The recent case of Stewart v Ma [2023] NSWSC 1046, presided over by Justice Garling, involved the plaintiff initiating legal proceedings alleging she was abused by her late father from 1964 to 1977. The defendant, serving as the executor of the deceased’s estate, responded by stating that she could neither confirm nor deny the allegations concerning the plaintiff and her late father, who would have been between the ages of 4-17 and 37-49 respectively, during the time frame in question. The defendant requested that the court permanently halt the legal proceedings, invoking both section 67 of the Civil Procedure Act 2005 and the court’s inherent authority to do so.
The plaintiff’s realisation that she had been abused seems to have originated from her participation in a spiritual and personal development workshop in 1990. This workshop employed “transformative breathwork”, a technique aimed to uncover repressed memories and deeper psychological realities. At that time, the plaintiff hadn’t confronted either of her parents about the alleged abuse, although she did later discuss it with medical professionals and her spouse.
Both potential witnesses to the alleged abuse, the plaintiff’s parents, have passed away, and neither was made aware of the allegations prior to their deaths. Consequently, the defendant, acting as the executor, finds herself unable to effectively engage in the litigation due to a lack of firsthand information regarding the allegations.
Justice Garling noted that any trial proceedings would decidedly be one-sided. Whilst the plaintiff could present her own account, the defendant would have no substantive basis to challenge the allegations. Records from a Sexual Assault Service might offer some scrutiny of the plaintiff’s testimony, but the examination would lack context and definitive purpose.
In concluding remarks, Justice Garling emphasized that the crux of the adversarial legal system is the ability for both parties to meaningfully participate and instruct their respective lawyers. Given that the allegations date back almost 50 years, and that neither of the key witnesses are alive to provide their account, a fair trial is unattainable in this particular situation. As such, the court decided to permanently halt the case, declaring that proceeding otherwise would render any trial proceedings fundamentally unfair to the defendant.
For a potential legal client involved in similar proceedings as above, this decision serves as a crucial precedent for understanding how the courts may approach proceedings involving long-past events, particularly when key witnesses are no longer alive to participate.
Ultimately, historical abuse is an area of law that is highly individualised, and each victim’s matter comes with its own set of strategies, challenges, and considerations, making it essential for prospective legal clients to consult with legal professionals well-versed in the particularities of their case type. The stay of proceedings in Stewart v Ma should not deter survivors from seeking the justice they deserve. Our team at Chamberlains are specialists in navigating complex historical abuse matters, and would be happy to discuss further with you.
On 16 June 2023 Justice Herron of the District Court of WA handed down his decision on the high profile Barry Cable (‘Cable’) historical child sexual abuse case.
In the matter of ZYX (pseudonym initials) v Cable [No. 5][2023] WADC 61 Justice Herron found that Cable did sexually abuse the plaintiff in the late 60’s/early 70’s when she was a young girl.
The Plaintiff was awarded over $800,000 in damages.
A key issue discussed in the case was similar fact evidence and when to adduce them in civil proceedings.
There were a number of witnesses who gave evidence in the trial who were also victims of Cable some 20 years after the plaintiff was sexually abused by Cable.
In WA, similar fact evidence (propensity or relationships evidence) is only admissible in criminal proceedings in WA. Section 31A of the Evidence Act 1906 (WA) does not apply to civil proceedings.
Justice Herron therefore referred to common law principles governing admissibility of similar fact evidence in civil proceedings.
The fact in issue was whether the defendant sexually assaulted the plaintiff on multiple occasions when she was a child in the late 60’s and early 70’s.
The further question was whether the occurrence of other acts of sexual assault by Cable against other girls when they were children on other occasions in the early 80’s and then another female child in the 90’s, makes the occurrence of sexual assaults against the plaintiff, occurring many years earlier, more likely.
The plaintiff argued because Cable more than 20 years after she says he sexually abused her, had a sexual interest in young girls upon which he was prepared to act, that made it more likely he sexually abused her because the sexual interest was longstanding and already existed at the time he came into contact with the plaintiff.
Justice Herron considered that “the more remote in time the alleged propensity or tendency exists, the more difficult it is to maintain that the defendant would have acted in a similar way many years previously so that it makes it more likely he did the physical acts of sexual abuse as claimed” Herron took the view that “had the propensity or tendency existed at a point in time closer to when the plaintiff says the defendant sexually abused her the evidence may have been relevant by establishing a pattern of behaviour of sexually abusing young girls at a time contemporaneous to when the plaintiff says he sexually abused her, which would have made it more likely he sexually abused the plaintiff consistent with that pattern of behaviour.”
Herron decided the similar fact or tendency evidence was not probative to determining the fact in issue.
Instead, Herron considered the similar fact evidence was relevant on a different basis. He determined it was relevant and admissible in rebutting an explanation that it is implausible that a person in the defendant’s position would have committed the acts of child sexual abuse. The existence of his sexual interest in the young girls in the latter years and the tendency to act on it gave Justice Herron greater comfort in being able to accept the plaintiff’s evidence notwithstanding his highly regarded public profile. It gave support to her evidence even though he was a well-known highly regarded figure.
Chamberlains Law Firm represents clients for historical sexual abuse claims against both institutions and individuals. The hope in bringing a claim for childhood historical abuse is to hold the individual or institution accountable and provide financial compensation to the survivor for the harm caused. Please get in touch with our experienced team in this area for a confidential no-obligation initial chat.
RWQ (a pseudonym) commenced proceedings in the Supreme Court of Victoria against The Catholic Archdiocese of Melbourne (“the Archdiocese”) and George Pell. RWQ claimed the Archdiocese was liable for psychological injuries he suffered after learning his son had been sexually abused as a child by George Pell. The claim was made pursuant to Part XI of the Wrongs Act 1958 (Vic).
It is important to note the Archdiocese is an unincorporated non-government organisation.
The Archdiocese denied the claim on the basis that it did not arise from child abuse and argued that the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) (“the Act”) was not applicable to RWQ’s case.
RWQ was successful before the Supreme Court of Victoria at trial. The Archdiocese appealed two orders made by the primary judge, those being:
The appeal was recently heard before Beach, McLeish and Kennedy JJA of the Victorian Court of Appeal. In a monumental decision, their Honours affirmed the primary judge’s finding that section 4 of the Act is not limited only to children who are alleged to have been sexually abused, variously referred to as ‘child abuse plaintiff’s’, ‘primary victims’ or ‘survivors’. Their Honours confirmed that the only limitation was found in section 4(1), which stated that a claim must be ‘founded on or arising from child abuse’.
To demonstrate that this is the proper interpretation of the section, both Courts utilised the example former Attorney-General, Martin Pakula, referred to in his second reading speech. The Attorney-General made repeated references to litigation individually commenced by Chrissie and Anthony Foster which arose out of alleged sexual abuse suffered by their daughters.
The Court also confirmed a proper construction section 7 of the Act prevents an unincorporated non-government organisation from being able to properly rely upon the defence raised in the Ellis case, that being, it cannot sue or be sued at common law as it does not exist as a juridical entity.
This decision is important in affirming that affected family members of survivors of childhood sexual abuse can make a claim for the impact of the abuse. At Chamberlains we help survivors of institutional child sexual abuse and their families to seek accountability from the institutions that have failed them.
If you or your loved one has been the victim of sexual, serious physical abuse or other abuse please contact our experienced team at Chamberlains for a no obligation, free initial discussion.
This article was prepared with the assistance of Sarah Farhat
If you are in prison for a serious indictable offence or felony and you want to commence an action in court for historical child sexual abuse, then you must get permission from the Court.
In NSW, leave must be sought from the Supreme Court of NSW. The relevant legislation is s. 4 of Felons (Civil Proceedings) Act 1981 (NSW).
To get leave under s. 4 the plaintiff has to show the proceedings are not an abuse of process and there is on its face grounds for bringing civil action or legal proceedings in the matter.
A statement from the plaintiff and medical evidence will support the motion for leave from the Court that such proceedings are not an abuse of process and that there are grounds to bring the civil action.
At Chamberlains we represent clients serving prison sentences in NSW for serious offences. Where required, Chamberlains will take the necessary steps to ensure their rights are preserved in an action in court for historical child sexual abuse.
Contact our abuse compensation claims team to schedule a confidential consultation with our team.
Shutdown periods are a common business practice during calendar holiday periods such as over the Christmas and New Year period. A shutdown period refers to a particular period when a business is temporarily closed.
Employees with an entitlement to annual leave are often directed to take annual leave during these periods. As such, employees will often accrue and keep their annual leave balance, in forethought of ensuring their balance will cover them during the shutdown period. However, where an employee has an insufficient balance of annual leave hours to cover this period, they often find themselves in a predicament. In this instance, the leave policy of many employers will require the employees to take unpaid leave.
What has changed?
As of 1 May 2023, employers are prohibited from directing employees covered by any of the 78 impacted modern awards to take unpaid leave during any business shut down periods.
This change follows the 22 December 2022 decision of the full bench of the Fair Work Commission to amend 78 of the modern awards by implementing a clause which protects employees from being forced to take unpaid leave during shutdown periods. These amendments are now in operation. Some of the impacted awards impacted include:
The changes also impose an obligation of employers (in all 78 impacted modern awards) to provide their employees with a minimum of 28 days’ notice in writing, notifying employees of the dates and details of the temporary shutdown period.
How does this affect you?
Employers of employees covered by any of the 78 impacted modern awards need to be aware that they are now prohibited from directing employees to take unpaid leave during a shutdown period. Employees equally should be aware of their entitlements regarding leave during their workplace shutdown period.
As the Christmas and New Year period approaches, employers must be aware of their obligations in the following circumstances.
The changes significantly impact the management of employees leave during shutdown periods. Navigating these changes can be complex for many employers and ensuring that your business is protected can be difficult. Now is a crucial time to seek legal assistance to review any existing employment contracts, leave policies or procedures to ensure compliance with the new provisions and protection of your business from potential liability.
Prepared with the assistance of Isabella Turner.
The recent enactment of the Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (“FW Amendments”) has sent shock waves through the Australian corporate landscape through the introduction of controversial pay secrecy prohibition legislation, fixed-term contract limitation periods and flexible work arrangement requirements.
In the wake of Covid-19, Australians nation-wide have embraced flexible work with a reported one in three employees prepared to resign if they were unable to work from home. The post-pandemic corporate landscape has forged a workplace trend that empowers employees to reduce time and expenses on heavy commutes, increase productivity and greater balance between work and home.
However, SMEs to multi-national corporations have begun backtracking on flexible work arrangements in a bid to return to the status quo. The FW Amendments have incorporated flexible work arrangements into the National Employment Standards (“NES”).
The NES applies to all employees that fall under the national workplace relations system, irrespective of an applicable Modern Award, employment contract or enterprise agreement.
Eligibility
An employee has a statutory entitlement to request a flexible working arrangement with their employer if they are:
This extends to employees that are parents and primary carers that seek to return to work on a part-time basis following a period of parental or adoption leave.
Casual employees are entitled to make a request if they have been employed on a regular and systematic basis for at least twelve (12) months and there is a reasonable expectation of continuing employment on this basis.
All employees must satisfy twelve (12) months continuous service in order to access the benefit of this workplace right.
Requirements
An employee must make a request for flexible work arrangements in writing to the employer, including reasons for the request and the proposed change sought.
The employer has twenty-one (21) days to provide a written response to the request, stating whether they grant or refuse the request. In the event that an employer refuses the request, they must provide reasonable business grounds in writing.
Examples of flexible work arrangements that eligible employees are entitled to request include (but are not limited to):
What are reasonable business grounds?
In circumstances that:
the employer may refuse a request for flexible working arrangements.
Ultimately, the employee and employer are encouraged to discuss and negotiate flexible working arrangements that balances the needs of the respective parties. In the event that a mutual agreement is reached, we would recommend that employees request a written variation or addendum to their employment contract to record the terms of their arrangement.
Employers should ensure that any material variation to any terms of employment are prescriptive and documented, particularly in circumstances where conditions are attached to the granting of flexible work arrangements (e.g. fixed-term period).
Grumpy Employee?
Although there is no strict requirement for employers to agree to a flexible working arrangement, the Fair Work Act 2009 (Cth) empowers the Fair Work Commission to address disputes concerning compliance by an employer in providing a written response within twenty-one (21) days and whether an employer had sufficient business grounds.
The powers of the Fair Work Commission are further bolstered by the anti-discrimination regime in each respective state and territory, particularly in relation to parent and carer responsibilities.
Perception is Reality
Employers should tread carefully to ensure that any refusal to a request is thoroughly reviewed and properly considered. Any written response should be prescriptive on grounds for refusal and encourage the employee to discuss the matter to achieve a mutually beneficial arrangement.
Otherwise, employers run the risk of employees assuming that their request was refused for prohibited reasons including breaches of the discrimination provisions in the Age, Sex and Disability Acts. A risk of that nature can quickly materialise into general protections claim, discrimination or human rights complaint.
Chamberlains Law Firm can assist employers with navigating the recent FW Amendments, conducting workplace audits for internal risk assessments and preparing documentation to assist employers with compliance.
Previously, employers would attempt to circumvent the protections pro-offered by the Fair Work Act 2009 (Cth) (“the Act”) by engaging employees on rolling fixed-term employment contracts. However, the use of fixed-term and maximum-term employment contracts is now severely restricted under the new regime.
In short, any fixed-term or maximum-term contract with an outer limit exceeding two (2) years will cease to have effect and convert to a permanent agreement. In circumstances where a contract expires at the conclusion of the maximum two (2) year period, employers have an obligation to remain vigilant as their business may be exposed to unfair dismissal proceedings notwithstanding the termination occurring by virtue of the contract expiring.
Case Note: Saeid Kkayam v Navitas English Pty Ltd t/as Navitas English (“Navitas”) [2017] FWCFB 5162
In this matter, the Applicant was employed to perform teaching duties on a casual basis between 2005 and 2012. The Applicant was offered two consecutive fixed-term contracts, with the latter agreement expiring on 30 June 2016.
The contract provided for the automatic termination of the Applicant on the expiry date. An applicable enterprise agreement authorised the fixed-term engagement of employees and provided Navitas “absolute discretion” to renew such contracts.
Navitas informed the Applicant that his fixed-term contract would not be renewed a few weeks prior to expiry thereof, citing the Applicant’s “underperformance and disciplinary record”. The Applicant filed an unfair dismissal application in the Fair Work Commission, however Navitas argued a jurisdictional objection on the basis that the Applicant was not dismissed, rather his contract expired.
On appeal, the Full Bench referred the matter to be re-determined by the Fair Work Commissioner, stating that in circumstances where there has been a termination initiated by the employer and not agreed to by the employee:
“…the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequently, in the termination of employment”.
While not exhaustive, the Full Bench indicated the following factors that may be relevant when determining if there has been a termination at the initiative of the employer (and not by reference to the termination of the contract of employment):
Key Takeaways
Employers should not assume that termination at the expiry of a fixed-term contract will reduce their risk of exposure to unfair dismissal proceedings in the Fair Work Commission.
With the introduction of new legislation which requires employers to factor in previous fixed-term contracts issued before 6 December 2023 into the two-year (2) limitation period, employers are now faced with expiring agreements or converting employees to permanent arrangements.
It is therefore important that employers seek advice on how to communicate the expiration of employment contracts in a way that reduces liability to claims and ensures that both parties are afforded procedural fairness. Contact Chamberlains Law Firm for bespoke advice on your termination rights.
This article was prepared with the assistance of Jasmin Mantoufeh.
There is a legal obligation placed on employers to make reasonable adjustments to features of the workplace where an employee with a disability or injury may face barriers at work because of the structures of the workplace or their role. Ultimately, all employers are required to make suitable adjustments to an employee’s role, or the workplace of the affected employee, unless it would cause the employer unjustifiable hardship.
In determining what constitutes unjustifiable hardship, courts and tribunals have previously considered:
A recent decision in Panazzolo v Don’s Mechanical and Diesel Service Pty Ltd [2023] FedCFamC2G 665, has reiterated the requirement for employers to offer reasonable adjustments to workers who return to work after suffering an injury or otherwise face the possibility of legal action.
Mr Panazzalo, who was an employee of Don’s Mechanical and Diesel Service, suffered a severe injury to his wrist after being assaulted whilst walking his dog outside of his employment. In returning to work, a medical professional declared that he could not engage in any heavy lifting for a period of three-months. Mr Panazzolo subsequently argued that his employer failed to reasonably accommodate him when his employer advised that they required a medical professional to clear him for “all duties” that are expected of a diesel mechanic for him to return to work, instead of offering him the ability to return to work with lighter duties.
The employer argued that light duties were not possible, as the employee did not have a driver’s license and his injury may pose a public safety risk, as a diesel mechanic was often required to tighten wheel bolts and other essential equipment.
Ultimately the Fair Work Commission held that the employer unlawfully discriminated against Mr Panazzalo on the basis of his disability, thereby breaching the Disability Discrimination Act 1992 (Cth). This was because the employer failed to make reasonable allowances for the employee, highlighting the fact that the disability was only temporary and failed to propose or entertain any lighter duties.
As a consequence of the employer’s failure to make reasonable adjustments, the employee was awarded a significant payment of $44,000 in damages by the Fair Work Commission.
This case reminds employers to ensure that they are implementing reasonable adjustments where an employee has a disability, suffers from an injury, or faces other barriers at work. If you are an employer with an employee returning to work, it is recommended that you consult legal counsel to ensure that you are providing adequate reasonable adjustments.
If you would like advice in relation to reasonable adjustments or any other workplace issues, please do not hesitate to reach out to our Workplace Law team.
This article was prepared with the assistance of Oscar Arnott.
On Friday 2 June 2023, the Fair Work Commission handed down its Annual Wage Review 2022-2023 decision, announcing a 5.75% increase to minimum wages prescribed by Modern Awards. Bearing in mind hyper-inflation and rising unemployment rates, the Commission has also increased the National Minimum Wage to $23.23 per hour from $21.38 per hour.
In the event that a business is a National System Employer, they have a statutory obligation to comply with the National Employment Standards and any applicable industrial instruments such as a Modern Award. Following the Annual Wage Review and introduction of the Fair Work (Secure Jobs, Better Pay) Act 2022, employers must be vigilant and undertake a workplace audit to ensure compliance, or otherwise be at risk of severe financial penalties.
Case Study: Fair Work Ombudsman v Chatime Australia
In a significant decision on directors’ liability for underpayments, a court has found that although the managing director of Chatime was unaware that the bubble-tea chain was in breach of workplace legislation, he had sufficient knowledge about his obligations under the applicable Modern Award to be considered “complicit”.
Facts
In 2013, the Chief Financial Officer prepared a presentation to the managing director and his co-founder showcasing two costing models. The first model that applied Award rates had added more than $850,000 to annual payroll. The latter model applied minimum award rates but removed bonuses and required payroll to be in cash, adding a mere $250,000 to annual payroll in comparison.
The latter model was applied and resulted in an underpayment of more than $160,000 over a four-month period in 2016.
Outcome
Judge Nicholas Manousaridis determined that the managing director, having absorbed the information presented by the CFO, had qualified as a “person involved” in admitted underpayments under section 550(2) of the Fair Work Act 2009 (Cth) (“FWA”).
Satisfied that the managing director had knowledge of the “essential elements” constituting a breach, the matter has been re-listed to determine the quantum of penalties for Chatime and the managing director respectively.
Legal Rationale
In order to ascertain liability under section 550(2), it must be determined whether:
“when taken with the decision [he] made, or joined in making, that Chatime implement Costing Model B instead of Costing Model A, the managing director knew he had decided not to commit Chatime to pay its employees the ‘casual rate’ or ‘weekend penalty rates’ under Costing Model A which were payable under the Award”.
In his judgement, Justice Manousaridis noted that although the managing director recalls little from the CFO’s presentation, the managing director’s decision to favour Costing Model B implied that he acquired sufficient knowledge of the contents of each Costing Model to assess their relative merits.
The managing director argued that he did not understand or “fully appreciate” exactly what an Award is, or what the ramifications would be for non-compliance. “It is, however, unnecessary to prove that [he] believed or knew that his conduct contravened section 45 of the FWA to not breach a term of the Modern Award, or that [he] believed that such conduct was unlawful”.
Key Takeaways
Section 45 of the Fair Work Act states that “a person must not contravene a term of a Modern Award”. Section 45, amongst other relevant sections are a civil remedy provision which allows the victims of the breach to apply for an order for a financial penalty against the alleged wrong-doer.
The application and enforcement of civil remedy provisions are most common in cases of underpayment and contraventions of an applicable Modern Award. Therefore, employers have a positive obligation to undertake a workplace audit to identify gaps in compliance and ensure that employment contracts, remuneration models and workplace policies are annually reviewed to maintain active compliance, particularly in the wake of the Commission’s Annual Wage Review.
Contact Chamberlains Law Firm to discuss your options for a workplace audit, HR planning advice and general HR advisory services.
This article was prepared with the assistance of Jasmin Mantoufeh.
On 18 July 2020, a patient from Wollongong Hospital was being transferred from a CT scan back to the ICU by two staff members the day after a back surgery. The staff member at the foot of the bed let go of the bed in order to open the doors, the end of bed was not being directed and it hit the wall to the side of the doors.
The patient reports feeling, “a shock through his body; he slid down the bed, his feet came into contact with the footboard.” And immediate pain and numbness which worsened over time.
The question was whether the staff were negligent in letting go of the bed end, and whether the act of the bed hitting the wall materially contributed to the injury.
On 21 July 2023 Acing Judge Ainslie-Wallace in the NSW District Court found the Wollongong Private Hospital was liable in negligence for the conduct of their employees, as it was more probable than not that the staff’s conduct materially contributed to the injuries of his lower back.
The Plaintiff was awarded $833,873.00 in damages as he was unable to return to work as a result of the injuries.