Be careful of your lie

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Last month the Supreme Court ruled in the case of Oei v The Australian Golf Club [2016] NSWSC 846.

Dr Oei, a successful sports physician joined The Australian Golf Club in 2007, paying a $20,000 plus joining fee and yearly membership fees.

The Club alleged that on two occasions in 2015, Dr Oei was observed by other members to pick up and move his golf ball in order to improve his stance and lie.  In January 2016, the Club held a Disciplinary Hearing and found Dr Oei guilty of “conduct unbecoming of a member”.  They stated that he had breached the Rules of Golf and expelled him from the Club.

Dr Oei denied the alleged conduct.  He sought orders from the Court that would set aside the expulsion, or in the alternative, award him damages.  He pleaded that his “unbecoming conduct” was not scandalous, but merely trivial, and that the expulsion was unreasonable.

The Court decided that it could hear Dr Oei’s challenge to the Club’s decision.

Justice Sackar reviewed the Disciplinary Hearing evidence which focused on Dr Oei’s changing accounts of what happened.  He did not agree with Dr Oei’s assertion of inexperience and took a view that Dr Oei knew that what he was doing was contrary to the Rules of Golf.  He added “…it was open on the evidence… for the Board to determine that on the two occasions [Dr Oei] deliberately moved his ball in a manner contrary to the Rules so as to gain a playing advantage”.

The Supreme Court refused to intervene, stating it was reasonable for the Club to expel Dr Oei based on the evidence available.  Dr Oei’s claim was unsuccessful and was dismissed.

I’m sure there is an uncharitable joke to be made here about doctors playing golf; but I will refrain.

The possibility of life after death

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In April 2016, the Supreme Court of Queensland ruled in the fascinating case of Re Leith Dorene Patteson [2016] QSC 104.

The applicant, Ms Leith Patteson met Mr Tony Deane in August 2015.  They commenced a relationship in September 2015, shortly after which Mr Deane was diagnosed with a serious and rare blood disease.  The couple moved in together and in October 2015 they became engaged.  The Court heard that they were anxious to have a child together, trying to conceive in early 2016.  Their attempts to have a child were no secret among family and friends.

On 18 April 2016 Mr Deane attempted suicide.  He was discovered by Ms Patteson and transported to hospital where he was found to be brain dead.  His life support machine was turned off on 20 April 2016.

On 21 April 2016 Ms Patteson applied to the Court for orders authorising the removal of Mr Deane’s testes and any spermatozoa from his body and the provision of those to an IVF organisation.

A timely decision in the case was imperative given the fact that the testes and sperm must be removed and processed within 24 hours of death to remain viable.

The case came on before Justice Burns and he very urgently referred to the case of Gray [2000] QSC 390.  That case involved similar circumstances in which a wife applied for orders for removal of sperm after her 37 year old husband died unexpectedly in his sleep.  In this case it was held that, in the absence of specific powers granted by the Parliament, the Courts hold no right to interfere with a deceased body. The application was refused.

However, Justice Burns did not follow the earlier decision and allowed the orders.  His view was that allowing them would “permit mature reflection by Ms Patteson whether to proceed with the use of any extracted material and, if an application for use for the purposes of fertilisation is made, the orders proposed today will ensure that such an application will not be rendered futile through loss of viability of the sperm.”

This case shows that Australian Courts do have jurisdiction to make orders for the removal of sperm of deceased individuals.  It remains to be decided on a case by case basis if that material can be used for fertilisation.

Workers compensation a ‘tricky’ legal scheme, says lawyer

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Workers compensation a ‘tricky’ legal scheme, says lawyer

03 May 2016 • By Melissa Coade

Lawyers face two main challenges when wading into the complexity of workers compensation claims: a mastery of the facts and applying ever-changing laws, according to the director of Goldbergs Lawyers.

Over the course of his 30-year legal career, Michael Moore has witnessed an already “tricky area of law” become more complex. Mr Moore spoke to Lawyers Weekly about the challenges practitioners face grappling with claims for workers compensation in NSW.

“To properly deal with workers compensation claims there are two significant challenges; the first is to master the facts, including the medical evidence, and the second is to apply the correct law to the facts. Sounds trite, but given the multitude of legislative changes when and how an injury occurred greatly affects the potential outcomes.

“It has always been a tricky area of law and it’s more so these days,” Mr Moore said.

“The 1926 act was 74 sections and [about] 20 pages long. The new legislation has now morphed into something that runs into hundreds and hundreds of pages and two major pieces of legislation – and it has massive regulations attached to it as well, and on top of that it has WorkCover Guidelines, which have legislative impact in that they work like regulations.”

Mr Moore, who is an accredited personal injury specialist, also questioned the benefit of provisions that put a growing emphasis on rehabilitation.

“From the time I first went into practice, my job hasn’t become easier. I don’t think you would regard the present system as being more facilitating to workers beyond there being more emphasis on rehabilitation-type provisions.”

“Theoretically the idea is that the [workers compensation] legislation is much more of an administrative scheme that tries to get people back to work rather than have them litigate cases for lump sum compensation,” he added.

“That’s the theory – the practice, I don’t know how effective the rehabilitation [provisions] have been for injured workers. What often happens is that people are transferred to Department of Social Services (DSS) schemes rather than getting back to work.

“But the effectiveness of those changes, I can’t really comment on.”

Citing 2015 changes to the Workers Compensation Act 1987 (NSW), Mr Moore said it was important for lawyers to understand the new section 38. Before last year’s amendments, an injured worker was ineligible to receive weekly compensation beyond five years unless they were assessed as having ‘whole person impairment’ (WPI) greater than 30 per cent.

‘Workers with high needs’ and ‘workers with the highest needs’ are two new categories that the amended section defines. The new law attaches a WPI of 20 per cent and 30 per cent to each category respectively.

“[Now] a worker with ‘high needs’ does not have to satisfy the threshold tests under s 38(3) in relation to hours of work and income to be entitled to continued payments of weekly compensation after the end of the second entitlement period (the first 130 weeks),” Mr Moore explained.

“The combination of the changes referred to mean that it is much more likely that a worker with a WPI of greater than 20 per cent will be able to continue to receive weekly benefits under the act beyond five years and indeed beyond the first 130 weeks of incapacity,” he said.

“This is a much more generous position than previously where a worker with a WPI of 20 per cent would cease to be entitled to benefits under s 38 if the insurer assessed them as having work capacity and they had not obtained employment.”

Mr Moore is currently involved in a matter where an injured worker’s WPI is being contested. It is a case where the difference between an assessment of 20 or 21 per cent WPI can be significant, he said.

“The significance of my client’s case is that if he gets to 21 per cent WPI he would still have an entitlement to weekly compensation even if he was not working, which is otherwise one of the threshold tests under s 38,” he explained.

“Similarly, as [my client] has had extensive surgery but is presently working [they] may otherwise lose entitlements to have medical expenses paid in the future because the time period under s 59A would have expired.”

Mr Moore said his advice for lawyers grappling with the complexity of workers compensation claims was to gain more experience “as the law changes rapidly and is often not readily accessible”.

“I think much of the change in how lawyers approach cases is driven by the changes in the dispute resolution processes. There is less scope for detailed examination of evidence by the relevant tribunal. Good paperwork leads to a much better chance of success,” he added.

Mr Moore will deliver a presentation on legislative changes affecting workers compensation at a conference hosted by The College of Law in May.

Reference: https://www.lawyersweekly.com.au/news/18504-workers-compensation-a-tricky-legal-scheme-lawyer-says?utm_source=lawyersweekly&utm_campaign=lawyersweekly_Bulletin04_05_2016&utm_medium=email

One small beacon of light for NSW injured workers

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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.

To provide DNA or not provide DNA, that is the question.

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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.

The idea of a life estate

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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.”

The law requires you to keep your promises

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A 2014 decision of the Supreme Court in Bryant v Bryant [2014] NSWSC 374 concerned a dispute about ownership of a family home and whether or not a promise was made to transfer interest in the home.

The First and Second Plaintiffs were mother and son.  The Defendant was the father of the son and former husband of the mother.

The parties married in 1973 and purchased the property concerned in 1981.  They both actively worked, and made financial contributions to the home until 1984 when the father went to Queensland and the mother took over as the family’s sole breadwinner.  In 1986 the separation was formalised and in 2000 they were divorced.

After the separation, in 1992 and at other times, the mother claimed that the father orally promised that she could continue living at the property and that, upon their son reaching 21 years of age, the father would transfer his interest in the property to the son.  The son corroborated this evidence, saying that the father told him that the property would be his multiple times during his youth.  The mother also claimed she did not institute family law proceedings or pursue child support due to reliance on this promise.

The father admitted that it was his intention for the mother and son to live at the property and, if the son survived him and the mother, to leave the property to the son in his will.  The father denied any conversations regarding transfer of the property when the son reached 21 years of age.  Following a falling out between father and son, the father changed his mind and said he would not leave the property to his son.

Law

Justice Lindsay was satisfied that the mother’s conversations with the father occurred mostly as she recounted them.  In his assessment, Justice Lindsay said the father led and allowed the mother to believe that he would transfer his interest in the property to the son when he attained 21 years of age.  He said this was done in a calculated manner, to counter his obligation to provide maintenance and other financial support and called it “unconscionable for the [father] to resile from a promise, upon which he had induced the [mother] to rely”.

Justice Lindsay went on to discuss the principles governing estoppel in relation to a non-contractual promise to grant an interest in land, and confirmed an assurance or encouragement which creates an expectation that an interest will be granted is sufficient to give rise to the expectation that the promise will be made good.  He held that the Court should enforce a reasonable expectation which the father created or encouraged.

Decision

Justice Lindsay determined that the father held his interest in the property on trust for the son and ordered a transfer of his interest in the property to the son.

The claim was successful.

The “blameless” accident

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Injuries caused in a motor vehicle accident as a result of the negligence of another driver normally gives rise to an entitlement to compensation and damages. If you are a passenger in a vehicle of the driver of the not at fault vehicle or if you are a pedestrian hit by the at fault vehicle you can normally claim.

Sometimes however no one is to blame? For example, what if you are driving a motorcycle on a country road and you collide with a kangaroo? I have a case of this very type for a very unlucky man who sustained injuries that have left him unable to work and without proper use of his arm.

The District Court recently interpreted the “blameless” accident provisions of the Motor Accident Compensation Act 1999 (NSW).

In that case the motor vehicle accident occurred in 2011. The injured person was a driver of a motor vehicle that was in a single vehicle accident involving a tree that had fallen onto the road striking the motor vehicle and causing it to career out of control. As a result the driver sustained very serious injuries.

The Judge decided that there had been a motor vehicle accident and that it was a “blameless accident”. The injured person was awarded damages for his serious injuries.

The blameless accident provisions apply to drivers, passengers and pedestrians.

For all motor accidents there are strict time limits applying to lodgement of claims, usually within six months of the accident. If you wish to discuss your potential entitlements please call Toby Tancred.

Current High Court

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Some people say that the current High Court is one of the most conservative in the history of federation. Which is strange given that four of the current High Court Justices were appointed by ALP governments and only three by LNP governments. This could mean the appointing governments had no eye to the “politics” of the appointees, the appointees do not let their personal politics play any part in their decision making, or politics in Australia has moved a long way to the conservative side.
http://www.lawyersweekly.com.au/wig-chamber/news/17964-dissent-among-high-court-judges-at-historic-low

McIntyre v O’Regan [2015] NSWSC 1985

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A recent decision of the Supreme Court in McIntyre v O’Regan concerned two adult children arguing they were not left with an adequate provision from the deceased’s estate which totalled $1.1 million and that they should be entitled to further provision.

Judith McIntyre (“the deceased”) died in June 2014, aged 66 and was survived by her two children – Seth, 41 and Sarah, 34.  The deceased made a will in May 2014.  In her will she left:

  1. Half of her personal effects and $250,000 to Sarah;
  2. Half of her personal effects and $190,000 to Seth (she had previously given Seth $60,000 to assist him with court expenses regarding custody of his children);
  3. Household contents and right to use car for one year following her death to Ms Ingrid Langenbruch (she had also paid over $300,000 towards the purchase and improvement of a property registered in Ms Langenbruch’s name in which the deceased and Ms Langenbruch lived); and
  4. The balance to Mr Serge Benhayon (she had also paid $800,000 to Mr Benhayon to make improvements to a teaching hall on a property he owns).

The deceased was diagnosed with breast cancer in 2011.  Sarah claimed she took a leave of absence from her PhD course, changed her enrolment from full-time to part-time and visited regularly until the deceased’s death, provided emotional and practical support, took the deceased to medical appointments, did groceries and provided some domestic care until paid support was arranged.

Sarah and the deceased discussed her will – the deceased said her intention was to leave a large portion of her estate to the College of Universal Medicine started by Serge Benhayon. She told Sarah she would leave a sizeable amount to her and Seth to be used for deposits for a home but did not specify amounts.  The week before she died, the deceased said to Sarah “I want you to promise that you will not challenge my will”.  Sarah said she would not.

Sarah’s partner has a “debilitating chronic psychiatric disorder” and is dependent on Sarah.

Seth has a varied employment history.  He commenced a counselling course in 2002 but did not finish and has had largely construction and maintenance jobs since.  He currently earns $35,000 per annum.  He has two children aged 10 and 4 who live with their mother.   He has regular access to the children, contributes to their maintenance and rents an apartment in Petersham.  Seth has a self described “chronic back condition” which will eventually prevent him from doing physically demanding jobs.  He intends to finish his counselling degree.

Although Seth did not see the deceased a great deal in her final years, he said he spoke to her daily on the phone.  He knew of her decision to give the majority of her money to Universal Medicine and had told her he thought she should deal with her money how she had come into it herself – by inheritance.  Nonetheless, in their last conversation, Seth nodded when the deceased asked he respect her decision about her will.

Sarah and Seth put to the Court that their financial needs amounted to $600,000 and $715,000 respectively.  This included a $400,000 deposit for property for each of them, $60,000 for Mr Williams’ treatment and $35,000 for vacations in Sarah’s case, and $30,000 for a car and $130,000 for two years of fulltime retraining and income support in Seth’s case, among other things.  They stated a provision of $550,000 each from the estate would be adequate.

The deceased had a longstanding interest in spiritualism and a history of providing financial support and gifts to spiritual gurus.

Mr Benhayon owns a business known as Universal Medicine, a complementary healing and training organisation. He first met the deceased in 2011 at the Byron Bay Writers Festival.  Mr Benhayon provided complementary care to the deceased, alongside traditional medical treatments provided by her medical specialist, over a period of three years.  In May 2014, the deceased gave Mr Benhayon $800,000 for the renovation of a warehouse to a teaching hall.  She told Mr Benhayon she will also give him further money in her will, and that she had discussed it with her children who respected her wishes and will not challenge them.

The deceased met Ms Langebruch towards the end of 2011.  At the time, Ms Langenbruch owned a property near Brunswick Heads, and the deceased owned a property near Byron Bay.  They became close friends, with Ms Langenbruch driving the deceased to appointments and generally helping her.  In 2012, Ms Langenbruch moved into the deceased’s home and in 2013, the deceased and Ms Langenbruch decided to sell their respective homes and buy a house together, which was put in Ms Langenbruch’s name.

Law

Section 59 of the Succession Act[1] states that the Court may make an order in relation to the estate of a deceased person if “adequate provision for the proper maintenance, education or advancement in life… has not been made by the will of the deceased person…”.

Singer v Berghouse (No 2)[2] states a two-stage test should be applied to decide if adequate provisions have been made by:

  1. Asking a question of fact, in this case, has the deceased made adequate provision for Sarah’s and Seth’s proper maintenance, education and advancement in life? If the Court finds the answer to this question is that an adequate provision was not made, the Court can make an order for provision.
  2. Undertaking an exercise in discretion, in this case, whether the provision ought to be in Sarah’s and Seth’s favour? This second stage assesses whether the Court should make an order.

The Court’s role is not to achieve a fair disposition of the deceased’s estate, achieve equity between the various claimants, reward an applicant or distribute the estate according to notions of fairness or equity.  Rather, the Court’s role is simply to ensure adequate provision for the proper maintenance, education and advancement in life of an applicant which should not intentionally infringe on the deceased’s freedom of testation.

Decision

Justice Stevenson detemined that while the deceased carefully considered how to divide her estate, and was generous to Mr Benhayon and Ms Langebruch she left both her children with a “sizeable” deposit for property as she promised them, and although some may argue it was in the lower range of adequate provision, it was adequate nonetheless.  Justice Stevenson was not prepared to act against the deceased’s decision to give gifts and provide in her will for Mr Benhayon and Ms Langebruch by providing a further provision to Sarah and Seth from the deceased’s estate.

The claims were unsuccessful.

[1] Succession Act 2006 (NSW).

[2] [1994] HCA 40.