21 OCTOBER 2016

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Save our CTP

29 JULY 2016

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Gifts before marriage

20 JULY 2016

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Be careful of your lie

22 APRIL 2016

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The rights of injured workers in NSW have been steadily and dramatically eroded since 2001. The NSW workers compensation system is now at a point where it is acknowledged even by insurers to be unfair, capricious and overly complicated. This is all in the context of the WorkCover fund being seriously in surplus and with no tangible benefit being returned to employers in the form of reduced premiums. The answer is of course to privatise the system and return it to the way it was prior to 1987 and the introduction of the Workers Compensation Act. Unfortunately there are few votes at stake and it will take a government with true foresight and courage to implement the necessary reforms.

That said there remains one small beacon of light for a particular class of NSW injured workers, those being people who have received section 66 lump sum compensation under the Table of Disabilities or the Whole Person Impairment tables prior to June 2012. Demonstrating the random and fickle nature of the scheme, only workers who claimed or received lump sum benefits prior to June 2012 are entitled to bring a further claim for deterioration in their condition.

Any worker who fall into this category is entitled to bring a claim even if the insurer or WorkCover scheme agent has purported to “finalise” or close their claim. I am able to advise workers of their legal position and entitlements in my role as an accredited Workers Compensation Independent Review Office Approved Legal Services Provider.

24 MARCH 2016

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I recently had a client seek my advice regarding an order the Police made under the Crimes (Forensic Procedures) Act 2000 (“the Act”).

The Act enables the Police to “backcapture” DNA, that is, request an individual undergo a forensic procedure to obtain a DNA sample for inclusion on a national database if that individual has previously served a gaol sentence for a serious indictable offence.

Immediately, questions about issues of privacy and appropriateness are raised. Should an individual, who, in this case, had not had any dealings with the police for a period of 8 years be subject to such a procedure? Is it in the public interest to obtain DNA from past offenders or does it go against a basic human right?

The Act does not specifically state if the individual must be a current suspect of crime but the Second Reading Speech given in the Legislative Assembly in September 2006 does. It specifically states:

“…those who have finished their sentences, have been fully rehabilitated, and pose no further risk to society will not be affected. DNA backcapture laws will only require a former serious offender to provide a sample when that person is charged with a fresh indictable offence.”

Interestingly, this was not how the Police interpreted the Act and the application was made. I was able to have the application dismissed by the Court.

One might question in what circumstances an application would be granted. Most probably the Police would need to have cogent evidence that the individual is suspected of involvement in further serious offending.

18 MARCH 2016

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The Courts recognise that when a spouse dies, it is not always enough for the family home to be left to the surviving spouse by way of a life estate.

The idea of a life estate – the right to occupy and use the property during one’s life time – meets with difficulties, particularly in this modern world where people are living longer and more often requiring alternative accommodation in their later years.

A “Crisp order”, like the kind made by Justice Holland in Crisp v Burns Philp Trustee Company Ltd (NSWSC, 18 December 1979, unreported) deals with this situation. Generally speaking, a Crisp order provides a spouse with not only a life estate in the property but also the rights to the property itself. This means a spouse can sell the property should the need arise for them to secure more appropriate accommodation, such as in a retirement village or nursing home. It aims to give the spouse more flexibility in their accommodation options and confers upon them a ‘portable’ life estate.

Last week, the NSW Supreme Court decided in Paradisis v Kekatos as executor of the estate of the Late John Paradisis [2016] NSWSC 220 that a Crisp order should apply. Justice McDougall found that the Plaintiff, who was the spouse of the deceased for 28 years, had been left without adequate provision for proper maintenance and advancement in life through the provision of a life estate. He made a Crisp order with a monetary cap of $700,000 to ensure “changing circumstances in life can be met with a degree of support for exigencies which we all know may occur but which at present are no more than possibilities.”