary damages’.  Exemplary damages can be given when the conduct involved is so bad that the usual compensation would not sufficiently express the Court’s disapproval of how the wrongdoer behaved.  As the Court in this case noted, “Exemplary damages may be awarded for any tort that is committed in circumstances involving a deliberate, intentional or reckless disregard of a plaintiff’s interests.”

The Judge who heard the trial found that the assault, battery and wrongful detention of the man was ‘high handed and showed a contemptuous disregard” for his rights, and ruled that there needed to be an amount awarded to ‘punish and deter’ and to bring home to the police officers involved along with their superiors that police need to be trained and disciplined so that such abuses doesn’t happen.

Appeal Dismissed

In dismissing the State’s appeal against this finding the Supreme Court noted the exemplary damages will be awarded when the defendant’s conduct (in this case the police) was of such a character that it merits punishment.  That is, conduct that is ‘wanton, fraudulent, malicious, violent, cruel, insolent, high-handed or an abuse of power’.  The Courts award exemplary damages to make it clear that it will not tolerate the outrageous use of power or unconstitutional action by servants of the government.  They also serve the purpose of deterring any repetition of the conduct in question.  In this case it was clear that exemplary damages were awarded because the assaults committed by the police occurred in the course of conduct that was, “a grave and frightening abuse of their powers of entry, search and detention,” and the man had done nothing at all to warrant the aggressive and high-handed approach of the police officers.

When the wrongful conduct of police that gives rise to a claim is due to ordinary human fallibility, a person who has suffered loss as a result will still be entitled to damages but not to an additional award of exemplary damages.  Nevertheless, as this and other cases show, there remains a need for the Court to make an example in instances where the behaviour of police amounts to a deliberate abuse of authority.

Anyone who has suffered loss as a result of police misconduct can obtain advice about the options available to them by contacting Websters Lawyers and arranging a free initial consultation, either by calling 8231 1363 or submitting a request through our contact page.

State of South Australia v Holder [2019] SASCFC 135

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Testimonials

Having such a short time frame I was very impressed with the outcome made by [my solicitor]. Excellent and timely manner

Sebastian

Kurralta Park

Very professional mannerism and overall great outcome was delivered by Websters Lawyers.

Nicholas

West Ryde NSW

Helpful, explained fully, patient, excellent service.

Kerry

Ridgehaven

Patient and helpful in explaining the process.

Brian

Ridgehaven

Call Websters Lawyers for a most professional and friendly service. All understanding with [my solicitors] and the reception staff. Thank you so much.

Christine

Magill

Making my will was effortless on my part, with everything explained clearly. Well done to all.

Christina

Highbury

Great service, professional, explains things clearly, definitely recommend Websters Lawyers.

Garth

Upper Hermitage

Patient, professional, good communication about procedures and probable outcomes.

Jeffrey

Brompton

Thank you for all your work over the course of the case. You [both] were always very approachable and I appreciated your understanding and professionalism in all areas.

Alexis

Christie Downs

All in all my experience was great. Thank you for your time and expertise.

Christina

Seacombe Gardens

My matter was dealt with efficiently and was explained in an understandable language. A pleasant experience.

Mary

Ridgehaven

Practical and very helpful. Reasons and explanations given where needed

John

Ridgehaven

I stumbled across Websters in the Yellow Pages and I rang, explained my situation and immediately they took my case on. Greatly appreciate their services.

Diane 

Ridgehaven

The service from Websters Lawyers was outstanding. [My solicitor] was caring, had patience and was very professional. Wonderful personality.

Julie

Yorketown

[My solicitor] made everything so simple to understand. [The receptionist] was wicked too, would recommend them anytime. Level of entire service was outstanding.

Craig

Golden Grove

 

I had dealings with Websters over 20 years ago. They were my first choice when I recently needed legal advice. Both legal and office staff were professional, courteous and accessible at all times. Everything was explained up front in a clear and concise manner. I would not hesitate to recommend their services.

Rod

Dernancourt

It has truly been a pleasure communicating with you throughout the process. I really appreciate your patient and speedy replies to my questions and requests. You were always able to provide an easily understood response and this helped me deal with the process. Your friendly and positive manner encouraged me to seek your advice.

Kathleen

Battery Hill QLD

[My lawyer's] service was prompt and efficient with all questions explained clearly with all our requests carried out within the laws. Overall service was very satisfactory.

John

Wynn Vale

[My lawyer] was excellent. 

Gordon

Glengowrie

Excellent service. Professional. Clear advice and instructions. Prompt actions. Overall 10/10!

Phillip

Ingle Farm

Overall, I was happy with my outcome and my lawyer, would definitely recommend [my lawyer].

Janet

Adelaide

[My solicitor] was excellent at helping us through preparing our wills which were particularly challenging as they involved assets in multiple countries. She was professional and knowledgeable and spent time tailoring the wills to our needs.

Jonathan

Greenwith

[My solicitor] was very helpful, respectful and polite. She made sure I understood the process and documentation of our wills.

Rachel

Greenwith

Professional. Smooth Transaction. 

Luke

Largs North

I found the whole experience from Receptionist to Solicitor excellent. They completely put us at our ease.

Ethel

Smithfield

This was a new experience for us and didn’t have a clue what to do. [Our solicitor] on our first visit put us at ease, explained what will happen, pointed out there was a strong case. [Our solicitor] was genuine in her approach, kept us well informed, explained actions several times with patience and understanding. Overall very happy with the service we received.

Stephen

Elizabeth Vale

[My lawyer] was very reassuring in her approach to my case. I felt that every possibility in terms of evidence to provide and possible outcomes were explained to me, The result of the case was the best possible outcome I could have expected.

David, Belair

 

With no previous dealing with the criminal justice system, [our solicitor] gave us excellent advice and guided us through a nightmare to achieve a just and correct outcome. [Our lawyer] was both forthright and compassionate in her handling of our case.

Malcolm, Belair

[My lawyer] explained all the legal terms in language I could understand – she was very easy to talk to.

Cameron, Munno Para

I felt confident knowing my matter was in good hands. Very professional!

Shravan, Christie Downs

Initial phone call was fantastic and the role of an executor was fully explained.

Penny, Henley Beach

The service I received was efficient and promptly finalised. The solicitor clearly explained the details and I was happy with how easy it was.

Dale, Fairview Park

[My lawyer] was exactly the lawyer I needed in a serious matter. The outcome was as predicted which was a fantastic result. I received prompt professional and personal service at all times. Capable and supportive in a very stressful period.

Jason, Munno Para West

I had any of my concerns answered to my satisfaction and understanding.

Valda, Ingle Farm

[My lawyer] is an excellent professional lawyer who assisted in achieving a great positive outcome/result. I sincerely thank you and your great staff for your assistance and guidance throughout my claim. Would highly recommend [my lawyer], staff and Websters Lawyers. Kept fully informed and guided, professionally throughout the matter.

Rena, Northgate

Our work was dealt with very efficiently and speedily. Our lawyer was very professional, at the same time as being approachable. Communication was great.

Christina, Highbury

My experience with Websters Lawyers was far beyond what I expected. From the moment I spoke to [my lawyer] she made me feel very comfortable and eased my stress. In my case I had a court appearance the day before we were scheduled to fly to Spain, Considering my first appointment with her was only 2 weeks before the court hearing, she was able to obtain the police statement and thoroughly work on my case within that limited time frame. She was very knowledgeable, understanding and confident which greatly relieved so much pressure from me and my family. At court, she explained everything thoroughly and advised me of all the possible outcomes. Price, service and result, very highly recommended. Thank you Websters Lawyers.

Rafael, Davoren Park

I have high expectations and they were met. Websters service was swift, courteous, professional and met the agreed budget. I will recommend Websters to my family, friends and colleagues. Thank you.

Peter, Forestville

I would recommend Websters Lawyers, especially for [my lawyer's] dedication and exemplary attitude and advice. She is the epitome of a good lawyer. The service was impeccable.

Pamela, West Lakes

[My lawyer] was very professional and I was made comfortable to understand.

Gregory, Penfield

I was very pleased with the end result and how well [my lawyer] conducted herself.

Sonya, Glanville

Very professional.

Jesse, Morphett Vale

[My lawyer] has been very prompt , reliable and provided a high level of communication.

Peter, Parkside

My experience at Websters was very positive. The stress was taken from me and I could not be happier with the outcome. [My lawyer] at Websters was professional, personable, available and caring. Thank you for making the experience stress free.

Magda, Holden Hill

Found my lawyer upfront and reliable – I would highly recommend Websters Lawyers.

Lee, Evanston Park

 

Top bunch of solicitors and admin staff. Very friendly and to the point service.

Bradley, Hallett Cove

Websters Lawyers were very professional in their service, I would be happy to recommend them.

Carole, Tea Tree Gully

We would not hesitate in recommending Websters for any legal matter. They are professional and courteous at all times and call back when they say they will.

David and Dianne, Lockleys

 

I fully recommend Websters Lawyers. This was the 3rd time myself & my family have used Websters Lawyers. In these stressful times we have found them to answer and guide us through the process needed to accomplish the legal requirements in a timely and courteous manner.

Dianne, Lynton

Solid, to the point, no hustle. Highly recommend.

George, Windsor Gardens

Contact us

Adelaide Office :
T: ( 08 ) 8231 1363
F: ( 08 ) 8231 5529

Ridgehaven Office :
T: ( 08 ) 8395 8000
F: ( 08 ) 8395 8222

Smithfield Office :
T: ( 08 ) 8487 0150
F: ( 08 ) 8395 8222

© Copyright WebstersLawyers.com 2017 All Rights Reserved
Website By A to Z Marketing

The post Police assault victim still entitled to receive over $135,000 appeared first on Websters Lawyers Adelaide, SA.

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Drink driving charge dismissed after ‘inept’ breath test by police https://websterslawyers.com.au/traffic-matters/drink-driving-charge-dismissed-after-inept-breath-test-by-police/ Fri, 08 Nov 2019 04:50:26 +0000 https://websterslawyers.com.au/?p=3933 Click to Call Testimonials Find an Expert Drink driving charge dismissed after ‘inept’ breath test by police A 76 year old Coober Pedy resident with no previous offences has had his conviction for ‘drink-driving’ set aside in the Supreme Court after it was found that the magistrate who heard the trial put too much significance…

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Drink driving charge dismissed after ‘inept’ breath test by police

A 76 year old Coober Pedy resident with no previous offences has had his conviction for ‘drink-driving’ set aside in the Supreme Court after it was found that the magistrate who heard the trial put too much significance on the result of an alcohol screening test, and the driver’s behaviour was consistent with his claim that he was simply tired.

Stock photo of a man taking a breath test in a bar.
[url=file_closeup.php?id=17580673][img]file_thumbview_approve.php?size=1&id=17580673[/img][/url] [url=file_closeup.php?id=17422989][img]file_thumbview_approve.php?size=1&id=17422989[/img][/url] [url=file_closeup.php?id=17422982][img]file_thumbview_approve.php?size=1&id=17422982[/img][/url] [url=file_closeup.php?id=17422970][img]file_thumbview_approve.php?size=1&id=17422970[/img][/url] [url=file_closeup.php?id=17422956][img]file_thumbview_approve.php?size=1&id=17422956[/img][/url] [url=file_closeup.php?id=18811956][img]file_thumbview_approve.php?size=1&id=18811956[/img][/url] [url=file_closeup.php?id=18812816][img]file_thumbview_approve.php?size=1&id=18812816[/img][/url] [url=file_closeup.php?id=18794611][img]file_thumbview_approve.php?size=1&id=18794611[/img][/url] [url=file_closeup.php?id=18794606][img]file_thumbview_approve.php?size=1&id=18794606[/img][/url] [url=file_closeup.php?id=18794599][img]file_thumbview_approve.php?size=1&id=18794599[/img][/url] [url=file_closeup.php?id=18522974][img]file_thumbview_approve.php?size=1&id=18522974[/img][/url] [url=file_closeup.php?id=18464710][img]file_thumbview_approve.php?size=1&id=18464710[/img][/url] [url=file_closeup.php?id=18464704][img]file_thumbview_approve.php?size=1&id=18464704[/img][/url] [url=file_closeup.php?id=18442590][img]file_thumbview_approve.php?size=1&id=18442590[/img][/url] [url=file_closeup.php?id=18442584][img]file_thumbview_approve.php?size=1&id=18442584[/img][/url] [url=file_closeup.php?id=18442227][img]file_thumbview_approve.php?size=1&id=18442227[/img][/url] [url=file_closeup.php?id=18442216][img]file_thumbview_approve.php?size=1&id=18442216[/img][/url] [url=file_closeup.php?id=18442196][img]file_thumbview_approve.php?size=1&id=18442196[/img][/url] [url=file_closeup.php?id=18442090][img]file_thumbview_approve.php?size=1&id=18442090[/img][/url] [url=file_closeup.php?id=18003254][img]file_thumbview_approve.php?size=1&id=18003254[/img][/url]

After a charge of failing to comply with a breath analysis test was withdrawn by police because of the ‘inept manner in which the procedure was conducted by the officer’, police still proceeded with a charge of driving under the influence of liquor despite not having a blood alcohol reading to rely upon.

The case shows the difference between the charges of ‘driving under the influence (DUI)’ and ‘driving with the prescribed concentration of alcohol (PCA)’ and also how an alcotest can’t be used to prove a driver’s blood alcohol concentration.

Driving Under the Influence Charge

The police officer’s account was that while following a Mercedes-Benz just outside of Coober Pedy he saw it drift to the right and cross the centre line with the right wheels.  The driver then corrected but then directed the car to the left-hand edge of the road while going around a right-hand bend kicking up stones.  The car then corrected to the right and nearly hit a concrete raised strip.  He said that he saw the driver reach for the seatbelt and then he used his police lights to cause the driver to stop.  The officer said that when the driver got out of the car he appeared to stumble and seemed unaware that his car was partially blocking the road.  The officer stopped the police car behind the Mercedes and the driver walked towards him nearly in the centre of the road.  The driver was said to be unsteady on his feet, his eyes appeared bloodshot and he smelt strongly of liquor.

Within a couple of minutes the police officer had the driver submit to an alcotest which gave a ‘positive’ result and displayed a reading of 0.162.  The driver was then taken to the Coober Pedy Police Station for a Breath Analysis.  During the test the driver blew into the apparatus several times but no reading of any blood alcohol content was recorded.

Interestingly, the whole procedure was recorded on videotape.  At all times the driver claimed that he had drunk only one 350ml bottle of light beer.  The recording showed him to be cooperative and sensible and the Court noted that the recording which was made very soon after he had been driving didn’t appear to suggest that he was in any way affected by alcohol.  In fact, ‘the overwhelming impression’ was that he was ‘quite sober’.

Fail to Comply with Breath Analysis Charge

The charge of failure to comply with the breath analysis test was withdrawn on the basis that it was a ‘failure to comply by police.’

The procedure was recorded on video although the police were initially resistant to producing the video to the Court.  What it disclosed was quite remarkable and made it clear why the police didn’t go ahead with the charge of failing to comply with the breath analysis.  The officer directed the driver to blow into the device but after a few seconds told the driver to stop blowing, stating that he was not doing so correctly but without explaining how he was blowing incorrectly.  There was a second attempt to blow and after just two seconds the officer pulled the mouthpiece away.  He then warned the driver that it is an offence to fail to provide a breath sample without good cause and said, “If you do not blow, you will lose your licence for 12 months,” and, “If you fail to comply with this, you lose your licence and you lose your car.”  He then said, “This is your last chance.  Your car will go if you do not comply.”

On the third attempt the driver blew for just over a second before the pipe was removed from his mouth by the officer without warning and while the driver was still blowing.  The man was then charged with failing to comply with the breath analysis.  However, the police later withdrew that charge after an internal review.  The Court stated that was the only responsible decision to take, given that the recording showed that the officer’s manner toward the driver was, “in the most charitable words, curt and unhelpful; and his attempted administration of the test was inept.”  The driver was not afforded the requisite opportunity to provide the two breath samples needed to provide a reliable result.

So without the result of a breath analysis test how could the charge go ahead?

The driver wasn’t charged with being over the legal limit, but with driving while under the influence of intoxicating liquor.  Technically, you can be affected by the alcohol you’ve had to drink even if you’re under the limit and these are two different charges.  The problem was that the man claimed the reason who drove in the manner observed by police was because he was tired and not because he’d been drinking.

His evidence was that he was particularly tired at the time of driving.  Although 75 years old, he’d been running the local caravan park and at the same time a pizza business and was building a large underground residence.  He had gone to bed at 11.00 pm the previous evening and got up at 6.30 am that day but had little sleep because he’d had to get up to attend to arrivals and departures at the caravan park.  He worked at the park until midday then went to the location of the new dugout where he operated a grader for some time before deciding to go home.  Just before leaving he had one 350ml light beer and it was on the way home that he was stopped by police.

The man didn’t really dispute what the police officer said happened while he was driving, but said that this was because he was very tired and wasn’t paying much particular attention.  He denied that he was unsteady on his feet.

The Magistrate who first heard the trial seemed to rely on the result of the alcotest at the scene and concluded that the driver must be mistaken about how much he had to drink.  He found him guilty of driving under the influence of intoxicating liquor and imposed a fine of $1,100 and disqualified him from driving for twelve months.   The driver appealed that decision and the Supreme Court looked carefully at whether the blood alcohol reading that that alcotest recorded had any significance.

What is ‘mouth alcohol’?

The case involves a thorough review of the process of alcohol breath testing.  The Court noted that a breath analysing instrument (or BA machine) is designed to analyse only ‘alveolar air’.  That means, the air that comes from the sacs deep in the lung because that air is right next to the lung tissue and is in a continuous state of cross-transference with the alcohol in the blood.  It’s for this reason that a breath analysis involves the subject giving one long continuous breath into the instrument, because it is only the last of that air (the alveolar air) that is captured for testing by the machine.

As this case demonstrates, the problem that can occur involves residual alcohol in the mouth if a test is taken shortly after alcohol has been consumed.  This is alcohol that is absorbed into the mucous linings of the mouth, the tongue, saliva and can also be trapped behind dentures.  It takes time for this mouth alcohol to be washed away by the saliva and if it is present it can result in an incorrect reading.  For this reason the practice is to wait at least 15 minutes from the time the subject last had a drink before a breath test is undertaken.  The operating manual for the BA machines currently in use state that it is ‘essential to allow at least 15 minutes from the last intake of alcohol’ as well after the use of mouth sprays, lozenge medications containing alcohol, medications applied by aerosol, and after vomiting or belching.  SA Police have established a procedure of waiting 20 minutes to ensure that the test is effective.

What is the Alcotest for?

The need to wait 20 minutes to conduct a breath analysis and the time and effort that the test takes would make it impractical for police to require every driver they want to check to undergo the BA procedure.  For that reason an ‘alcotest’ can first be conducted which is a portable ‘screening test’ to see if a driver might be over the legal limit.  Although a positive alcotest indicates that there is a reasonable likelihood that the driver is over the legal limit, the result can’t be used to prove that fact and police must then rely on the results obtained from a breath analysis instrument.

If police are using their random testing powers then a driver can’t be required to submit to a breath analysis unless there has been a positive alcotest.  In certain prescribed circumstances however, such as when police believe on reasonable grounds that a driver has behaved a manner indicating their ability to drive is impaired, an alcotest is not a requirement.  In fact, it is usually accepted that if a police officer suspects a driver to be under the influence then an alcotest won’t be conducted since there is no need to ‘check’ whether the driver might be over the limit.

The Supreme Court concluded that the Magistrate who heard the trial incorrectly placed significance on the reading obtained by the alcotest.  Rather than simply accepting that there was a ‘positive result’ and therefore the driver might have been over the limit, the Magistrate considered that there was in fact a reading of 0.162% because that is the result that the alcotest gave.  For the reasons outlined above, however, it wasn’t correct to draw that conclusion.

The Outcome

Since the alcotest result could do nothing more than indicate that the driver might have been over the limit, and his manner of driving could be explained by the fact that he was tired, the Court could not be satisfied beyond reasonable doubt that he was driving under the influence and the charge was dismissed.

Another fact that was of concern to the Court was the failure to call another police officer who was present during the breath testing procedure to give evidence of his observations of the driver.  The police claimed that we was clearly under the influence of intoxicating liquor, and that other officer would have been able to say whether the driver had been ‘unsteady on his feet’ as had been alleged.  The failure to call this witness wasn’t explained.

A comment by one expert author quoted by the Court in this case remains very relevant.  In referring to the general sophistication of the breath analysis process it was stated that in spite of this sophistication, “a good quality assurance program will still include … well-informed legal representatives who can recognise problems that have eluded the system in spite of quality assurance programs …”

As this case shows, just because a person is charged with a drink driving offence doesn’t mean that they are guilty. The laws relating to drink driving are complicated and anyone facing a charge of driving under the influence, driving with the prescribed concentration of alcohol or refusing or failing to comply with a breath analysis test should get expert advice as soon as possible.  Websters Lawyers have experienced specialist traffic and criminal lawyers available to assist and offer a free initial consultation to help you make the right decision about how to handle these types of charges.

Athanasiadis v Police [2019] SADC 176

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Testimonials

Having such a short time frame I was very impressed with the outcome made by [my solicitor]. Excellent and timely manner

Sebastian

Kurralta Park

Very professional mannerism and overall great outcome was delivered by Websters Lawyers.

Nicholas

West Ryde NSW

Helpful, explained fully, patient, excellent service.

Kerry

Ridgehaven

Patient and helpful in explaining the process.

Brian

Ridgehaven

Call Websters Lawyers for a most professional and friendly service. All understanding with [my solicitors] and the reception staff. Thank you so much.

Christine

Magill

Making my will was effortless on my part, with everything explained clearly. Well done to all.

Christina

Highbury

Great service, professional, explains things clearly, definitely recommend Websters Lawyers.

Garth

Upper Hermitage

Patient, professional, good communication about procedures and probable outcomes.

Jeffrey

Brompton

Thank you for all your work over the course of the case. You [both] were always very approachable and I appreciated your understanding and professionalism in all areas.

Alexis

Christie Downs

All in all my experience was great. Thank you for your time and expertise.

Christina

Seacombe Gardens

My matter was dealt with efficiently and was explained in an understandable language. A pleasant experience.

Mary

Ridgehaven

Practical and very helpful. Reasons and explanations given where needed

John

Ridgehaven

I stumbled across Websters in the Yellow Pages and I rang, explained my situation and immediately they took my case on. Greatly appreciate their services.

Diane 

Ridgehaven

The service from Websters Lawyers was outstanding. [My solicitor] was caring, had patience and was very professional. Wonderful personality.

Julie

Yorketown

[My solicitor] made everything so simple to understand. [The receptionist] was wicked too, would recommend them anytime. Level of entire service was outstanding.

Craig

Golden Grove

 

I had dealings with Websters over 20 years ago. They were my first choice when I recently needed legal advice. Both legal and office staff were professional, courteous and accessible at all times. Everything was explained up front in a clear and concise manner. I would not hesitate to recommend their services.

Rod

Dernancourt

It has truly been a pleasure communicating with you throughout the process. I really appreciate your patient and speedy replies to my questions and requests. You were always able to provide an easily understood response and this helped me deal with the process. Your friendly and positive manner encouraged me to seek your advice.

Kathleen

Battery Hill QLD

[My lawyer's] service was prompt and efficient with all questions explained clearly with all our requests carried out within the laws. Overall service was very satisfactory.

John

Wynn Vale

[My lawyer] was excellent. 

Gordon

Glengowrie

Excellent service. Professional. Clear advice and instructions. Prompt actions. Overall 10/10!

Phillip

Ingle Farm

Overall, I was happy with my outcome and my lawyer, would definitely recommend [my lawyer].

Janet

Adelaide

[My solicitor] was excellent at helping us through preparing our wills which were particularly challenging as they involved assets in multiple countries. She was professional and knowledgeable and spent time tailoring the wills to our needs.

Jonathan

Greenwith

[My solicitor] was very helpful, respectful and polite. She made sure I understood the process and documentation of our wills.

Rachel

Greenwith

Professional. Smooth Transaction. 

Luke

Largs North

I found the whole experience from Receptionist to Solicitor excellent. They completely put us at our ease.

Ethel

Smithfield

This was a new experience for us and didn’t have a clue what to do. [Our solicitor] on our first visit put us at ease, explained what will happen, pointed out there was a strong case. [Our solicitor] was genuine in her approach, kept us well informed, explained actions several times with patience and understanding. Overall very happy with the service we received.

Stephen

Elizabeth Vale

[My lawyer] was very reassuring in her approach to my case. I felt that every possibility in terms of evidence to provide and possible outcomes were explained to me, The result of the case was the best possible outcome I could have expected.

David, Belair

 

With no previous dealing with the criminal justice system, [our solicitor] gave us excellent advice and guided us through a nightmare to achieve a just and correct outcome. [Our lawyer] was both forthright and compassionate in her handling of our case.

Malcolm, Belair

[My lawyer] explained all the legal terms in language I could understand – she was very easy to talk to.

Cameron, Munno Para

I felt confident knowing my matter was in good hands. Very professional!

Shravan, Christie Downs

Initial phone call was fantastic and the role of an executor was fully explained.

Penny, Henley Beach

The service I received was efficient and promptly finalised. The solicitor clearly explained the details and I was happy with how easy it was.

Dale, Fairview Park

[My lawyer] was exactly the lawyer I needed in a serious matter. The outcome was as predicted which was a fantastic result. I received prompt professional and personal service at all times. Capable and supportive in a very stressful period.

Jason, Munno Para West

I had any of my concerns answered to my satisfaction and understanding.

Valda, Ingle Farm

[My lawyer] is an excellent professional lawyer who assisted in achieving a great positive outcome/result. I sincerely thank you and your great staff for your assistance and guidance throughout my claim. Would highly recommend [my lawyer], staff and Websters Lawyers. Kept fully informed and guided, professionally throughout the matter.

Rena, Northgate

Our work was dealt with very efficiently and speedily. Our lawyer was very professional, at the same time as being approachable. Communication was great.

Christina, Highbury

My experience with Websters Lawyers was far beyond what I expected. From the moment I spoke to [my lawyer] she made me feel very comfortable and eased my stress. In my case I had a court appearance the day before we were scheduled to fly to Spain, Considering my first appointment with her was only 2 weeks before the court hearing, she was able to obtain the police statement and thoroughly work on my case within that limited time frame. She was very knowledgeable, understanding and confident which greatly relieved so much pressure from me and my family. At court, she explained everything thoroughly and advised me of all the possible outcomes. Price, service and result, very highly recommended. Thank you Websters Lawyers.

Rafael, Davoren Park

I have high expectations and they were met. Websters service was swift, courteous, professional and met the agreed budget. I will recommend Websters to my family, friends and colleagues. Thank you.

Peter, Forestville

I would recommend Websters Lawyers, especially for [my lawyer's] dedication and exemplary attitude and advice. She is the epitome of a good lawyer. The service was impeccable.

Pamela, West Lakes

[My lawyer] was very professional and I was made comfortable to understand.

Gregory, Penfield

I was very pleased with the end result and how well [my lawyer] conducted herself.

Sonya, Glanville

Very professional.

Jesse, Morphett Vale

[My lawyer] has been very prompt , reliable and provided a high level of communication.

Peter, Parkside

My experience at Websters was very positive. The stress was taken from me and I could not be happier with the outcome. [My lawyer] at Websters was professional, personable, available and caring. Thank you for making the experience stress free.

Magda, Holden Hill

Found my lawyer upfront and reliable – I would highly recommend Websters Lawyers.

Lee, Evanston Park

 

Top bunch of solicitors and admin staff. Very friendly and to the point service.

Bradley, Hallett Cove

Websters Lawyers were very professional in their service, I would be happy to recommend them.

Carole, Tea Tree Gully

We would not hesitate in recommending Websters for any legal matter. They are professional and courteous at all times and call back when they say they will.

David and Dianne, Lockleys

 

I fully recommend Websters Lawyers. This was the 3rd time myself & my family have used Websters Lawyers. In these stressful times we have found them to answer and guide us through the process needed to accomplish the legal requirements in a timely and courteous manner.

Dianne, Lynton

Solid, to the point, no hustle. Highly recommend.

George, Windsor Gardens

Contact us

Adelaide Office :
T: ( 08 ) 8231 1363
F: ( 08 ) 8231 5529

Ridgehaven Office :
T: ( 08 ) 8395 8000
F: ( 08 ) 8395 8222

Smithfield Office :
T: ( 08 ) 8487 0150
F: ( 08 ) 8395 8222

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Summer holidays are coming: parenting orders due soon! https://websterslawyers.com.au/family-law/summer-holidays-are-coming-parenting-orders-due-soon/ Tue, 29 Oct 2019 07:58:24 +0000 https://websterslawyers.com.au/?p=3916 Click to Call Testimonials Find an Expert Summer Holidays Are Coming: Parenting Orders Due Soon! If you didn’t have your fair share of time with your children these school holidays, speak to a family lawyer now to make arrangements for the summer holidays. Holidays can be challenging for families with separated parents. Tensions can run…

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Summer Holidays Are Coming: Parenting Orders Due Soon!

If you didn’t have your fair share of time with your children these school holidays, speak to a family lawyer now to make arrangements for the summer holidays.

48F26F58-227D-45CC-9061-16B17E596613.jpeg

Holidays can be challenging for families with separated parents. Tensions can run high when negotiating where and with whom the children will spend their time. A lack of planning and communication can lead to stress and confusion for the children, who sometimes wish to please multipleparties and are left stranded in the middle.

Families seeking to protect their children from this juggle of expectations should plan for the festive season in advance. Early communication of holiday arrangements can help provide your children with a sense of stability and let themfocus on having a revitalising break from school and an enjoyable holiday break.

So when do you need to plan?

The second Friday in November is the general cut-off date for applications in the Family Court and the Federal Circuit Court to be considered before Christmas in Australia. Unless it is an emergency matter, the Courts will regularly require caregiversto attend mediation under Section 60I of the Family Law Act 1975 (Cth) prior to applying for Parenting Orders.

Meaning: you should be making arrangements to apply for these Orders now.

Caregivers who wish to travel with children over the holidays should also consider whether passport applications will be necessary, noting that it may take up to an additional three weeks for such applications to be approved and actioned by the Australian Passport Office after any necessary Parenting Orders are obtained.

If you require Parenting Orders to outline what time you will spend with your children in their school holidays, please give us a call on (08) 8231 1362 at your earliest convenience.

If you are unable to make an application by the above cut-offdate and require assistance to negotiate or arrange your time with your children, the family law experts at Websters Lawyers are here to help. We are a child-focused team and can provide you with advice which prioritises their wellbeing.

When it comes to finding a middle ground for time arrangements, our lawyers recommend that caregivers keepthe following approaches in mind.

Avoid arguing or negotiating around the children. It is not in a child’s interest to be in the middle of a fight, or for them to feel guilty about where they spend their time.
If a holiday date cannot be divided, emphasise the silver lining for the children to have more than one day of celebration with their family.
If an agreement is reached, put it in writing to help avoid confusion or discrepancies when the dates in question arrive.
Compromise shouldn’t be about surrendering your position, it is about considering what is best for the children. Remember that holiday arrangements are often a give-and-take affair, and one-sided arrangements are often short-lived.

Our family law team can support you from the initial stages of negotiation in children’s matters right through to the actioning of Parenting Orders. If you are unsure of your children’s Christmas or school holiday living arrangements, or would like to speak to a family lawyer about a children’s matter, please contact us here.

To read more, please go to this link.

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Testimonials

Having such a short time frame I was very impressed with the outcome made by [my solicitor]. Excellent and timely manner

Sebastian

Kurralta Park

Very professional mannerism and overall great outcome was delivered by Websters Lawyers.

Nicholas

West Ryde NSW

Helpful, explained fully, patient, excellent service.

Kerry

Ridgehaven

Patient and helpful in explaining the process.

Brian

Ridgehaven

Call Websters Lawyers for a most professional and friendly service. All understanding with [my solicitors] and the reception staff. Thank you so much.

Christine

Magill

Making my will was effortless on my part, with everything explained clearly. Well done to all.

Christina

Highbury

Great service, professional, explains things clearly, definitely recommend Websters Lawyers.

Garth

Upper Hermitage

Patient, professional, good communication about procedures and probable outcomes.

Jeffrey

Brompton

Thank you for all your work over the course of the case. You [both] were always very approachable and I appreciated your understanding and professionalism in all areas.

Alexis

Christie Downs

All in all my experience was great. Thank you for your time and expertise.

Christina

Seacombe Gardens

My matter was dealt with efficiently and was explained in an understandable language. A pleasant experience.

Mary

Ridgehaven

Practical and very helpful. Reasons and explanations given where needed

John

Ridgehaven

I stumbled across Websters in the Yellow Pages and I rang, explained my situation and immediately they took my case on. Greatly appreciate their services.

Diane 

Ridgehaven

The service from Websters Lawyers was outstanding. [My solicitor] was caring, had patience and was very professional. Wonderful personality.

Julie

Yorketown

[My solicitor] made everything so simple to understand. [The receptionist] was wicked too, would recommend them anytime. Level of entire service was outstanding.

Craig

Golden Grove

 

I had dealings with Websters over 20 years ago. They were my first choice when I recently needed legal advice. Both legal and office staff were professional, courteous and accessible at all times. Everything was explained up front in a clear and concise manner. I would not hesitate to recommend their services.

Rod

Dernancourt

It has truly been a pleasure communicating with you throughout the process. I really appreciate your patient and speedy replies to my questions and requests. You were always able to provide an easily understood response and this helped me deal with the process. Your friendly and positive manner encouraged me to seek your advice.

Kathleen

Battery Hill QLD

[My lawyer's] service was prompt and efficient with all questions explained clearly with all our requests carried out within the laws. Overall service was very satisfactory.

John

Wynn Vale

[My lawyer] was excellent. 

Gordon

Glengowrie

Excellent service. Professional. Clear advice and instructions. Prompt actions. Overall 10/10!

Phillip

Ingle Farm

Overall, I was happy with my outcome and my lawyer, would definitely recommend [my lawyer].

Janet

Adelaide

[My solicitor] was excellent at helping us through preparing our wills which were particularly challenging as they involved assets in multiple countries. She was professional and knowledgeable and spent time tailoring the wills to our needs.

Jonathan

Greenwith

[My solicitor] was very helpful, respectful and polite. She made sure I understood the process and documentation of our wills.

Rachel

Greenwith

Professional. Smooth Transaction. 

Luke

Largs North

I found the whole experience from Receptionist to Solicitor excellent. They completely put us at our ease.

Ethel

Smithfield

This was a new experience for us and didn’t have a clue what to do. [Our solicitor] on our first visit put us at ease, explained what will happen, pointed out there was a strong case. [Our solicitor] was genuine in her approach, kept us well informed, explained actions several times with patience and understanding. Overall very happy with the service we received.

Stephen

Elizabeth Vale

[My lawyer] was very reassuring in her approach to my case. I felt that every possibility in terms of evidence to provide and possible outcomes were explained to me, The result of the case was the best possible outcome I could have expected.

David, Belair

 

With no previous dealing with the criminal justice system, [our solicitor] gave us excellent advice and guided us through a nightmare to achieve a just and correct outcome. [Our lawyer] was both forthright and compassionate in her handling of our case.

Malcolm, Belair

[My lawyer] explained all the legal terms in language I could understand – she was very easy to talk to.

Cameron, Munno Para

I felt confident knowing my matter was in good hands. Very professional!

Shravan, Christie Downs

Initial phone call was fantastic and the role of an executor was fully explained.

Penny, Henley Beach

The service I received was efficient and promptly finalised. The solicitor clearly explained the details and I was happy with how easy it was.

Dale, Fairview Park

[My lawyer] was exactly the lawyer I needed in a serious matter. The outcome was as predicted which was a fantastic result. I received prompt professional and personal service at all times. Capable and supportive in a very stressful period.

Jason, Munno Para West

I had any of my concerns answered to my satisfaction and understanding.

Valda, Ingle Farm

[My lawyer] is an excellent professional lawyer who assisted in achieving a great positive outcome/result. I sincerely thank you and your great staff for your assistance and guidance throughout my claim. Would highly recommend [my lawyer], staff and Websters Lawyers. Kept fully informed and guided, professionally throughout the matter.

Rena, Northgate

Our work was dealt with very efficiently and speedily. Our lawyer was very professional, at the same time as being approachable. Communication was great.

Christina, Highbury

My experience with Websters Lawyers was far beyond what I expected. From the moment I spoke to [my lawyer] she made me feel very comfortable and eased my stress. In my case I had a court appearance the day before we were scheduled to fly to Spain, Considering my first appointment with her was only 2 weeks before the court hearing, she was able to obtain the police statement and thoroughly work on my case within that limited time frame. She was very knowledgeable, understanding and confident which greatly relieved so much pressure from me and my family. At court, she explained everything thoroughly and advised me of all the possible outcomes. Price, service and result, very highly recommended. Thank you Websters Lawyers.

Rafael, Davoren Park

I have high expectations and they were met. Websters service was swift, courteous, professional and met the agreed budget. I will recommend Websters to my family, friends and colleagues. Thank you.

Peter, Forestville

I would recommend Websters Lawyers, especially for [my lawyer's] dedication and exemplary attitude and advice. She is the epitome of a good lawyer. The service was impeccable.

Pamela, West Lakes

[My lawyer] was very professional and I was made comfortable to understand.

Gregory, Penfield

I was very pleased with the end result and how well [my lawyer] conducted herself.

Sonya, Glanville

Very professional.

Jesse, Morphett Vale

[My lawyer] has been very prompt , reliable and provided a high level of communication.

Peter, Parkside

My experience at Websters was very positive. The stress was taken from me and I could not be happier with the outcome. [My lawyer] at Websters was professional, personable, available and caring. Thank you for making the experience stress free.

Magda, Holden Hill

Found my lawyer upfront and reliable – I would highly recommend Websters Lawyers.

Lee, Evanston Park

 

Top bunch of solicitors and admin staff. Very friendly and to the point service.

Bradley, Hallett Cove

Websters Lawyers were very professional in their service, I would be happy to recommend them.

Carole, Tea Tree Gully

We would not hesitate in recommending Websters for any legal matter. They are professional and courteous at all times and call back when they say they will.

David and Dianne, Lockleys

 

I fully recommend Websters Lawyers. This was the 3rd time myself & my family have used Websters Lawyers. In these stressful times we have found them to answer and guide us through the process needed to accomplish the legal requirements in a timely and courteous manner.

Dianne, Lynton

Solid, to the point, no hustle. Highly recommend.

George, Windsor Gardens

Contact us

Adelaide Office :
T: ( 08 ) 8231 1363
F: ( 08 ) 8231 5529

Ridgehaven Office :
T: ( 08 ) 8395 8000
F: ( 08 ) 8395 8222

Smithfield Office :
T: ( 08 ) 8487 0150
F: ( 08 ) 8395 8222

© Copyright WebstersLawyers.com 2017 All Rights Reserved
Website By A to Z Marketing

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What happens when a will is made in ‘suspicious circumstances’? https://websterslawyers.com.au/wills-power-of-attorney/what-happens-when-a-will-is-made-in-suspicious-circumstances/ Thu, 24 Oct 2019 06:32:38 +0000 https://websterslawyers.com.au/?p=3883 Click to Call Testimonials Find an Expert WHAT HAPPENS WHEN A WILL IS MADE IN ‘SUSPICIOUS CIRCUMSTANCES’? The circumstances were enough to make anyone suspicious. Despite a previous will in 2001 leaving everything to her husband and, if he died before her then to each of his five nephews in equal shares, Nadia’s more recent…

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WHAT HAPPENS WHEN A WILL IS MADE IN ‘SUSPICIOUS CIRCUMSTANCES’?

The circumstances were enough to make anyone suspicious.

Despite a previous will in 2001 leaving everything to her husband and, if he died before her then to each of his five nephews in equal shares, Nadia’s more recent will left everything to a woman whom she described as ‘my daughter Georgette’ even though they were totally unrelated.

While this alone might have been enough to raise questions about the validity of the will, the circumstances under which the will came to be created were remarkable.

Close-up portrait of brunette woman with distrustful expression in her face. Soft focus.
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Nadia, the testatrix (the person who made the will) was in the final stages of metastasised breast cancer and had been released from palliative care in December 2014.  She was then taken by Georgette and Georgette’s son to a lawyer who had never met Nadia.  The lawyer had already written up the will as well as a power of attorney in favour of Georgette based on lies that Georgette’s son had told the lawyer which Georgette knew about.  These included the lie that Georgette was Nadia’s daughter.

Nadia died on 2 April 2015.

Shortly after the will and power of attorney were signed by Nadia, Georgette transferred Nadia’s home, which was valued at around $725,000.00, into her own name for only $1.00.  Following that, and just three days before Nadia’s death, Georgette withdrew over $17,000.00 from Nadia’s bank account by way of a bank cheque in favour of her son, leaving a balance of 92 cents.  The explanation for this was that the funds were used to pay for Nadia’s funeral, although the Court noted there was no explanation as to why the cheque was in favour of her son and why the funds had been taken before Nadia had died.

When the nephews challenged the will, the Court had to investigate whether Nadia had ‘testamentary capacity’ meaning that she knew and approved of the will that she signed.  This involved hearing evidence from various people who had dealings with Nadia at around that time, including a friend and her medical specialists.

While Nadia was undergoing treatment for her cancer Georgette regularly accompanied her to medical appointments and took Nadia into her own home.  The Court said that such conduct is ordinarily laudable, but in this case had to be assessed against the fact that Nadia’s oldest friend was kept away from her (even from her funeral) by being falsely told that Nadia didn’t want to see her, along with the transactions that Georgette and her son entered into on Nadia’s behalf.

The medical evidence was clear that around the time that she signed the Will, Nadia was in great pain.  She was having chemotherapy every three weeks and was also suffering sciatica and a shoulder injury following a fall.  The will was executed on 12 December 2014, just a week after she had been discharged from hospital.  There was evidence that in December 2014 there were metastases (or secondary cancerous growths) in her brain.  Although she was taking painkilling prescription drugs throughout this time, the Court found that the evidence showed these did not impair her cognitive functions but nevertheless, her alertness was declining.

The Judge who first heard the case regarded Georgette and her son as unreliable, saying that Georgette was ‘prepared to invent evidence to improve her case.’

Nadia’s friend Mary, who had been kept away from Nadia in her last months, gave evidence that Nadia would say to her that the house was for Raghib’s (her husband’s) nephews.  Even in late 2014 Nadia said to her, “I leave all my money and house to my nephews.”  When Nadia was diagnosed with cancer, and around the time that the will was signed, Nadia would say to Mary, “I start to forget things, my mind no very good,” and, “I can’t think straight Mary.”

Nadia’s radiation oncologist gave evidence that when she was in hospital in the first week of December 2014 Nadia showed no signs of confusion.  Nadia had been prescribed an opiate pain relieving drug but the oncologist said that would not usually affect a person’s ability to make decisions.  On the other hand, the brain metastases could cause changes to personality and memory although that wouldn’t necessarily be the case.

What was significant to the Court was the evidence of Nadia’s GP that on two dates in December Georgette’s son came in on Nadia’s behalf to obtain further prescriptions for pain killers and that Nadia did not attend on those occasions.  This suggested a deterioration in her condition since the doctor last saw her.

What is sufficient to dispel any doubt or suspicion regarding a will varies with the circumstances of each case.  If suspicious circumstances are established then the burden of proving that the deceased person was a ‘free and capable testator who knew and approved the contents of the Will’ falls on the party asserting that the Will should be admitted to probate.

One area that gives rise to such a suspicion is when the person who prepares the will for the testator stands to take a benefit from it.  The Courts have said that when this suspicion is created, it must be removed by the person seeking to rely on the will.

In this case, the Court thought that it was ‘bristling with suspicious circumstances’.  These included among other things the facts that:

  • Georgette’s son who lived with his mother and stood indirectly to benefit from the will was the person who gave instructions to the lawyer rather than Nadia herself;
  • That Nadia left nothing to her church when in her previous wills she had done so;
  • Georgette and her son were present when the will was made;
  • The lawyer drafting the will was told by Georgette’s son that she was Nadia’s daughter;
  • There was a sense of urgency to get the will and power of attorney executed at a single meeting.

Another important question raised by the Court was, “Why was there a need for a power of attorney in any event?”  Nadia was dying and as she was in palliative care she would never move into a retirement village.  Her home was her only substantial asset so there was no real need for her to have a power of attorney.  The only reason that the Court could think of was to be able to misuse it in the event that Nadia didn’t ‘speedily die’.

Importantly, the Court has said that proof that the will was read by or read to the testator before its execution, or that it was explained to the testator, might not be enough and it is necessary to look at the evidence as a whole.

The Court concluded that given the way in which the will came to be prepared and executed, Georgette had not established that it should be admitted to probate.  On that basis the Court ordered that Nadia’s earlier will from 2001 leaving everything to the nephews and her church was to be admitted.  The house that Georgette had transferred into her own name for one dollar was to be conveyed back to the estate.

It isn’t unusual for someone who is going to benefit from a will to assist the will maker create that will, and as this case highlights, when that happens the Court will ordinarily treat the circumstances as suspicious.  It is much better to engage a lawyer to draft the will who can not only act independently but will be in a position to give evidence to establish the genuineness of the will if it is challenged.

Mekhail v Hana; Mekail v Hana [2019] NSWCA 197

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Testimonials

Having such a short time frame I was very impressed with the outcome made by [my solicitor]. Excellent and timely manner

Sebastian

Kurralta Park

Very professional mannerism and overall great outcome was delivered by Websters Lawyers.

Nicholas

West Ryde NSW

Helpful, explained fully, patient, excellent service.

Kerry

Ridgehaven

Patient and helpful in explaining the process.

Brian

Ridgehaven

Call Websters Lawyers for a most professional and friendly service. All understanding with [my solicitors] and the reception staff. Thank you so much.

Christine

Magill

Making my will was effortless on my part, with everything explained clearly. Well done to all.

Christina

Highbury

Great service, professional, explains things clearly, definitely recommend Websters Lawyers.

Garth

Upper Hermitage

Patient, professional, good communication about procedures and probable outcomes.

Jeffrey

Brompton

Thank you for all your work over the course of the case. You [both] were always very approachable and I appreciated your understanding and professionalism in all areas.

Alexis

Christie Downs

All in all my experience was great. Thank you for your time and expertise.

Christina

Seacombe Gardens

My matter was dealt with efficiently and was explained in an understandable language. A pleasant experience.

Mary

Ridgehaven

Practical and very helpful. Reasons and explanations given where needed

John

Ridgehaven

I stumbled across Websters in the Yellow Pages and I rang, explained my situation and immediately they took my case on. Greatly appreciate their services.

Diane 

Ridgehaven

The service from Websters Lawyers was outstanding. [My solicitor] was caring, had patience and was very professional. Wonderful personality.

Julie

Yorketown

[My solicitor] made everything so simple to understand. [The receptionist] was wicked too, would recommend them anytime. Level of entire service was outstanding.

Craig

Golden Grove

 

I had dealings with Websters over 20 years ago. They were my first choice when I recently needed legal advice. Both legal and office staff were professional, courteous and accessible at all times. Everything was explained up front in a clear and concise manner. I would not hesitate to recommend their services.

Rod

Dernancourt

It has truly been a pleasure communicating with you throughout the process. I really appreciate your patient and speedy replies to my questions and requests. You were always able to provide an easily understood response and this helped me deal with the process. Your friendly and positive manner encouraged me to seek your advice.

Kathleen

Battery Hill QLD

[My lawyer's] service was prompt and efficient with all questions explained clearly with all our requests carried out within the laws. Overall service was very satisfactory.

John

Wynn Vale

[My lawyer] was excellent. 

Gordon

Glengowrie

Excellent service. Professional. Clear advice and instructions. Prompt actions. Overall 10/10!

Phillip

Ingle Farm

Overall, I was happy with my outcome and my lawyer, would definitely recommend [my lawyer].

Janet

Adelaide

[My solicitor] was excellent at helping us through preparing our wills which were particularly challenging as they involved assets in multiple countries. She was professional and knowledgeable and spent time tailoring the wills to our needs.

Jonathan

Greenwith

[My solicitor] was very helpful, respectful and polite. She made sure I understood the process and documentation of our wills.

Rachel

Greenwith

Professional. Smooth Transaction. 

Luke

Largs North

I found the whole experience from Receptionist to Solicitor excellent. They completely put us at our ease.

Ethel

Smithfield

This was a new experience for us and didn’t have a clue what to do. [Our solicitor] on our first visit put us at ease, explained what will happen, pointed out there was a strong case. [Our solicitor] was genuine in her approach, kept us well informed, explained actions several times with patience and understanding. Overall very happy with the service we received.

Stephen

Elizabeth Vale

[My lawyer] was very reassuring in her approach to my case. I felt that every possibility in terms of evidence to provide and possible outcomes were explained to me, The result of the case was the best possible outcome I could have expected.

David, Belair

 

With no previous dealing with the criminal justice system, [our solicitor] gave us excellent advice and guided us through a nightmare to achieve a just and correct outcome. [Our lawyer] was both forthright and compassionate in her handling of our case.

Malcolm, Belair

[My lawyer] explained all the legal terms in language I could understand – she was very easy to talk to.

Cameron, Munno Para

I felt confident knowing my matter was in good hands. Very professional!

Shravan, Christie Downs

Initial phone call was fantastic and the role of an executor was fully explained.

Penny, Henley Beach

The service I received was efficient and promptly finalised. The solicitor clearly explained the details and I was happy with how easy it was.

Dale, Fairview Park

[My lawyer] was exactly the lawyer I needed in a serious matter. The outcome was as predicted which was a fantastic result. I received prompt professional and personal service at all times. Capable and supportive in a very stressful period.

Jason, Munno Para West

I had any of my concerns answered to my satisfaction and understanding.

Valda, Ingle Farm

[My lawyer] is an excellent professional lawyer who assisted in achieving a great positive outcome/result. I sincerely thank you and your great staff for your assistance and guidance throughout my claim. Would highly recommend [my lawyer], staff and Websters Lawyers. Kept fully informed and guided, professionally throughout the matter.

Rena, Northgate

Our work was dealt with very efficiently and speedily. Our lawyer was very professional, at the same time as being approachable. Communication was great.

Christina, Highbury

My experience with Websters Lawyers was far beyond what I expected. From the moment I spoke to [my lawyer] she made me feel very comfortable and eased my stress. In my case I had a court appearance the day before we were scheduled to fly to Spain, Considering my first appointment with her was only 2 weeks before the court hearing, she was able to obtain the police statement and thoroughly work on my case within that limited time frame. She was very knowledgeable, understanding and confident which greatly relieved so much pressure from me and my family. At court, she explained everything thoroughly and advised me of all the possible outcomes. Price, service and result, very highly recommended. Thank you Websters Lawyers.

Rafael, Davoren Park

I have high expectations and they were met. Websters service was swift, courteous, professional and met the agreed budget. I will recommend Websters to my family, friends and colleagues. Thank you.

Peter, Forestville

I would recommend Websters Lawyers, especially for [my lawyer's] dedication and exemplary attitude and advice. She is the epitome of a good lawyer. The service was impeccable.

Pamela, West Lakes

[My lawyer] was very professional and I was made comfortable to understand.

Gregory, Penfield

I was very pleased with the end result and how well [my lawyer] conducted herself.

Sonya, Glanville

Very professional.

Jesse, Morphett Vale

[My lawyer] has been very prompt , reliable and provided a high level of communication.

Peter, Parkside

My experience at Websters was very positive. The stress was taken from me and I could not be happier with the outcome. [My lawyer] at Websters was professional, personable, available and caring. Thank you for making the experience stress free.

Magda, Holden Hill

Found my lawyer upfront and reliable – I would highly recommend Websters Lawyers.

Lee, Evanston Park

 

Top bunch of solicitors and admin staff. Very friendly and to the point service.

Bradley, Hallett Cove

Websters Lawyers were very professional in their service, I would be happy to recommend them.

Carole, Tea Tree Gully

We would not hesitate in recommending Websters for any legal matter. They are professional and courteous at all times and call back when they say they will.

David and Dianne, Lockleys

 

I fully recommend Websters Lawyers. This was the 3rd time myself & my family have used Websters Lawyers. In these stressful times we have found them to answer and guide us through the process needed to accomplish the legal requirements in a timely and courteous manner.

Dianne, Lynton

Solid, to the point, no hustle. Highly recommend.

George, Windsor Gardens

Contact us

Adelaide Office :
T: ( 08 ) 8231 1363
F: ( 08 ) 8231 5529

Ridgehaven Office :
T: ( 08 ) 8395 8000
F: ( 08 ) 8395 8222

Smithfield Office :
T: ( 08 ) 8487 0150
F: ( 08 ) 8395 8222

© Copyright WebstersLawyers.com 2017 All Rights Reserved
Website By A to Z Marketing

The post What happens when a will is made in ‘suspicious circumstances’? appeared first on Websters Lawyers Adelaide, SA.

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Man sues police after losing his job https://websterslawyers.com.au/news/police-sued-after-man-loses-job/ Sun, 25 Aug 2019 00:38:27 +0000 https://websterslawyers.com.au/?p=3533 Click to Call Testimonials Find an Expert Man Sues Police After Losing His Job A 62 year old man is suing the South Australian Police Commissioner for lost earnings and ‘psychological injury’ after he was fired from his job when the employer received the results of a ‘police check’ that incorrectly said the man had…

The post Man sues police after losing his job appeared first on Websters Lawyers Adelaide, SA.

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Man Sues Police After Losing His Job

A 62 year old man is suing the South Australian Police Commissioner for lost earnings and ‘psychological injury’ after he was fired from his job when the employer received the results of a ‘police check’ that incorrectly said the man had been convicted of sexual intercourse with a person under 12.

man sues police

Employment Terminated

In 2011 the man obtained a job with a mining company and was required to provide a National Police Certificate.  He requested the certification from SAPOL and authorised for it to be sent directly to the employer.  When it was received, it contained reference to a conviction in 1978 for ‘engaging in unlawful sexual intercourse with a person under 12’.  The man had never been convicted of that offence but his employment was terminated on the ground that he had failed to declare all disclosable offences on his pre-employment statutory declaration.

Although the National Police Certificate was issued by the Australian Federal Police, the source of the incorrect information was a mistaken entry in SAPOL’s system.  The man asserts that the SAPOL Commissioner negligently breach a duty of care by failing to make adequate checks with the records held by both SAPOL and the Courts.

He has claimed damages for personal injury after having been diagnosed with ‘anxiety/depression’ along with loss of income and reduced earning capacity due to the termination of his employment.

The SAPOL Commissioner was initially successful in having the man’s claim struck out on the basis that there could be no duty of care owed to the man by police in these circumstances.  The man then appealed that decision to the Supreme Court.

Supreme Court

The Supreme Court had to consider the circumstances under which police might have a duty of care.  For example, when they are searching for a serial killer there is no duty to anyone who might become a victim of that person, otherwise the police would be forced to compromise their investigation or too quickly arrest the wrong person.  On the other hand, there is no question that a police officer, like any person, may be liable to someone who is injured as a direct result of the officer’s acts or omissions (such as with an assault, unlawful arrest or wrongful imprisonment).

Job Loss

In this case, the fact that the police have voluntarily undertaken to provide police certificates for a fee without any legal requirement for them to do so might be argued to amount to an assumption of responsibility on the part of the SAPOL Commissioner.  The Court made the point that anyone applying for a police clearance has a limited ability to protect themselves from a negligent misstatement in the certificate and there is a real risk of losing their employment as a result.  The harm a person would suffer in losing their job, or the chance to get a job, is as obvious and probable as it is significant.  These circumstances strongly support the imposition of a duty of care.

The Supreme Court granted the man’s appeal against the dismissal of his case and granted him permission to continue with the claim.

Of course, even if the police are liable in negligence for the error in the clearance certificate that isn’t the end of the case.  Although the man was never convicted of the offence that appeared on the certificate, he did have an historical sexual offence from the 1970s when he was convicted for intercourse with a person under 17 when he was 21 years told.  He had received only a fine of $80 and the Judge who had sentenced him remarked that the victim of the offence willingly consented to intercourse.  Whether that is relevant to the question of what was and should have been disclosed on the man’s pre-employment statutory declaration is no doubt something that will be considered when the case is next heard.

This case is a further consideration of those circumstances in which a government department might be liable for damages in negligence for failing to take reasonable care.  Anyone who has experienced injury or loss as a result of a mistake made by a government department can speak to a lawyer in a free consultation at Websters Lawyers.  Simply call 8231 1363 or send through a request for contact here.

Jennings v Police [2019] SASCFC 93

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Testimonials

Having such a short time frame I was very impressed with the outcome made by [my solicitor]. Excellent and timely manner

Sebastian

Kurralta Park

Very professional mannerism and overall great outcome was delivered by Websters Lawyers.

Nicholas

West Ryde NSW

Helpful, explained fully, patient, excellent service.

Kerry

Ridgehaven

Patient and helpful in explaining the process.

Brian

Ridgehaven

Call Websters Lawyers for a most professional and friendly service. All understanding with [my solicitors] and the reception staff. Thank you so much.

Christine

Magill

Making my will was effortless on my part, with everything explained clearly. Well done to all.

Christina

Highbury

Great service, professional, explains things clearly, definitely recommend Websters Lawyers.

Garth

Upper Hermitage

Patient, professional, good communication about procedures and probable outcomes.

Jeffrey

Brompton

Thank you for all your work over the course of the case. You [both] were always very approachable and I appreciated your understanding and professionalism in all areas.

Alexis

Christie Downs

All in all my experience was great. Thank you for your time and expertise.

Christina

Seacombe Gardens

My matter was dealt with efficiently and was explained in an understandable language. A pleasant experience.

Mary

Ridgehaven

Practical and very helpful. Reasons and explanations given where needed

John

Ridgehaven

I stumbled across Websters in the Yellow Pages and I rang, explained my situation and immediately they took my case on. Greatly appreciate their services.

Diane 

Ridgehaven

The service from Websters Lawyers was outstanding. [My solicitor] was caring, had patience and was very professional. Wonderful personality.

Julie

Yorketown

[My solicitor] made everything so simple to understand. [The receptionist] was wicked too, would recommend them anytime. Level of entire service was outstanding.

Craig

Golden Grove

 

I had dealings with Websters over 20 years ago. They were my first choice when I recently needed legal advice. Both legal and office staff were professional, courteous and accessible at all times. Everything was explained up front in a clear and concise manner. I would not hesitate to recommend their services.

Rod

Dernancourt

It has truly been a pleasure communicating with you throughout the process. I really appreciate your patient and speedy replies to my questions and requests. You were always able to provide an easily understood response and this helped me deal with the process. Your friendly and positive manner encouraged me to seek your advice.

Kathleen

Battery Hill QLD

[My lawyer's] service was prompt and efficient with all questions explained clearly with all our requests carried out within the laws. Overall service was very satisfactory.

John

Wynn Vale

[My lawyer] was excellent. 

Gordon

Glengowrie

Excellent service. Professional. Clear advice and instructions. Prompt actions. Overall 10/10!

Phillip

Ingle Farm

Overall, I was happy with my outcome and my lawyer, would definitely recommend [my lawyer].

Janet

Adelaide

[My solicitor] was excellent at helping us through preparing our wills which were particularly challenging as they involved assets in multiple countries. She was professional and knowledgeable and spent time tailoring the wills to our needs.

Jonathan

Greenwith

[My solicitor] was very helpful, respectful and polite. She made sure I understood the process and documentation of our wills.

Rachel

Greenwith

Professional. Smooth Transaction. 

Luke

Largs North

I found the whole experience from Receptionist to Solicitor excellent. They completely put us at our ease.

Ethel

Smithfield

This was a new experience for us and didn’t have a clue what to do. [Our solicitor] on our first visit put us at ease, explained what will happen, pointed out there was a strong case. [Our solicitor] was genuine in her approach, kept us well informed, explained actions several times with patience and understanding. Overall very happy with the service we received.

Stephen

Elizabeth Vale

[My lawyer] was very reassuring in her approach to my case. I felt that every possibility in terms of evidence to provide and possible outcomes were explained to me, The result of the case was the best possible outcome I could have expected.

David, Belair

 

With no previous dealing with the criminal justice system, [our solicitor] gave us excellent advice and guided us through a nightmare to achieve a just and correct outcome. [Our lawyer] was both forthright and compassionate in her handling of our case.

Malcolm, Belair

[My lawyer] explained all the legal terms in language I could understand – she was very easy to talk to.

Cameron, Munno Para

I felt confident knowing my matter was in good hands. Very professional!

Shravan, Christie Downs

Initial phone call was fantastic and the role of an executor was fully explained.

Penny, Henley Beach

The service I received was efficient and promptly finalised. The solicitor clearly explained the details and I was happy with how easy it was.

Dale, Fairview Park

[My lawyer] was exactly the lawyer I needed in a serious matter. The outcome was as predicted which was a fantastic result. I received prompt professional and personal service at all times. Capable and supportive in a very stressful period.

Jason, Munno Para West

I had any of my concerns answered to my satisfaction and understanding.

Valda, Ingle Farm

[My lawyer] is an excellent professional lawyer who assisted in achieving a great positive outcome/result. I sincerely thank you and your great staff for your assistance and guidance throughout my claim. Would highly recommend [my lawyer], staff and Websters Lawyers. Kept fully informed and guided, professionally throughout the matter.

Rena, Northgate

Our work was dealt with very efficiently and speedily. Our lawyer was very professional, at the same time as being approachable. Communication was great.

Christina, Highbury

My experience with Websters Lawyers was far beyond what I expected. From the moment I spoke to [my lawyer] she made me feel very comfortable and eased my stress. In my case I had a court appearance the day before we were scheduled to fly to Spain, Considering my first appointment with her was only 2 weeks before the court hearing, she was able to obtain the police statement and thoroughly work on my case within that limited time frame. She was very knowledgeable, understanding and confident which greatly relieved so much pressure from me and my family. At court, she explained everything thoroughly and advised me of all the possible outcomes. Price, service and result, very highly recommended. Thank you Websters Lawyers.

Rafael, Davoren Park

I have high expectations and they were met. Websters service was swift, courteous, professional and met the agreed budget. I will recommend Websters to my family, friends and colleagues. Thank you.

Peter, Forestville

I would recommend Websters Lawyers, especially for [my lawyer's] dedication and exemplary attitude and advice. She is the epitome of a good lawyer. The service was impeccable.

Pamela, West Lakes

[My lawyer] was very professional and I was made comfortable to understand.

Gregory, Penfield

I was very pleased with the end result and how well [my lawyer] conducted herself.

Sonya, Glanville

Very professional.

Jesse, Morphett Vale

[My lawyer] has been very prompt , reliable and provided a high level of communication.

Peter, Parkside

My experience at Websters was very positive. The stress was taken from me and I could not be happier with the outcome. [My lawyer] at Websters was professional, personable, available and caring. Thank you for making the experience stress free.

Magda, Holden Hill

Found my lawyer upfront and reliable – I would highly recommend Websters Lawyers.

Lee, Evanston Park

 

Top bunch of solicitors and admin staff. Very friendly and to the point service.

Bradley, Hallett Cove

Websters Lawyers were very professional in their service, I would be happy to recommend them.

Carole, Tea Tree Gully

We would not hesitate in recommending Websters for any legal matter. They are professional and courteous at all times and call back when they say they will.

David and Dianne, Lockleys

 

I fully recommend Websters Lawyers. This was the 3rd time myself & my family have used Websters Lawyers. In these stressful times we have found them to answer and guide us through the process needed to accomplish the legal requirements in a timely and courteous manner.

Dianne, Lynton

Solid, to the point, no hustle. Highly recommend.

George, Windsor Gardens

Contact us

Adelaide Office :
T: ( 08 ) 8231 1363
F: ( 08 ) 8231 5529

Ridgehaven Office :
T: ( 08 ) 8395 8000
F: ( 08 ) 8395 8222

Smithfield Office :
T: ( 08 ) 8487 0150
F: ( 08 ) 8395 8222

© Copyright WebstersLawyers.com 2017 All Rights Reserved
Website By A to Z Marketing

The post Man sues police after losing his job appeared first on Websters Lawyers Adelaide, SA.

]]>
What’s mine is yours – transferring a tax debt in a divorce https://websterslawyers.com.au/family-law/whats-mine-is-yours-transferring-a-tax-debt-in-a-divorce/ Wed, 14 Aug 2019 01:50:54 +0000 https://websterslawyers.com.au/?p=3502 Click to Call Testimonials Find an Expert What’s mine is yours – transferring a tax debt in a divorce When a couple separate, what happens if one of them has a tax debt? This can be a real issue especially if a Family Trust or other financial arrangement is used to distribute income earned by…

The post What’s mine is yours – transferring a tax debt in a divorce appeared first on Websters Lawyers Adelaide, SA.

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What’s mine is yours – transferring a tax debt in a divorce

When a couple separate, what happens if one of them has a tax debt? This can be a real issue especially if a Family Trust or other financial arrangement is used to distribute income earned by one party to the relationship to the other. As a general rule of thumb, debts incurred by parties to a domestic relationship are considered to be debts of the relationship and are paid out of the joint asset pool in a property settlement.

Tax_Debt_Divorce

That being said, you can never remain too complacent and assume that the Court will not change its practice based on what it considers equitable (or fair) in any given case. In the 2018 case of Snipper & James and Anor, a taxation debt was deemed a completely separate matter from the joint asset pool. Though the wife was awarded 71% of the relationship’s assets, she was then required to make payment of 10% of her husband’s taxation evasion debt (equalling approximately $600,000.00) as it was found that a significant portion of the debt had been incurred during the course of the relationship and the wife had benefited from the earnings pertaining to that debt.

The Court also has the power to simply substitute one party of the relationship for another in relation to tax debts, and require that the substituted party be liable for the debt.

This was made clear in case of Commonwealth of Australia v Tomaras & Ors, where an order was made that a husband in a property settlement could be substituted for his wife in relation to a tax debt of over $250,000.00.

In short, the parties to the relationship had been married for 17 years, during which time the wife had been issued with various tax assessments from the Commissioner of Taxation for income tax and the Medicare Levy. The wife failed to pay the tax and raised no objection to the assessments. The parties separated in 2009 and the Commissioner obtained a default judgement against the wife in respect of her unpaid tax. The wife continued to default in her tax payments, and in November 2013, the husband became bankrupt. One month later the wife commenced proceedings and sought Orders that the husband:

  1. Be substituted as the party responsible for any income tax assessed for the 2009 financial year; and

  2. Undertake all actions necessary to release and indemnify the wife against any liability present or contingent including tax and bank liabilities, in respect of the husband or a related party of the husband.

The Full Court of the Family Court decided that it had the ability to substitute the husband for the wife in relation to the tax debt, though such an order should only be made where it is “just and equitable to do so”. In determining whether it would be appropriate to substitute the husband for the wife in relation to the debt the Court considered:

  1. That if the more wealthy spouse became liable for the debt it may increase the prospects of recovery; and

  2. That if both spouses became liable it would again increase the prospects of the Commissioner’s recovery.

The Commission made an appeal to the High Court against this judgement which was ultimately dismissed.

So Who Gets The Tax Debt?

The fallout of Tomaras is that parties to a relationship should be aware that the Court has the ability to shift tax obligations to the financially stronger party (even after the property settlement has occurred) if the debt is incurred during the relationship. Tax liabilities arising out of arrangements such as discretionary trust distributions may be also be affected, provided again that they were incurred during the relationship.

If you have any concerns or questions regarding the taxation liabilities in your current or future separation, Websters Lawyers urge you to seek advice from an experienced family law solicitor. You can contact us on 8231 1363 or submit an inquiry on our website here.

Snipper & James and Anor [2018] FamCA 7
Commonwealth of Australia v Tomaras & Ors [2018] HCA 62

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LOCAL LAWYERS FOR LOCAL NEEDS

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Testimonials

Having such a short time frame I was very impressed with the outcome made by [my solicitor]. Excellent and timely manner

Sebastian

Kurralta Park

Very professional mannerism and overall great outcome was delivered by Websters Lawyers.

Nicholas

West Ryde NSW

Helpful, explained fully, patient, excellent service.

Kerry

Ridgehaven

Patient and helpful in explaining the process.

Brian

Ridgehaven

Call Websters Lawyers for a most professional and friendly service. All understanding with [my solicitors] and the reception staff. Thank you so much.

Christine

Magill

Making my will was effortless on my part, with everything explained clearly. Well done to all.

Christina

Highbury

Great service, professional, explains things clearly, definitely recommend Websters Lawyers.

Garth

Upper Hermitage

Patient, professional, good communication about procedures and probable outcomes.

Jeffrey

Brompton

Thank you for all your work over the course of the case. You [both] were always very approachable and I appreciated your understanding and professionalism in all areas.

Alexis

Christie Downs

All in all my experience was great. Thank you for your time and expertise.

Christina

Seacombe Gardens

My matter was dealt with efficiently and was explained in an understandable language. A pleasant experience.

Mary

Ridgehaven

Practical and very helpful. Reasons and explanations given where needed

John

Ridgehaven

I stumbled across Websters in the Yellow Pages and I rang, explained my situation and immediately they took my case on. Greatly appreciate their services.

Diane 

Ridgehaven

The service from Websters Lawyers was outstanding. [My solicitor] was caring, had patience and was very professional. Wonderful personality.

Julie

Yorketown

[My solicitor] made everything so simple to understand. [The receptionist] was wicked too, would recommend them anytime. Level of entire service was outstanding.

Craig

Golden Grove

 

I had dealings with Websters over 20 years ago. They were my first choice when I recently needed legal advice. Both legal and office staff were professional, courteous and accessible at all times. Everything was explained up front in a clear and concise manner. I would not hesitate to recommend their services.

Rod

Dernancourt

It has truly been a pleasure communicating with you throughout the process. I really appreciate your patient and speedy replies to my questions and requests. You were always able to provide an easily understood response and this helped me deal with the process. Your friendly and positive manner encouraged me to seek your advice.

Kathleen

Battery Hill QLD

[My lawyer's] service was prompt and efficient with all questions explained clearly with all our requests carried out within the laws. Overall service was very satisfactory.

John

Wynn Vale

[My lawyer] was excellent. 

Gordon

Glengowrie

Excellent service. Professional. Clear advice and instructions. Prompt actions. Overall 10/10!

Phillip

Ingle Farm

Overall, I was happy with my outcome and my lawyer, would definitely recommend [my lawyer].

Janet

Adelaide

[My solicitor] was excellent at helping us through preparing our wills which were particularly challenging as they involved assets in multiple countries. She was professional and knowledgeable and spent time tailoring the wills to our needs.

Jonathan

Greenwith

[My solicitor] was very helpful, respectful and polite. She made sure I understood the process and documentation of our wills.

Rachel

Greenwith

Professional. Smooth Transaction. 

Luke

Largs North

I found the whole experience from Receptionist to Solicitor excellent. They completely put us at our ease.

Ethel

Smithfield

This was a new experience for us and didn’t have a clue what to do. [Our solicitor] on our first visit put us at ease, explained what will happen, pointed out there was a strong case. [Our solicitor] was genuine in her approach, kept us well informed, explained actions several times with patience and understanding. Overall very happy with the service we received.

Stephen

Elizabeth Vale

[My lawyer] was very reassuring in her approach to my case. I felt that every possibility in terms of evidence to provide and possible outcomes were explained to me, The result of the case was the best possible outcome I could have expected.

David, Belair

 

With no previous dealing with the criminal justice system, [our solicitor] gave us excellent advice and guided us through a nightmare to achieve a just and correct outcome. [Our lawyer] was both forthright and compassionate in her handling of our case.

Malcolm, Belair

[My lawyer] explained all the legal terms in language I could understand – she was very easy to talk to.

Cameron, Munno Para

I felt confident knowing my matter was in good hands. Very professional!

Shravan, Christie Downs

Initial phone call was fantastic and the role of an executor was fully explained.

Penny, Henley Beach

The service I received was efficient and promptly finalised. The solicitor clearly explained the details and I was happy with how easy it was.

Dale, Fairview Park

[My lawyer] was exactly the lawyer I needed in a serious matter. The outcome was as predicted which was a fantastic result. I received prompt professional and personal service at all times. Capable and supportive in a very stressful period.

Jason, Munno Para West

I had any of my concerns answered to my satisfaction and understanding.

Valda, Ingle Farm

[My lawyer] is an excellent professional lawyer who assisted in achieving a great positive outcome/result. I sincerely thank you and your great staff for your assistance and guidance throughout my claim. Would highly recommend [my lawyer], staff and Websters Lawyers. Kept fully informed and guided, professionally throughout the matter.

Rena, Northgate

Our work was dealt with very efficiently and speedily. Our lawyer was very professional, at the same time as being approachable. Communication was great.

Christina, Highbury

My experience with Websters Lawyers was far beyond what I expected. From the moment I spoke to [my lawyer] she made me feel very comfortable and eased my stress. In my case I had a court appearance the day before we were scheduled to fly to Spain, Considering my first appointment with her was only 2 weeks before the court hearing, she was able to obtain the police statement and thoroughly work on my case within that limited time frame. She was very knowledgeable, understanding and confident which greatly relieved so much pressure from me and my family. At court, she explained everything thoroughly and advised me of all the possible outcomes. Price, service and result, very highly recommended. Thank you Websters Lawyers.

Rafael, Davoren Park

I have high expectations and they were met. Websters service was swift, courteous, professional and met the agreed budget. I will recommend Websters to my family, friends and colleagues. Thank you.

Peter, Forestville

I would recommend Websters Lawyers, especially for [my lawyer's] dedication and exemplary attitude and advice. She is the epitome of a good lawyer. The service was impeccable.

Pamela, West Lakes

[My lawyer] was very professional and I was made comfortable to understand.

Gregory, Penfield

I was very pleased with the end result and how well [my lawyer] conducted herself.

Sonya, Glanville

Very professional.

Jesse, Morphett Vale

[My lawyer] has been very prompt , reliable and provided a high level of communication.

Peter, Parkside

My experience at Websters was very positive. The stress was taken from me and I could not be happier with the outcome. [My lawyer] at Websters was professional, personable, available and caring. Thank you for making the experience stress free.

Magda, Holden Hill

Found my lawyer upfront and reliable – I would highly recommend Websters Lawyers.

Lee, Evanston Park

 

Top bunch of solicitors and admin staff. Very friendly and to the point service.

Bradley, Hallett Cove

Websters Lawyers were very professional in their service, I would be happy to recommend them.

Carole, Tea Tree Gully

We would not hesitate in recommending Websters for any legal matter. They are professional and courteous at all times and call back when they say they will.

David and Dianne, Lockleys

 

I fully recommend Websters Lawyers. This was the 3rd time myself & my family have used Websters Lawyers. In these stressful times we have found them to answer and guide us through the process needed to accomplish the legal requirements in a timely and courteous manner.

Dianne, Lynton

Solid, to the point, no hustle. Highly recommend.

George, Windsor Gardens

Contact us

Adelaide Office :
T: ( 08 ) 8231 1363
F: ( 08 ) 8231 5529

Ridgehaven Office :
T: ( 08 ) 8395 8000
F: ( 08 ) 8395 8222

Smithfield Office :
T: ( 08 ) 8487 0150
F: ( 08 ) 8395 8222

© Copyright WebstersLawyers.com 2017 All Rights Reserved
Website By A to Z Marketing

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Scooter injury at home leads to workcover claim https://websterslawyers.com.au/news/man-injured-in-scooter-accident-at-home-claims-workcover/ Wed, 31 Jul 2019 00:47:13 +0000 https://websterslawyers.com.au/?p=3539 Click to Call Testimonials Find an Expert Scooter Injury At Home Leads To Workcover Claim A 41 year old man who broke his elbow when he fell off a scooter while playing at home with his son has been awarded workers compensation for the injury.  This recent case in the SA Employment Tribunal looks at…

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Scooter Injury At Home Leads To Workcover Claim

A 41 year old man who broke his elbow when he fell off a scooter while playing at home with his son has been awarded workers compensation for the injury.  This recent case in the SA Employment Tribunal looks at the question of how and when an injury that doesn’t happen at work can still be regarded as a work injury.

elbow pain

It’s probably no surprise that according to the Return to Work Act, to be entitled to workers compensation for an injury it must ‘arise from employment.’  So how could this injury at home meet that test?  Can an injury at home still be a work injury?

The Original Workers Compensation Claim

The man was originally injured at work in 2009 while lifting a heavy air pump when he felt a twinge and sharp pain in his lower back.  He had some time off of work but returned to unrestricted duties.  Later he aggravated his back injury at work and made a further claim for compensation which was accepted.  After then he continued on light duties until he was made redundant in 2011.  Following this he obtained work as a part-time computer technician, initially working 15 hours a week but increasing that to 20 hours per week.

Ever since the original injury in 2009 the man had experienced muscle spasms in his lower back.  These would range from minor spasms to severe ones that would immobilise him for hours or days.  On the advice of a neurosurgeon he underwent a lumbar spine fusion in mid-2016 after which he was off of work for three months.  This was successful in preventing the severe spasms but he continued to have minor back spasms two or three times a week following the surgery.

The fracture to his elbow occurred in January 2017 when he was at home playing in the backyard with his son.  They were both riding scooters on an area of concrete when he experienced a minor low back spasm which caused him to lose balance and fall off of the scooter onto the concrete.  He landed on his outstretched right arm and sustained a fractured radial head.

The workers compensation insurer rejected the man’s claim on the basis that it was not a work injury.  They argued that the man was injured while involved in a purely recreational activity which had nothing to do with his employment.

When Can Workers Compensation Be Claimed?

To be compensated for a physical injury under the workers compensation scheme the injury must ‘arise from employment’.  The Return to Work Act says that an injury arises out of employment if it ‘arises out of or in the course of employment and the employment was a significant contributing cause of the injury.’

It was necessary then for the man to provide that his right elbow injury arose out of or in the course of his employment, and that his employment was a significant contributing cause of the elbow injury.

In a situation where there has been an aggravation, acceleration, exacerbation, deterioration or recurrence of a prior physical injury, then employment must be a significant contributing cause of that occurring.

Even though the elbow injury did not occur in the course of the man’s employment, the injury still arose out of that employment as there was a strong causal connection between the employment and the injury.  As a consequence of the 2009 work injury to his lower back the man experienced lower back spasms.  A lower back muscle spasm happened while he was riding the scooter and caused him to lose balance and fall.  For the same reasons it was also held that the employment was a significant contributing cause of the right elbow fracture.

The man was therefore entitled to compensation for lost earnings along with medical expenses and potentially a lump sum payment for permanent disability if his injury resulted in a whole person impairment of 5% or more.

This case shows how a injury that happens at work can have lasting effects and why it is important to always consider whether there is a connection between that earlier injury and any subsequent event.  Anyone who suffers an aggravation or deterioration of a prior work injury should obtain advice from an expert workers compensation lawyer, especially if as in this case there is a further injury as a result.  Websters Lawyers offer a free initial interviewwith a specialist in workers compensation law.  To arrange to discuss your case call 8231 1363 or send through a request for a call on our contact page.

Calvert v Return to Work Corporation of South Australia [2019] SAET 144

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Elizabeth Vale

[My lawyer] was very reassuring in her approach to my case. I felt that every possibility in terms of evidence to provide and possible outcomes were explained to me, The result of the case was the best possible outcome I could have expected.

David, Belair

 

With no previous dealing with the criminal justice system, [our solicitor] gave us excellent advice and guided us through a nightmare to achieve a just and correct outcome. [Our lawyer] was both forthright and compassionate in her handling of our case.

Malcolm, Belair

[My lawyer] explained all the legal terms in language I could understand – she was very easy to talk to.

Cameron, Munno Para

I felt confident knowing my matter was in good hands. Very professional!

Shravan, Christie Downs

Initial phone call was fantastic and the role of an executor was fully explained.

Penny, Henley Beach

The service I received was efficient and promptly finalised. The solicitor clearly explained the details and I was happy with how easy it was.

Dale, Fairview Park

[My lawyer] was exactly the lawyer I needed in a serious matter. The outcome was as predicted which was a fantastic result. I received prompt professional and personal service at all times. Capable and supportive in a very stressful period.

Jason, Munno Para West

I had any of my concerns answered to my satisfaction and understanding.

Valda, Ingle Farm

[My lawyer] is an excellent professional lawyer who assisted in achieving a great positive outcome/result. I sincerely thank you and your great staff for your assistance and guidance throughout my claim. Would highly recommend [my lawyer], staff and Websters Lawyers. Kept fully informed and guided, professionally throughout the matter.

Rena, Northgate

Our work was dealt with very efficiently and speedily. Our lawyer was very professional, at the same time as being approachable. Communication was great.

Christina, Highbury

My experience with Websters Lawyers was far beyond what I expected. From the moment I spoke to [my lawyer] she made me feel very comfortable and eased my stress. In my case I had a court appearance the day before we were scheduled to fly to Spain, Considering my first appointment with her was only 2 weeks before the court hearing, she was able to obtain the police statement and thoroughly work on my case within that limited time frame. She was very knowledgeable, understanding and confident which greatly relieved so much pressure from me and my family. At court, she explained everything thoroughly and advised me of all the possible outcomes. Price, service and result, very highly recommended. Thank you Websters Lawyers.

Rafael, Davoren Park

I have high expectations and they were met. Websters service was swift, courteous, professional and met the agreed budget. I will recommend Websters to my family, friends and colleagues. Thank you.

Peter, Forestville

I would recommend Websters Lawyers, especially for [my lawyer's] dedication and exemplary attitude and advice. She is the epitome of a good lawyer. The service was impeccable.

Pamela, West Lakes

[My lawyer] was very professional and I was made comfortable to understand.

Gregory, Penfield

I was very pleased with the end result and how well [my lawyer] conducted herself.

Sonya, Glanville

Very professional.

Jesse, Morphett Vale

[My lawyer] has been very prompt , reliable and provided a high level of communication.

Peter, Parkside

My experience at Websters was very positive. The stress was taken from me and I could not be happier with the outcome. [My lawyer] at Websters was professional, personable, available and caring. Thank you for making the experience stress free.

Magda, Holden Hill

Found my lawyer upfront and reliable – I would highly recommend Websters Lawyers.

Lee, Evanston Park

 

Top bunch of solicitors and admin staff. Very friendly and to the point service.

Bradley, Hallett Cove

Websters Lawyers were very professional in their service, I would be happy to recommend them.

Carole, Tea Tree Gully

We would not hesitate in recommending Websters for any legal matter. They are professional and courteous at all times and call back when they say they will.

David and Dianne, Lockleys

 

I fully recommend Websters Lawyers. This was the 3rd time myself & my family have used Websters Lawyers. In these stressful times we have found them to answer and guide us through the process needed to accomplish the legal requirements in a timely and courteous manner.

Dianne, Lynton

Solid, to the point, no hustle. Highly recommend.

George, Windsor Gardens

Contact us

Adelaide Office :
T: ( 08 ) 8231 1363
F: ( 08 ) 8231 5529

Ridgehaven Office :
T: ( 08 ) 8395 8000
F: ( 08 ) 8395 8222

Smithfield Office :
T: ( 08 ) 8487 0150
F: ( 08 ) 8395 8222

© Copyright WebstersLawyers.com 2017 All Rights Reserved
Website By A to Z Marketing

The post Scooter injury at home leads to workcover claim appeared first on Websters Lawyers Adelaide, SA.

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