On 18 June 2020, the NSW Court of Appeal handed down its decision in the matter of Lee v Strelnicks; Souaid v Nahas; Cassim v Nguyen; Rixon v Arsalan [2020] NSWCA 115. The case dealt with the appeals of four judgments of the Supreme Court of NSW, related to the entitlement to hire vehicle costs following motor vehicle collisions.

The Court of Appeal held that parties who are entitled to damages for hire vehicle costs are entitled to a vehicle equivalent in model, make, year and specification.

Background

In three of the cases heard on appeal by the Court, the Supreme Court of NSW decided that the plaintiffs were not entitled to luxury replacement vehicles whilst their own damaged luxury vehicles were being repaired, as it was held that an economy vehicle would suffice. In the fourth case, the plaintiff failed to establish a “need” for a replacement vehicle.

The key issues before the Court were:

1. Was there a “need” for a replacement vehicle?
2. What constitutes reasonable expenditure on hiring a replacement vehicle?

Judgment

By majority judgment, the Court held that a claimant must establish a ‘”need” for a replacement vehicle. This means that the claimant must show that a replacement vehicle was required to put them in the position they would have been in had the wrongdoing not occurred. An example of this would be that the claimant needed a replacement vehicle as they ordinarily would have used the damaged vehicle to drive to work.

The Court held that a claimant is entitled to a replacement vehicle that is equivalent to or as close to equivalent as possible as the damaged vehicle. The cost should be what is reasonable to hire an equivalent vehicle in the circumstances and based on the market.

Key takeaway

The impact of this decision is that defendants to claims for damages for loss of use of a motor vehicle may be liable for the costs of a replacement vehicle that is equivalent to the damaged vehicle, even where the vehicle is a luxury or prestige vehicle.

In March 2021, the High Court of Australia granted special leave for the decisions of Rixon v Arsalan and Cassim v Nguyen to be appealed. The High Court will determine whether the Court of Appeal was correct in their method of assessing damages for the loss of use a motor vehicle.

 

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

Western Australia’s Path to Full eConveyancing Explained

Article Summary

• As WA transitions toward full eConveyancing, property transactions will become more efficient and transparent.
• Confusion may arise regarding which dealings can be lodged electronically versus manually – Chamberlains can help you navigate this.
• As WA moves toward full digital lodgement, subscriber responsibilities will continue to evolve, making compliance essential.

As Western Australia advances toward fully electronic dealings and eConveyancing, subscribers must be aware of significant changes across the conveyancing landscape. Covid-19 disruptions resulted in delays and increased reliance on digital lodgement. Chamberlains is across these issues and can help guide you through the next stages of WA’s eConveyancing transition.

WA transition to eConveyancing

Landgate has implemented a staged transition toward mandatory electronic lodgement for a broad range of property dealings under the Transfer of Land Act 1893 (WA). Western Australia aims to eliminate most forms of paper dealings, with key milestones having taken effect progressively from 2018 onward.

Two major reforms underpin the transition:

• Abolition of paper Certificates of Title in 2019, with Landgate’s electronic Register becoming the sole legal record
• Mandatory electronic lodgement for most dealings through ELNOs such as PEXA and Sympli

The transition removes the need for physical titles, CoRD-style processes, or manual consent frameworks. Benefits include faster registration, reduced requisitions, streamlined digital workflow and enhanced transparency.

Residual documents and lodging paper documents during Covid-19

WA does not use the NSW terminology “Residual Documents”, but Landgate maintains categories of “non-eligible dealings” that must still be lodged manually until digital versions are developed. Covid-19 lockdowns prompted temporary arrangements enabling secure online submission of certain paper dealings.

Chamberlains can lodge a full range of WA dealings, including Transfers, Mortgages, Caveats, Survivorship Applications, Transmission Applications and more.

How Chamberlains can assist you

As WA continues expanding mandatory eConveyancing, consumers will increasingly require an ELNO subscriber to lodge dealings. Chamberlains’ Perth conveyancers ensure compliance with WA Participation Rules, including VOI, Client Authorisations and verification of Right to Deal.

We can provide lists of currently electronically-enabled dealings and upcoming categories transitioning to digital lodgement. Where electronic lodgement is unavailable, Chamberlains can manage compliant manual lodgement under Landgate procedures.

Understanding the ACT’s Gradual Transition to Digital Conveyancing

Article Summary

• As the ACT progresses toward expanded eConveyancing, lodgement will become more convenient and transparent.
• During the transition period, confusion may arise regarding which dealings can be handled electronically – Chamberlains can assist.
• As the ACT increases electronic capability, subscriber obligations will also evolve, making compliance essential.

As the ACT steadily expands its capacity for electronic conveyancing and digital lodgement, subscribers must be aware of ongoing changes in the land-titling environment. Covid-19 disruptions created delays in manual processing and highlighted the need for digital transition. Chamberlains is across these developments and can help you navigate the emerging stages of eConveyancing in the ACT.

ACT transition to eConveyancing

The ACT Land Titles Office (within Access Canberra) is progressing toward increasing use of electronic conveyancing platforms. Although the ACT has not yet mandated 100% electronic lodgement, the government has announced staged development of digital capability across a range of dealings, with further expansion anticipated as ELNO integrations mature.

Two key transition features include:

• Continued phasing-out of reliance on paper Certificates of Title (which have been largely superseded by the electronic Register)
• Progressive expansion of dealings able to be lodged electronically through ELNOs such as PEXA

As the ACT transitions away from paper, benefits include smoother transactions, faster turnaround times, reduced reliance on physical attendance and increased visibility over workflow and compliance.

Residual documents and lodging paper documents during Covid-19

The ACT does not use the NSW concept of “Residual Documents”, but maintains a distinction between ELNO-enabled dealings and those still requiring manual lodgement. Covid-19 restrictions resulted in increased acceptance of online lodgement channels, including secure digital delivery of paper dealings.

Chamberlains can lodge a wide range of dealings electronically where available, including Transfers, Mortgages, Caveats and Priority Notices.

How Chamberlains Canberra conveyancers can assist you

As the ACT continues developing its digital infrastructure, consumers seeking to lodge dealings electronically will increasingly rely on ELNO subscribers. Chamberlains ensures compliance with Participation Rules adopted under the Electronic Conveyancing National Law (ECNL), including VOI, Client Authorisations and Right to Deal verification.

We can provide updated lists of current electronically-enabled dealings and anticipated future digital categories. Where electronic lodgement is unavailable, we can manage manual lodgement under the ACT Land Titles Office procedures.

Queensland’s Move Toward Expanded eConveyancing: What You Need to Know

Article Summary

• As Queensland continues transitioning to broader eConveyancing, the lodgement of dealings will become more efficient and transparent.
• There may be confusion between ELNO-enabled dealings and paper-based exceptions — Chamberlains can guide you through this.
• As Queensland expands its electronic requirements, subscriber responsibilities will shift, making compliance essential.

As Queensland continues expanding the scope of electronic dealings and eConveyancing, subscribers must be aware of numerous operational and compliance changes. Covid-19 disruptions have also contributed to delays in certain electronic processes and increased reliance on digital lodgement. Chamberlains remains across these developments and can help you navigate the next stages of Queensland’s eConveyancing transition.

Queensland transition to eConveyancing

Queensland’s Titles Registry (now administered by Queensland Titles Registry Pty Ltd as part of the Queensland Future Fund) has progressively increased the range of dealings required to be lodged electronically. The goal is to continue reducing paper-based transactions and to move toward a fully digital conveyancing environment. Queensland has been implementing mandatory electronic lodgement for various dealings in stages, with significant expansion from 2022 onwards under the Land Title Regulation 2022.

Two major elements are central to the transition:

• Progressive removal of paper Certificates of Title and reliance on the Titles Registry’s electronic record as the single source of truth
• Increasing classes of land dealings that must be lodged electronically through approved ELNOs such as PEXA and Sympli

Paper Certificates of Title were abolished in Queensland in 2019 and no longer carry legal effect. All ownership and transaction information is now determined solely by the Titles Register. As electronic lodgement expands, benefits include simplified transactions, faster registration turnaround, reduced manual processes, and increased transactional transparency.

Residual documents and lodging paper documents during Covid-19

Queensland does not use the NSW terminology of “Residual Documents”, but maintains a similar concept through “non-ELNO-enabled dealings”. These dealings are progressively being converted into electronic formats. During Covid-19 restrictions, temporary processes permitted limited paper lodgment by mail or drop-box where ELNO lodgement was unavailable.

Chamberlains can electronically lodge most mainstream dealings in Queensland, including Transfers, Mortgages, Releases, Caveats, Priority Notices and more.

How Chamberlains’ Brisbane conveyancers can assist you

As additional dealings become e-mandated, consumers will increasingly need to use an ELNO subscriber. Chamberlains ensures compliance with Queensland’s eConveyancing Participation Rules, including VOI requirements, Client Authorisations and Right to Deal verification.

We can provide you with a full list of currently ELNO-enabled dealings and future categories expected to transition. Where digital lodgement is unavailable, we can manage manual lodgement under Titles Registry protocols.

Navigating NSW’s transition to 100% eConveyancing with Chamberlains

Article Summary

 

• As NSW transitions to 100% eConveyancing, lodgement will become more convenient and transparent.
• In the meantime, confusion may arise between Residual documents and interim online paper lodgment – Chamberlains can guide you.
• As NSW becomes fully electronic, subscriber responsibilities will shift, making compliance essential.

As NSW transitions to 100% electronic dealings and eConveyancing, there are many changes occurring that subscribers must be aware of. In the milieu of Covid-19, there have been many delays to eConveyancing and the release of residual documents, as well as confusion surrounding the interim process of paper lodgments online due to the state-wide lockdown. Chamberlains is across such issues and here to help you navigate these next stages in the eConveyancing transition.

NSW transition to eConveyancing

As announced by the NSW Land Registry Services on 10th May 2021, the NSW property industry is seeing extensive changes in the transition to digital property transactions. The goal is to see the elimination of paper dealings by the end of this year, marking a change to the working and compliance procedures for practitioners. The transition to electronic paper dealings has occurred in stages. Originally, the aim was to be 100% electronic by August 2021 but this has been extended to 11 October 2021, with two significant changes:

• Certificates of Title (CT) and the control of the right to deal (CoRD) framework will be cancelled
• A move to all land dealings having to be lodged electronically (“100% eConveyancing”)

The cancellation of CT’s will occur on 11 October 2021, known as “cessation day”. Under the Real Property Act 1900, from cessation day all CT’s will have no legal effect, and no more CT’s will be issued. CoRD will also no longer be issued to ADIs, removing the requirement for CoRD holder consent, though mortgagee consent will still be needed for certain dealings. These changes alter multi-party workspace requirements in PEXA, consent processes, and physical title usage at NSW LRS. Benefits include faster registration, seamless transactions, electronic requisitions, reduced manual steps and greater transparency.

Residual documents and lodging paper documents during Covid-19

Residual documents are a large collection of documents that previously had to be lodged in paper. They are structured with data elements that contain information recorded on the Register, improving technical functionality of NSW LRS and ELNOs. Major changes have been introduced in three stages, beginning 22 March 2021, with remaining stages commencing 11 October 2021.

Chamberlains can lodge mainstream and other dealings electronically, including Caveats, Mortgages, Transfers, Transmission Applications, Leases, Priority Notices and more.

How Chamberlains can assist you

As electronic dealings reach their mandated date, demand for Sydney & Newcastle conveyancers and solicitors will rise, as consumers are required to use an ELNO subscriber. Chamberlains’ Sydney conveyancers navigate these requirements and ensure compliance with ARNECC rules, including proper VOI, confirmation of Right to Deal, and obtaining the correct authorities.

We can provide a full list of available residual documents and those mandated from October. We can also lodge paper documents online during Covid-19 restrictions.

It is undeniable that the size and complexity of strata developments have been increasing in the ACT, following in the footsteps of other states and territories.

The ACT Government has recognized the need for our legislation to meet the unique needs of the complex buildings and the requirements of community ownership. As a result, a suite of amendments has been introduced to our unit titling and civil property legislation.

Among the more significant of these amendments are the introduction of Building Management Committee (BMC) structures and the requirement for certain complexes to develop and register a Building Management Statement (BMS).

The legislation regulating these structures is can be challenging to decipher. Still, it is essential for both owners and developers to have a sound working understanding of how these structures operate when they are required and what opportunities they present.

When is a Building Management Committee Required?

Although it may seem confusing at first, understanding when a BMC is required is key to appreciating the opportunities this new governance mechanism contains. In a regular units plan, each building level is divided into individual parcels of land, allocating select units for individual ownership and designated areas for common ownership (the ‘common property’).

In a more complex subdivision (known as a ‘volumetric subdivision’, ‘stratum subdivision’ or ‘air-space subdivision’), the building is essentially divided by height based on usage types. 

This means that you can have multiple owners existing within one building envelope – for example, residential units plans, a hotel and a commercial owner all co-existing within one shared building. When numerous owners (or ‘stratum leasees’) exist within a connected building envelope, a BMC must be implemented.

It is important to note that this does not mean that a mixed-use units plan must implement a BMC. In a mixed-use units plan, there is only one stratum lessee – the Owners Corporation. It is only if there are multiple crown leases existing within a single building envelope that a BMC is required under the legislation.

Why is a Building Management Committee Useful?

The essential purpose of a BMC is to regulate the different user groups within a single building envelope. This has never really been a clear option in the ACT prior to implementing the amended legislation, which has resulted in different user groups ending up in disputes over their various goals and objectives for their building.

With a BMC in place, these previously unregulated user groups now have a mechanism by which to ensure that the governance of their building can be voted on, adapted and recorded against their legal titles. 

Perhaps most significantly, a BMC can regulate and distribute costs fairly and accurately across user groups. For example, if there is a pool that is exclusively available to the hotel owners in a building, the hotel can now be responsible for paying 100% of the maintenance costs of the pool under the BMS.

The BMS will contain a shared facilities register which will detail the common facilities shared between the user groups and the percentages in which the user groups will be responsible for contributing to the maintenance of those facilities based on their usage. 

What is a Building Management Statement?

A Building Management Statement (known as a ‘BMS’ in the ACT or Strata Management Statement / ‘SMS” in NSW) is the key governance document for the BMC. As noted above, the BMS contains the shared facilities register, which will identify and allocate the shared costs of facilities within the building envelope.

The costs must be allocated fairly between the user groups and must be reviewed regularly by the BMC to ensure that the distribution is still accurate.

The BMS must be registered over the title of the properties it deals with and is the principal binding document of the user groups it regulates. This means that a BMS will override the rules of an Owners Corporation or Community Management Statement to the extent that they are inconsistent. The requirement to have the BMS registered is a massive positive for owners and developers, as the clear disclosure of obligations for prospective buyers will eliminate the current confusion and uncertainty around owning in these more complex developments.

As an important side note, developers of volumetric subdivisions will now be required to lodge their BMS for approval with their unit title applications. This provides a unique opportunity for developers to clearly disclose to prospective purchasers what the shared facilities and arrangements will be between the different user groups within a building envelope.

A BMS can be a complex document and must be customized to take into account the unique requirements of each building it is regulating. There are several items that a BMS must include under the legislation, including providing a mechanism to settle disputes, insurance obligations and voting mechanisms, among other items.

Getting your BMS right is the key to ensuring the smooth operation of your building, and now is the time to take advantage of this powerful new tool to resolve and prevent disputes between competing user groups.

If you would like to discuss establishing a BMS for your complex, please contact our conveyancing specialist team, who will be pleased to discuss further with you. 

**Assisted by: Alex Miglietti**

To continue our introductory guide series, we would like to turn now to Alternative Rules. If you are familiar with strata living, you would likely have encountered terms like ‘default rules’ or ‘house rules’. To ensure that all members of the Owners Corporation can live together peacefully and co-operatively, an Owners Corporation generally finds it desirable to implement rules to ensure that all members are on the same page.

Rules can also provide a mechanism by which the Owners Corporation can inform their members about how they intend to use the discretionary powers granted by the Unit Titles (Management) Act 2011.

What exactly do the new amendments change?

As part of the ACT Government’s suite of legislative amendments introduced in November 2020, an Owners Corporation is now required to have a single set of consolidated rules. Previously, it was common for an Owners Corporation to implement both the ‘Default Rules’ (that is, the basic set of rules for all Owners Corporations prescribed by the Unit Titles (Management) Act 2011) and their own set of ‘House Rules’.

While the Default Rules were enforceable, House Rules are better framed as ‘guidelines’ for owners and executive committee members to follow. An Owners Corporation could also seek to amend or add to the Default Rules by passing and registering a special resolution.

In practice, this system had several key issues. Firstly, the distinction between ‘Default Rules’ and ‘House Rules’ was often confusing for current members of the Owners Corporation and people looking to buy into the complex alike.

Secondly, it was difficult to keep track of the existing sets of rules, as each time a rule was amended or added to the relevant special resolution implementing the change would be registered over the legal title for the complex.

Purchasers who were trying to complete their due diligence would often be confronted with decades worth of meeting minutes, which they would need to sort through to find the relevant special resolutions amending the Default Rules or updating House Rules.

Rather than continue with this confusing and ultimately frustrating process, an Owners Corporation may now seek to create a single consolidated set of rules which will be registered over the legal title for the complex.

When the consolidated rules need to be amended, the document can simply be updated following the passing of the relevant resolutions and the updated document registered over the legal title. The rules of the Owners Corporation will be easily visible to its current members and prospective members alike.

What types of rules can an Owners Corporation create?

In addition to the ability to create a consolidated set of rules, an Owners Corporation may now, by special resolution, create a bespoke set of ‘Alternative Rules’ to the standard Default Rules. While Alternative Rules can only amend certain Default Rules, they can create additional rules that will assist in the management of the Owners Corporation.

The great benefit of Alternative Rules is that they can be tailored to meet the particular needs of the Owners Corporation – for example, a mixed-use development with both commercial and residential owners may need specific rules to create a process for commercial fit-out works to ensure that residential owners are not inconvenienced.

For the first time, an Owners Corporation may also create an Alternative Rule that determines levy contributions on a basis other than unit entitlement. For example, this means that an Owners Corporation may, by special resolution, determine that only a particular group of owners need to contribute to the maintenance of a facility.

This ability to create a ‘user-pays’ system will be of great benefit to mixed-use developments across the ACT, which disputes have previously plagued. 

An Alternative Rule will now also include special privileges, in which a unit owner or person with interest in the unit may be granted a right to use the common property in a manner that is in addition to, or restrictive of, the rights of other people.

For example, an owner may be granted a special privilege to exclusively use the pool area in a complex. In exchange, that owner may be required to pay for all of the maintenance and water usage generated by the pool. If this special privilege right went for more than three months, it would need to be registered as an Alternative Rule of the Owners Corporation. 

It is important to note that the Unit Titles (Management) Act 2011 provides in Section 108(3) that an Alternative Rule will not be invalid unless it is:

1. Inconsistent with an ACT law;
2. Inconsistent with a Building Management Statement;
3. Incompatible with a human right as defined by the Human Rights Act 2004, or is otherwise harsh, unconscionable or oppressive;
4. Giving a function to the Owners Corporation that is not incidental or ancillary to the exercise of its functions under the Unit Titles (Management) Act 2011 or under a Building Management Statement;
5. Prohibiting or restricting the installation, operation or maintenance of sustainability infrastructure in or on the common property or in a unit;
6. Inconsistent with an ACAT order which required a rule to be repealed or made, unless the Alternative Rule is made by unanimous resolution; or
7. Prohibiting a unit owner from keeping an animal or allowing an animal to be kept within the unit or the common property in any circumstances.

It is important to remember that an Alternative Rule must not only comply with the requirements of the Unit Titles (Management) Act 2011 – they must not fall foul of any piece of relevant legislation. This means that when an Owners Corporation is considering making Alternative Rules, it would be prudent for the Owners Corporation to obtain legal advice.

If the Owners Corporation wants to ensure that their Alternative Rules will be enforceable, it is best to make sure that the rules have been drafted compliantly by a solicitor.

If you feel that your complex could benefit from implementing a consolidated set of Alternative Rules, please get in touch with our conveyancing specialist team, who will be pleased to discuss further with you. 

**Assisted by: Alex Miglietti**

Work Injury Damages Across Australia: How Different States Approach Employer Negligence Claims

Workers who suffer injuries because of their employer’s negligence may have the right to pursue work injury damages (WID) or common law damages, depending on the jurisdiction. While all states apply negligence principles, the legislation, available damages, and procedural gateways differ significantly between NSW, Queensland, the ACT, and Western Australia.

This consolidated guide outlines how WID claims operate across these jurisdictions, supported by key case examples and statutory frameworks.

 

1. Understanding Work Injury Damages in Australia

Regardless of location, a worker pursuing damages must establish:

• The employer owed a duty of care;
• The employer breached that duty by failing to take reasonable precautions; and
• The worker suffered injury and economic loss as a result.

Across all states, these claims commonly arise in industries involving physical labour, animals, machinery, or hazardous tasks, where employers must implement adequate systems of work, supervision, training, and assistance.

Although the underlying principles are consistent, the entitlement to damages and statutory thresholds vary widely.

 

Comparison Table: Key Features of Work Injury Damages in Each Jurisdiction

Jurisdiction	Governing Legislation	Available Damages	Threshold Requirements	Example / Context
NSW	Workers Compensation Act 1987; Workplace Injury Management and Workers Compensation Act 1998	Past and future economic loss only	Must prove ≥15% Whole Person Impairment (WPI)	McCormick v Mt Pleasant Stud Farm: $1.395M awarded for failure to provide adequate assistance
QLD	Workers’ Compensation and Rehabilitation Act 2003	Economic loss + general damages (ISV-based)	Must receive a Notice of Assessment & meet procedural gateways	Archer v Simon Transport: employer must take precautions for foreseeable risks
ACT	Workers Compensation Act 1951; Workers’ Compensation and Safety Act 2011	Broad damages including economic loss, pain & suffering, loss of amenities	No restrictive caps like NSW/QLD	Claims often arise from hazardous duties without supervision
WA	Workers’ Compensation and Injury Management Act 2023	Past & future earning capacity loss, with statutory limits	Must elect to sue + meet minimum WPI threshold	Claims common in agriculture, livestock and machinery work

 

2. New South Wales – McCormick v Mt Pleasant Stud Farm Pty Ltd (No. 2) [2021] NSWDC 489

In NSW, WID claims sit at the intersection of negligence and the statutory workers compensation scheme. Damages are strictly limited to:

• Past loss of earnings
• Future loss of earning capacity

In McCormick, the plaintiff, an experienced horse trainer, fell while breaking in a young horse, a recognised hazardous task. The Court found the employer negligent for failing to provide an assistant capable of controlling the horse during the process.

The worker’s ongoing neck, arm and shoulder injuries rendered him unfit for his occupation. Sidis ADCJ held that, even if some residual capacity existed, the plaintiff would present poorly to potential employers due to his disabilities.

He received $1,395,525 for economic loss.

 

3. Queensland – Archer v Simon Transport Pty Ltd [2016] QCA 168

Queensland workers may pursue common law damages if they can:

• Prove employer negligence, and
• Satisfy impairment and procedural gateways managed by WorkCover Queensland.

Unlike NSW, general damages for pain and suffering may be awarded, based on an Injury Scale Value (ISV).

In Archer, although the dispute concerned procedural matters, the case reinforced that employers must take reasonable precautions against foreseeable risks, especially where tasks involve heavy machinery, lifting, or hazardous work environments.

A typical Queensland claim involves injuries to the back, spine, shoulders, or upper limbs, often preventing a return to the worker’s usual role and supporting substantial future economic loss awards.

 

4. Australian Capital Territory – Common Law Damages Under ACT Legislation

In the ACT, work injury damages can be pursued under:

• Workers Compensation Act 1951
• Workers’ Compensation and Safety Act 2011
• Common law negligence principles

The ACT permits broader damages than NSW or QLD, including:

• Past and future economic loss
• Pain and suffering
• Loss of amenities of life

There are no restrictive caps similar to NSW’s WID limitations or Queensland’s ISV system.

Claims often arise from hazardous duties, such as handling animals or machinery, performed without adequate supervision, training, or assistance. Where permanent disability prevents a worker from returning to meaningful employment, significant compensation may be awarded.

5. Western Australia – Common Law Damages Under the Workers’ Compensation and Injury Management Act 2023

In WA, injured workers must:

1. Elect to pursue common law damages, and
2. Meet a statutory whole person impairment threshold.

WA follows a more structured statutory framework, limiting compensable damages to:

• Past wage loss
• Future loss of earning capacity

Similar to NSW, non-economic damages are constrained.

Industries involving livestock, machinery, or agricultural work frequently give rise to claims. Employers must implement safe systems of work, including training, adequate supervision, and risk management, particularly where duties carry inherent unpredictability or physical risk.

Courts focus on whether the worker can return to physically demanding employment. If disability prevents such employment, future economic loss can be substantial.

Conclusion: Understanding Your Rights Across Jurisdictions

While all Australian jurisdictions allow injured workers to claim damages where employer negligence is proven, each state differs significantly in:

• Available heads of damage
• Eligibility thresholds
• Procedural requirements

In summary:

• NSW and WA strictly limit damages to economic loss,
• QLD uses an ISV system allowing broader recovery, and
• ACT offers the widest scope for common law damages.

Across all regions, courts consistently assess whether the worker retains any meaningful earning capacity. Where disabilities severely impact employability, substantial compensation may be awarded.

If you have suffered a work-related injury due to employer negligence, obtaining legal advice early is essential to ensure you meet statutory requirements and maximise your entitlement to compensation.

Chamberlains can proudly announce that we are one of the participating law firms in UNICEF’s GoodWill Project.

The idea behind The GoodWILL Project is simple, to connect people who would like to leave a gift in their Will to UNICEF Australia with solicitors who can write their Will free of charge.

By leaving a gift to UNICEF in your Will, you will help provide vital support to vulnerable children in almost 200 countries around the world.

UNICEF works in the world’s toughest places to reach the most disadvantaged children and adolescents – and to protect the rights of every child, everywhere. Across more than 190 countries and territories, we do whatever it takes to help children survive, thrive and fulfill their potential, from early childhood through adolescence.

The world’s largest provider of vaccines, we support child health and nutrition, safe water and sanitation, quality education and skill building, HIV prevention and treatment for mothers and babies, and the protection of children and adolescents from violence and exploitation.

Before, during and after humanitarian emergencies, UNICEF is on the ground, bringing lifesaving help and hope to children and families. Non-political and impartial, we are never neutral when it comes to defending children’s rights and safeguarding their lives and futures.

One example of UNICEF’s recent work can be seen in Afghanistan, where they are supporting families with emergency water, hygiene and sanitation (WASH) services, including the provision of safe water through water trucking, construction and repair of handpumps, along with the provision of supplies and hygiene promotion. To respond to the rise of COVID-19 cases in rural areas, UNICEF has also supplied personal protective equipment, including masks, to health facilities and district hospitals.

You can also read more about the GoodWill Project through UNICEF’s Fact Sheet.

The solicitors at Chamberlains are honoured to be part of a project that will help children across the world.

If you would like to leave a gift to UNICEF in your Will, please head to The GoodWill Project. 

What Is Contractual Capacity?

When determining the parties to a contract, it is important to consider if the parties have contractual capacity to enter into legal relations. If a party falls within a category of persons that lack the legal qualification or capacity to enter into a contract, it is likely that the contract will not be enforceable against them.

What is the Presumption of Capacity?

On a preliminary basis, it is important to remember the presumption of capacity, which states that where a party enters into a contract, it is presumed that the party has legal capacity to do so. Such a presumption may however be rebutted by evidence showing that the party lacks capacity. In this regard, different rules apply for different categories of people, for instance – minors, people with mental disabilities or those who are intoxicated, corporations (including partnerships and unincorporated associations), the Crown and bankrupts. This article will focus on a couple of these classes of people.

How Do Mental Disabilities Affect Contractual Capacity?

When Can a Contract Be Voidable?

Typically, a contract will be voidable if a party can put forward evidence that:

• Due to them having a certified mental disorder, they were unable to understand the nature and consequences of entering into the contract; and
• The other party had knowledge, or ought to have had knowledge, about this mental disability (Knowledge Criterion).

This means that even if the contract entered was ‘unfair’ to the party alleged to have been lacking capacity, the presumption of capacity will not be rebutted until the Knowledge Criterion has been satisfied (see Hart v O’Connor [1985] 1 AC 1000).

What Did the Court Decide in Gibbons v Wright?

In Gibbons v Wright (1954) 91 CLR 423, the High Court of Australia was required to determine if the plaintiff would become the sole registered proprietor of a property after she argued that her two sisters (who were co-owners) lacked capacity when they executed documents to change the ownership of that property from joint tenancy to tenants in common. 

The Court stated the threshold regarding the soundness of the parties’ minds, being that, the parties ought to have had the capability to understand the general nature of their participation in the contract and the capacity to understand the nature of the transaction when explained. Here, the plaintiff’s sisters had already died and the criteria for capacity was not met, which means that unless the plaintiff’s sisters sought to avoid the contract during their lifetime, the contract would remain valid.

It is also noteworthy that the degree of a party’s incapacity may also become relevant to determine if the other party acted unconscionably during the negotiation of the contract’s terms (see Blomley v Ryan (1954) 99 CLR 362). Here, even if capacity has been satisfied, the contract may nevertheless become unenforceable if unconscionable conduct is present.

Can Bankrupts Enter Into Contracts?

Whilst bankrupts are not prohibited from entering into contracts, some sections of the Bankruptcy Act 1966 (Cth) (Act) may classify it as an offence if the bankrupt entered into certain transactions. For example, a bankrupt will commit an offence and be liable to penalty pursuant to section 269 of the Act if they obtain credit greater than $5,881.00 without disclosing that they are a bankrupt.

Why Does Capacity Matter?

The key takeaway is that it is extremely important to check that the party you may be entering into a contract with has the requisite capacity to enter into legal relations. If the other party is successful in arguing that you ought to have known about them lacking capacity, this may render the contract unenforceable.

Assisted by Neil Bookseller

If you have any questions or claims regarding contract law, please contact Mr Stipe Vuleta or Ms Sayward McKeown of our litigation & dispute resolution team today. on (02) 6188 3600.