The High Court handed down its decision in ZG Operations & Anor v Jamsek & Ors [2022] HCA 2 and found that Mr Jamsek and Mr Whitby (the Respondents) were not employees of ZG Operations Australia Pty Ltd and ZG Lighting Pty Ltd (collectively referred to as “ZG”).

Facts

The Respondents were truck drivers employed by a predecessor company of ZG.

In late 1985 or early 1986, ZG advised the Respondents that it would no longer employ them and would continue to engage in their services only if they purchased their own trucks and entered into independent contractor arrangements (Contract). The Respondents agreed to the arrangement and set up a partnership, which included their respective spouses.

Under the Contract, the Respondents invoiced ZG for the services provided and paid their own operational costs and other expenses associated with operating the partnership.

In 2017, the Contract was terminated. The Respondents filed proceedings seeking payment of their entitlements (superannuation and long service leave) as employees of ZG.

Decision

At first instance, the Court held that the Respondents were independent contractors. This decision was subsequently overturned on appeal to the Federal Court of Australia and was subsequently appealed to the High Court.

The High Court held that the Respondents were not employed by ZG but were independent contractors. In support of its decision, it found:

1. the partnerships rather than the individuals (Respondents), owned and operated the trucks. Therefore, it is [63]: “…not possible to square the contention that the respondents were not conducting a business of their own as partners with the circumstance that, for many years, they enjoyed the advantages of splitting the income generated by the business conducted by the partnerships with their fellow partners”; and
2. it is essential to consider the orthodox approach to the interpretation of the Contract, which meant that the Respondents agree to own and operate their own trucks in order to carry goods to ZG.

Implications

The decision shows a departure from the holistic approach to assessing the employee/employer relationship and emphasises a greater focus on the terms of the contract between the parties. This suggests that the Courts will start adopting a more ‘black letter’ approach to the contractual interpretation of contracts for working arrangements.

Companies should ensure that their employment relationship with their employees/independent contractors is explicitly stated in the employment contract, including associated duties and obligations to avoid any complications in the future.

 

If you have any questions or concerns please contact Chamberlains and talk to our dispute resolution team today.

Many survivors of historic child sexual abuse have settled a civil law claim against their abuser or the institution they allege to be vicariously liable and/or negligence. These claims have been made to seek redress for the harm, pain and suffering these individuals have faced. Unfortunately, some of these settlements have been reached under unjust circumstances and have left the survivor with much less compensation than which they would ordinarily be entitled.

The law in many jurisdictions has now been amended to rectify these grave injustices by allowing the survivor a second chance at compensation.  The majority of States have enacted legislation that allow a Court to overturn a settlement deed in a historic child sexual abuse matter. Most notably, the State of New South Wales has recently passed the Civil Liability Amendment (Child Abuse) Bill 2021 which gives the court discretion to overturn a restrictive settlement deed where the Court finds it just and reasonable to do so.

Details of the Act

Section 50X of the Civil Liability Amendment (child Abuse) Bill 2021 allows a survivor who has previously received compensation and signed a deed of settlement prohibiting them from making any further claims, to apply for the deed to be set aside.

In making the discretionary decision to set aside the deed, the Court may consider the following:

1. the amount paid to the applicant under the agreement;
2. the bargaining position of the parties to the agreement;
3. the conduct in relation to the agreement of:
   1. the parties other than the applicant, or
   2. the legal representatives of the parties other than the application; and
4. any other matter the Court considers relevant.

Case examples

Whilst this legislation is new to New South Wales, there have been cases litigated in other jurisdictions for similar legislation. The matter of JAS v the Trustees of the Christian Brothers [2018] WADC 169 (“JAS”) was heard in the District Court of Western Australia under Section 92 of the Limitation Act 2005 (WA) and provides insight into how the Courts apply such legislation.

In the matter of JAS, the plaintiff settled their claim in 2015 for an amount of $100,000. The settlement was reached prior to the limitation period being amended for a historic sexual abuse matter and at the time the plaintiff’s claim was statute barred.

In evaluating the circumstances of the case, the Court noted that as a general rule there is no statutory limitation period for such a claim as the amendments to the Limitation Act 2005 (WA) to remove limitation periods for all child sexual abuse actions was both retrospective and prospective. The Court noted that at the time the settlement was reached, the notion that the claim was statute barred severely impacted the bargaining position of the plaintiff. The plaintiff was forced to accept the settlement as they held a belief that they had no prospects of success. The Court granted leave and noted that in the circumstances it was just and reasonable to do so.

The Court has noted that each case has different circumstances that will need to be considered when applying such legislation.

In noting the above, survivors now have more options in their pursuit of justice against abusers and institutions alike. If you or someone you know had a settlement for a historic child sexual abuse matter that seemed unsatisfactory you may now have recourse to revisit litigation and obtain the abuse compensation you are entitled to. Please reach out to Chamberlains Law Firm to have a preliminary chat with one of our solicitors about your circumstances.

Chamberlains Law Firm can proudly announce the addition of James d’Apice as a Director. This comes as the firm recently announced a number of internal promotions, and the milestone passing of 100 employees across its five office locations.

The promotion of James d’Apice was made official as of 16 March 2022 and sees him become the firm’s 10^th Director. The promotion reflects the continued success James has seen, not only with his own Corporate Disputes team, but also in his commitment and dedication in growing the firm’s cultural values.

The promotion comes off the back of several senior promotions within the firm, including the elevation of two Special Counsel, two Associates, and two Senior Lawyers.

James comments on his recent appointment:

“I joined the firm in 2020 with a healthy scepticism. ‘We’re With You’ initially felt too touchy-feely as a motto for a firm with national aspirations. But as time has passed, and as I have got to know the entire team, I have learned that Chambos really is with everyone we encounter: members of our team, our colleagues at other firms, our referrers, and even our opponents and competitors.

Hopefully my experience sharing my expertise online, and the occasional successes I have enjoyed as a corporate litigator, bode well for my further contributions at a more strategic level. If they do not, then my friends and mentors will no doubt be generous and supportive with their feedback!

“Making partner” is an aspiration of a significant number of solicitors. Some get there. Many don’t. I feel very privileged to find myself at this point, and to do so among people who I like, and who I trust.”

James is no stranger to the spotlight, his unconventional way of building a practice has seen him appear on a number of podcasts, interviews and as a guest university lecturer. Leveraging social media, he has built a name for himself and Chamberlains through his video series ‘Coffee and a Case Note’.

Chamberlains also hit a milestone with the recent hire of its 100^th employee in early March, cementing its position as a growing national firm. This achievement was also seconded by the firm being awarded the titles of ‘Fast Firm’ and ‘Employer of Choice’ in 2021 by the Australasian Lawyer.

Chamberlains’ Managing Director, Stipe Vuleta, also comments on d’Apice’s promotion and the firm’s recent growth:

“James has proven a valuable asset for the firm since day one, not only in developing and growing his team and the firm’s clientele, but also in coaching staff and working closely with our marketing and business development team. Besides his impressive resume, his impeccable style and infinite positive energy will make an excellent addition to our strategic leadership group.

Seeing the firm grow from a local property firm to its current shape, passing 100 staff with a national presence and full-service offering, makes me extremely proud of what we, and our incredible staff, have achieved in recent years.”

The Commonwealth of Australia are responding to many allegations of historic sexual abuse perpetrated within the Australian Defence Force.

Unfortunately, some men and woman, who enrolled in the Australian Defence Force, were sent to the following facilities as junior recruits:

• HMAS Leeuwin
• The Army Apprentice School, Balcombe
• Australian Defence Force Cadets

At these institutions, many individuals have now alleged they were subjected to repetitive acts of bullying and sexual assault and have suffered significant psychological injuries as a result.

 

HMAS Leeuwin

HMAS Leeuwin was a training facility for junior naval recruits between 1960 and 1980. It has now been accepted that this facility was home to child sexual abuse for many. Case Study 40 from the Royal Commission into Institutional Child Sexual abuse (“the Commission”) noted, “We accept that ‘bastardisation practices, including blackballing, or nuggeting existed at Leeuwin.”

The most shocking of it all, is that in 1971, his Honour Trevor Rapke published a report that was sent to senior management at HMAS Leeuwin that noted the facility had been, ‘The scene for unorganised and repetitive acts of bullying, violence, degradation and petty crime during most of the years of its existence.” He further noted that extreme and repetitive acts of bullying and physical violence had caused ‘deplorable’ physical and mental damage on junior recruits.

The Commission noted the impacts of the abuse have been long lasting and severe. The impacts include physical injury, mental illness, suicide attempts, alcohol abuse and broken relationships.

 

The Army Apprentice School

The Army Apprentice School was another training facility for junior recruits which existed between 1970 and 1980.

Allegations of a systemic culture of abuse at this facility has since come to light. Witnesses have come forward detailing their accounts of watching other recruits being forced to ‘run the gauntlet’ or attend ‘kangaroo courts.’

 

Seeking Help

It is now known that being subjected to a systemic culture of abuse and having acts of sexual abuse and grave physical abuse perpetrated against an individual causes a psychological injury.

You are able to seek redress for these grave injustices, which include recognition through compensation for the pain and suffering. At Chamberlains, we bring civil claims against the institutions to seek compensation on behalf of our clients.

If you or someone you know have been affected, or have witnessed sexual and/or physical abuse at one of the above institutions we urge you to reach out to. Our team of abuse compensation lawyers can help you.

“PPE is still made for a 6ft 3in male rugby player”

Personal Protective Equipment (PPE) is anything used or worn by a person to minimise the risk to health or safety. PPE includes boots, face masks, hard hats, ear plugs, respirators, gloves, high visibility clothing and safety harnesses. 

A person conducting a business or undertaking (PCBU) must do everything reasonably practicable to ensure the safety of workers including putting control measures in place to protect their workers’ health and safety such as supplying and ensuring PPE is worn and is fit for purpose and functional. As the PCBU, you must select the type of PPE that: 

• protects the worker’s without creating its own risks;
• is the right PPE for the work, and any hazards posed by the work;
• fits properly and is comfortable; and 
• is compatible with other PPE worn. 

The full legal requirements for businesses in this aspect are set out in Regulations 36, 44 and 45 of the model WHS Regulations. 

As the number of women employed in heavy industry continues to rise, it is important for businesses to ensure that any PPE required to be worn by female workers can be worn correctly and comfortably. This should include consultation with female employees to ensure correct sizing and fitting is tailored to the female body shape. 

Ill or tight-fitting PPE can cause restricted mobility or loose hanging clothing that is too large for female bodies can create additional risks particularly when working with heavy machinery and plant.  

 

Gender makes a difference 

Regardless of height or weight, women tend to have a smaller bone structure than men, with shorter narrower hands and feet and smaller facial shape and features. These are common differences not taken into account by a majority of PPE designers. 

A report completed by the Ontario Women’s Directorate and Industrial Accident Prevention Association gave multiple examples of what can occur when women have to “make do” with PPE that clearly is not made for them, including: 

• a woman with a small face wears the goggles available in the shop – the gaps they leave at her temples allow flying debris from the machine to enter her eyes;
• a female worker in a sawmill can only get small men’s sized gloves – the fingers are too long and too wide, the palm area is too large, and the cuff allows sawdust to fill the fingers, further causes a risk of getting her fingers caught in machinery and pinched when she stacks or carries boards; and
• a woman who wears men’s sized work boots reports tripping while calking and climbing stairs or ladders – she also suffers from blisters and burning on the soles of her feet and because her boots are too large, her toes are not protected by the steel cap.  

There are now some PPE suppliers in the market that cater to women’s sizing and choices and PCBU’s and employers should be strongly encouraged to explore these options in order to comply with their WHS obligations and focus on risks associated with their female workforce. 

Determining the ownership of real property can be more complicated than you might think. This article covers four important concepts that assists in determining which party owns a property, and what type of ownership it might be. Yes, there are different types of ownership!

Concept 1: Legal Ownership

This is the concept that most people are familiar with when it comes to property ownership. The person who has legal title is the person whose name appears when a title search is conducted with the Land Titles Office.  This will be the buyer on the sale of land contract which was executed when the property was purchased.

Despite these documents showing someone is holding legal title, this may not be the full picture. It is only the starting point in determining ownership.

Concept 2: Beneficial Ownership

It is possible for a person to have a beneficial (as opposed to legal) interest in real property.  This will commonly be done by way of a trust.  For example, the person on the legal title may be the trustee of the trust, and someone else may be the beneficiary of the trust. The trustee in that scenario holds the property on trust for the other person.

Concept 3: Not All Trusts Are Express Trusts

Most people are familiar with the idea of a trust deed establishing a trust.  This would be an express trust.  This is not however the only way that a trust can be established!  The Court has a few presumptions that it considers, which can be overcome with the right evidence.

Resulting Trust

The Court may presume that a resulting trust exists if someone else contributed the purchase price of the property that the legal title holder holds.  For example, if person A pays for the property but chooses to put it into person B’s name, the Court may presume that person B holds the property on trust for person A, because person A is the one who actually paid for the property.

Presumption of Advancement

The presumption of advancement is when the Court presumes that the property has been gifted by person A to person B because of the special relationship between those two people (such as husband and wife, for example).

Constructive Trust

The Court may declare a constructive trust exists in circumstances where it would be inequitable for a party to retain a benefit.  For example, if person B retained the full ownership of the property even though person A paid for it, that may be considered inequitable and to remedy the situation the Court may declare that there is a constructive trust.  This is why a constructive trust is said to be a remedy – it is not about the intentions of the parties, but rather it is about how to do equity.

Concept 4: You may need to go to Court to sort out your ownership issues

It is not uncommon for the owners of a piece of real property to get into a dispute about who owns what, or a dispute about whether a property can be sold.  For example, in New South Wales it is common for parties to commence proceedings pursuant to section 66G of the Conveyancing Act 1919 (NSW).  Section 66G allows the Court to appoint trustee(s) to handle a sale of the property so that the various interests can be separated.  The Court determines the proportions of the interests in the property in question, and then appoints trustee(s) to sell the property.  This is commonly utilised by bankruptcy trustees to sell the family home in circumstances where the husband and wife are in a dispute about their proportionate interests or who the true owner of the property really is.

Takeaways

Property ownership can be more complicated than simply determining what is on the legal title.  The above concepts can be difficult to apply in practice, and often parties will own unequal proportions of property.  If you have received a letter from a bankruptcy trustee or solicitor regarding property interests, or are in a dispute with someone about ownership, you will need the correct advice.

 

If you are seeking for legal advice, our Property Law specialists team can help you. Get in touch today!

The NSW Court of Appeal delivered judgment in Globe Church Incorporated v Allianz Australia Insurance Ltd [2019] NSWCA 27 and found that indemnification under a policy for insurance accrues at the time of the insurable event and not when a claim was assessed or determined. The Court held that the limitation period for an insurable event under a policy runs from the date of the damage and not when indemnity was refused by an insurer.

Background

Globe Church Incorporated (“Globe Church”) sustained property damage to its premises as a result of a flood which occurred between 8 June 2007 and 31 March 2008.

Globe Church held a policy with Allianz and Ansvar (“the insurers”) within the period which the damage occurred. Globe Church lodged claims under a 2008 Policy and 2009 Policy, and the insurers denied coverage in 2011.

Proceedings were commenced in the NSW Supreme Court by Globe Church in 2016, some 8 years after the date the damage was said to have occurred. The proceedings were commenced against the insurers for an alleged breach of contract for denying indemnity under the policy.

The proceedings were referred to the Court of Appeal to determine whether the commencement of proceedings in the Supreme Court of NSW was barred due to the applicable 6-year limitation period.

Decision

The Court of Appeal held that the limitation period commences from the date of the occurrence of damage and not the date the insurers communicated a denial or refusal of an insurance claim.

The key finding made by the Court were as follows:

1. A cause of action accrues on the happening of an event of property damage.
2. In accordance with Section 14(1) of the Limitation Act 1969 (NSW) (“Act”), any claim for indemnity must be made within 6 years from the time the damage occurred. As the damage is said to have occurred between 8 June 2007 and 31 March 2008, commencing proceedings some 8 years later does not coincide with the requirements under the Act and accordingly the plaintiff in this case is barred from the commencement of proceedings.

Implication

This case provides a limitation defence for insurers to claim if proceedings are not commenced by an insured within 6 years of the date of the loss. It is as equally important for insured person under a policy to ensure that if they are unsatisfied with a decision made by an insurer, the insured has 6 years to commence proceedings and those proceedings must be commenced within 6 days of the date the damage occurs.

 

If you have any questions or concerns please contact Chamberlains and talk to one of our insurance law experts today.

Dhupar v Lee [2022] NSWCA 15: successful claim for damages for the birth of a healthy baby after failed sterilisation procedure.

On 26 August 2014, obstetrician and gynaecologist Dr Nita Dhupar performed a Filshie clip tubal ligation on Ms Jodie Lee (a pseudonym), a surgical procedure intended to result in permanent contraception. The procedure involves using Filshie clips to clamp the Fallopian tubes so that they become sealed and eventually severed.

Approximately 9 months after receiving the surgery, Ms Lee fell pregnant and subsequently gave birth to her child on 1 March 2016. Ms Lee sued Dr Dhupar in the NSW District Court for negligence, alleging that Dr Dhupar did not correctly apply the Filshie clips or inspect whether they had been properly applied. Ms Lee was successful, and she was awarded damages of $408,700 plus costs. This included damages for non-economic loss (due to psychological disorder and trauma of surgery), past economic loss, future loss of earning capacity, and past out-of-pocket expenses and future treatment expenses.

Dr Dhupar appealed, both as to liability and as to damages, and the hearing for which was held on 25 and 26 May 2021. The decision was handed down on 18 February 2022.

Significantly, the Court of Appeal unanimously dismissed Dr Dhupar’s appeal. Whilst relying on twenty grounds of appeal in relation to liability, Brereton JA, McCallum JA and Simpson AJA held that, on the balance on probabilities, the trial judge was right to conclude that the patient’s pregnancy post tubal ligation was attributable to negligent operator error on the part of the doctor in the application of the left Filshie clip. Considering the evidence presented to the Court, the judges ultimately concluded that Dr Dhupar did not sufficiently prove that the trial judge had erred in their finding.

There is no doubt that pregnancy can occur after tubal ligation without negligence. The literature outlines various well-established ways tubal ligations can fail without there being any negligence on the part of the operator, and these occurrences were considered and accepted by the Court. Therefore, the question for the Court of Appeal, as it had been for the District Court, was whether Ms Lee’s pregnancy was, on the balance of probabilities, a result of Dr Dhupar’s negligent insertion of the left Filshie clip, or whether the failure was the result of an unrelated occurrence.

Significantly, the Court considered the leading literature on the topic which has established that most failed sterilisations involving Filshie clips are attributable to operator error where the failure occurs within nine months of the procedure. Having fallen pregnant only nine months after her tubal ligation, Ms Lee argued that there was a significant possibility that the failure was due to negligence on Dr Dhupar’s part. Further, the appellant’s contention that the trial judge should have had regard to the fact that Dr Dhupar had not previously had a failed sterilisation following the application of a Filshie clip was held to be “without substance”.

On 1 March 2016, Ms Lee gave birth to her child via Caesarean-section, during which the surgeon, Dr Jeri, could only identify the right Filshie clip. Dr Jeri could not identify a clip on Ms Lee’s left fallopian tube. The left clip was later confirmed not to be attached to Ms Lee’s left fallopian tube when she underwent a hysterosalpingogram (HSG), a radiological procedure, during the course of proceedings in 2018.

In these circumstances, intraoperative photographs had the potential to offer much insight into any possible negligence that may explain why the left clip was no longer attached to Ms Lee’s fallopian tube. In particular, there was a question as to whether Dr Dhupar had not completely closed the clip at the time of insertion.

The intraoperative photographs of concern in this case were those taken by a theatre nurse during Ms Lee’s tubal ligation on 26 August 2014. Whether the intraoperative photographs supported the doctor’s case that the left clip was properly closed, or accommodated the patient’s case that it was not, was therefore a significant issue for the Court to consider.

In a joint report, the expert witnesses Professor O’Connor (called by Ms Lee) and Professor Cooper (called by Dr Dhupar) agreed that the intraoperative photographs confirmed Dr Jeri’s finding that the right clip had been correctly applied. Notably, the experts both found that the photographs did not conclusively show that complete closure of the left clip over the left fallopian tube had been achieved by Dr Dhupar, although neither suggested that the photographs showed that closure had not been achieved. Professor O’Connor and Professor Cooper did conclude however that the left clip was not placed in the recommended position. Rather, the clip was placed 2.9cm away from the recommended position on the fallopian tube. Professor O’Connor considered the misplacement to be a likely explanation for the pregnancy, however Professor Cooper was not willing to draw such a conclusion on the evidence provided.

Complicating this was the fact that the incomplete closure hypothesised by Ms Lee could not be proved or disproved through the image of the left clip as it appeared in the HSG. From the HSG images, the experts could not conclude that the clip was completely closed over the left fallopian tube, in which case it could have been said that the detachment was definitely due to circumstances not related to any negligence on the part of Dr Dhupar. Similarly, the images did not exclude the possibility that the clip had been incompletely closed in an act of negligence by Dr Dhupar. Yet, the fact remained that the left clip was applied at a sub-optimal point on Ms Lee’s left fallopian tube which did increase the chances of an incomplete closure.

It was in these circumstances that the Court held that the trial judge was right to conclude that, more probably than not, Ms Lee’s pregnancy post-tubal ligation was attributable to negligent operator error on the part of Dr Dhubar in the application of the Filshie clip on 26 August 2014. Whilst the intraoperative photographs and the HSG could not provide any conclusive evidence, the Court relied, firstly, on the fact that most tubal ligations that fail within nine months of the surgery are due to negligence and, secondly, on the intraoperative photographs which showed that the left clip was misplaced (if not incompletely closed) on Ms Lee’s left fallopian tube. Further, the Court upheld the damages as awarded to Ms Lee by the District Court as it could not be found that the sum totalling $408,700 plus costs was outside the range of reasonableness.

The case confirms the NSW District Court’s finding that an individual can claim damages for a healthy baby born as a result of an unplanned pregnancy caused by the negligent performance of a sterilisation procedure. The case also demonstrates the importance of expert opinion and the balance of probabilities in medical negligence claims where there may be a lack of evidence available to the parties and the Court alike.

If you would like to read the full decision yourself, you can access it here: https://jade.io/article/90586

Whilst the Royal Commission explored some of the Catholic Church’s most prolific paedophiles, it only touched the surface when it came to Father Tom Brennan.

In Report of Case Study No. 43, published by the Royal Commission into Institutional Responses to Child Sexual Abuse, it is noted that a mother of a student at St Pius X, Adamstown approached the then Principal of the School, Father Tom Brennan, to report sexual abuse her son had been experiencing at the hands of Brother Patrick. In response Father Brennan allegedly put both hands up in a defensive manner and said words to the effect that there was nothing he could do.

In 2012, Father Tom Brennan was charged with concealing child sexual abuse and sexually abusing children himself.

Many victims have since come forward alleging details of horrific sexual and physical abuse for the purposes of sexual gratification administered at the hands of Father Tom Brennan while he was serving at one of the following institutions:

• Diocese of Maitland-Newcastle
• Corpus Christi Parish Waratah, Newcastle
• St Joseph’s Parish, Toronto NSW
• St Pius X High School, Adamstown

We are currently working with our clients on claims they have in relation to Father Tom Brennan.

If you would like to discuss a claim or have been a witness to these matters, please contact Ms Sarah Hayman at sarah.hayman@chamberlains.com.au from Chamberlains Law firm to see how we can help with abuse compensation claims.

A guarantee is a contractual promise, whereby you (as a guarantor) agree to that you will fulfil the repayment (and other) obligations of a borrower if the borrower fails to do so.

Common examples where a company obtains a business loan and the company director personally guarantees the company’s performance of the obligations under the loan agreement. Similarly, directors may provide personal guarantees to suppliers in order to obtain credit accounts with key suppliers.

It is not uncommon for parents to guarantee home loans obtained by their children to assist their children purchase property.

How does a guarantee operate?

If a borrower defaults on their obligations under a contract, the lender or supplier can pursue the guarantor for payment.

Many credit contracts contain a term to the effect that, if a borrower defaults on their repayment obligations, the entire amount of the debt becomes repayable immediately (or within a much shorter timeframe than originally agreed). This means that a borrower’s default can expose a guarantor to significant liabilities within a potentially short time.

Key Points

Before providing a guarantee you should:

1. Be mindful that your will be liable to fulfil the obligations of another party if that party fails to do so.
2. Obtain independent legal and financial advice.
3. Consider the capacity of the borrow to meet the obligations that they are asking you to guarantee.
4. Consider the commercial benefit, if any, you will obtain by reason of providing the guarantee.

 

If you have any questions or concerns please contact Chamberlains and talk to our dispute resolution team today.