A victim of one of Australia’s most notorious paedophile priests has commenced proceedings against law firm Slater and Gordon. Stephen (who has requested his last name not be used) claims the law firm negligently advised him on the limits of his compensation claim against the Catholic Church. Stephen was paid out $75,000 for horrific sexual abuse under the National Redress Scheme, along with an apology from archbishop Denis Hart. However, as outlined in his Statement of Claim, had Stephen commenced common law proceedings he may have been entitled to between $1,000,000 to $5,000,000. This case highlights the various options available to victims and the necessity of obtaining clear legal advice throughout.
Stephen’s Case
Stephen was sexually assaulted and raped by priest Michael Glennon, who also was a karate instructor and football coach at St Monica’s Primary School in Moonee Ponds in Melbourne in the mid-1970s. Glennon died in Ararat Prison in 2014 while serving a 10-year sentence for a string of child sex offences committed between 1973 and 1991, but had previously been incarcerated on four other occasions for clerical abuse.
In 2016, Stephen outlined horrific details of his encounter with Glennon after seeking legal representation from Slater and Gordon. These included a graphic rape account against a tree at the age of 12.
What is the Redress Scheme?
The Royal Commission into Institutional Responses to Child Sexual Abuse made a number of recommendations including that a redress scheme be set up by the Australian Government. The National Redress Scheme began in July 2018. Survivors of child sexual abuse that took place in an institution can apply. However, payments are now capped at $150,000, growing from $70,000 during Stephen’s period. Survivors are required to sign a deed of settlement waiving their right to take civil action. Victims received an average payout of $36,100, according to church figures provided to the Royal Commission into Institutional Responses to Child Sexual Abuse. Despite having more risks, there are no caps to the amount that can be claimed in common law claims.
Slater and Gordon have stated they will aggressively defend the case, which could have implications for more than 320 victims of clerical abuse, who received about $10 million from the church’s compensation scheme set up in 1996 by George Pell.
Take-Aways
Stephen said he had been urged by a managing clerk at Slater and Gordon to pursue compensation under the Scheme, rather than launching civil proceedings against the church. Historic sexual abuse cases are often complex and the current legislation gives survivors a range of options. This case highlights the need for law firms to allow the client to make their own decisions, with clear advice in relation to where their options may lead.
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In light of the present Covid situation an issue has arisen with witnessing documents, in particular Affidavits and appearing in Court.
The Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 under the Electronic Transactions Act 2000 together with the Court Rules and respective Practice Directions have provided a means of witnessing documents by audio-visual link (AVL) or appearing by telephone or AVL at the trial.
In terms of witnessing documents it is no longer a necessity to sign the documents in person and this can now be done as simply as over zoom or another audio visual means.
But what are the requirements:
Generally, the regulation suggests a witness may sign a document counterpart as soon as practicable after watching the signatory sign the document or scan the document providing an electronic signature, countersigning the document as soon as practicable. This does not take away from other important factors such a mental capacity or confirming the persons identity.
In terms of appearing in court it will ultimately depend on the Court with which you are dealing with and relevant Rules and or Practice Directions.
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When a party to a relationship receives an inheritance during the relationship or around the time of separation, it can create uncertainty and impede negotiations and resolution of your family law matter.
In family law matters, this issue turns on the facts of your case and the timing of the inheritance received. There is a need to firstly evaluate the inheritance within the circumstances of your case and to then determine how it will likely be treated in your property settlement.
When assessing an inheritance, some key considerations include:
The issue of inheritances can be complex and if you or your ex former partner or spouse are about to become or are the recipient of an inheritance, we recommend you seek legal advice. The family law team at Chamberlains can be contacted at familylaw@chamberlains.com.au
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As the world grapples with the pressure and wide-spread impact of the COVID-19 pandemic, in family law, we are now experiencing further delays in the pursuit of relief from the Court.
It is usually the case that the Federal Circuit Court of Australia and Family Court of Australia release a practice direction indicating a filing deadline for parenting matters that will be heard before Christmas. Usually this date falls sometime in late-November.
Now, as we look in the face the COVID-19 and the extreme burden this has caused on the Court’s resources, it has never been so important to get organised and start planning the Christmas arrangements for your family.
In family law parenting matters, there are three ways to resolve a dispute, namely:
It is usually the case that parties to a dispute who are able to reach an agreement prefer to formalise their agreement by way of Consent Orders. In doing so, with a view to settling your Christmas arrangements, we recommend you start this process now so that your family has certainty moving through the holiday period.
If you are currently in proceedings or you and your former spouse are unable to agree what the parenting arrangements should be and you need the Court’s assistance, we highly recommend you speak to a lawyer as soon as possible to ensure that your matter will be listed before a Judge before Christmas. The family law team at Chamberlains can be contacted at familylaw@chamberlains.com.au
In family law, we are often confronted with difficult situations following the breakdown of a relationship. A common scenario is where two people live together in a relationship, one party is the primary breadwinner and the other party stays at home to care for the children.
Not unusual and by no means the only scenario, but this example gives rise to the consideration of spousal maintenance.
When a married or de facto couple separates, they enliven the jurisdiction of the Family Law Act 1975 (Cth) to assist with the adjustment and separation of their finances and parenting arrangements. So too, spousal maintenance can come into play.
It is important to know that there is no automatic “right” to spousal maintenance in Australia. At law, there is a two-step test to determine whether any maintenance should be paid, as follows:
Step 1: assess whether the person asking for maintenance has a “need”.
If a “need” for maintenance is established, we move to step 2. If a “need” is not established, the test stops here.
Step 2: assess whether the person being asked to pay maintenance has the capacity to pay.
There are many different considerations made when determining whether or not an agreement or order for spousal maintenance should be made. Some of these factors include:
Spousal maintenance can be paid in two ways:
There are arguments for and against both options and ultimately, the payment terms turn on the facts of your case.
It is also important to know that spousal maintenance is an entirely different issue to child support.
Time limits apply regarding seeking spousal maintenance. If you are in the process of separating or have already separated, it is important that you know your rights. If you are contemplating spousal maintenance, we highly recommend you speak to a lawyer in the Chamberlains Family Law Team to ascertain specific advice as to your circumstances.
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If you hear the term “business day” you are likely to assume this means within the hours of 9AM-5PM. This may lead to feeling additional pressure when a document is required to be served that day, but it has yet to be finalised prior to this “5PM deadline”.
The Court considered this issue in Mohamed v Farah [2004] NSWSC 482, where it was held that service may be effected outside the hours of 9AM to 5PM and it will still be considered to be served on that calendar day. The Court held that whether someone is served at 3PM or 10PM is to be considered no different, as the day continues up until midnight.
It is important to note that often parties will include their own definition of “business day” in the terms of the contract. Terms of a contract between parties expressly defining a business day for the purposes of service will overrule these general law principles if a dispute arises.
This may come as a relief to many people, especially given the current climate where working hours are more flexible than ever and working from home arrangements are becoming more prevalent.
The Plaintiff’s mother was injured in a motor vehicle accident in New South Wales whilst in her final term of her pregnancy with the Plaintiff. The driver of the other motor vehicle involved in the accident admitted fault but denied that the accident caused the Plaintiff’s brain damage.
The Plaintiff’s mother was taken to hospital where she alleges that the hospital failed to properly monitor her son’s condition (as a foetus), as a result of which he suffered hypoxia leading to brain damage.
A major challenge for all parties in this case was the determination of the cause of the Plaintiff’s brain injury i.e was it caused by trauma from the motor vehicle accident or hypoxia prior to delivery at the hospital, or a combination of both.
The Plaintiff commenced proceedings against the driver of the other motor vehicle in the District Court of New South Wales. The Plaintiff later commenced separate proceedings against the Hunter New England Local Health District in the NSW Supreme Court. The proceedings were combined, and the matter came to his Honour Ierace J following a settlement reached between all parties. The single issue in both proceedings was causation which was described by his as “very much a live issue”.
The Plaintiff (in the motor vehicle proceedings) alleged that he suffered mild physical and developmental issues because of the accident which would lead to future serial or long-term unemployment. As against the hospital, the Plaintiff alleged that the hospital was negligent in the care it provided on and shortly after the mother’s arrival, in not properly monitoring the condition of the foetus. Later in the same day, the plaintiff was delivered via a caesarean section and suffered a degree of hypoxia prior to delivery.
Ultimately, the New South Wales Supreme Court exercised it protective jurisdiction to approve settlement of the claim in the amount of $3,300,000. See Wells bht McGuffog v Grahaml Wells bht McGuffog v Hunter New England Local Health District [2020] NSWSC 965.
This case, although not new or novel to the law, shows the importance of the court’s power to grant approval for settlements reached on behalf of people under legal disabilities. His Honour adopted the approach set out in the case of Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336, in which Hammerschlag J observed that the principle for the court to grant approval for a compromise to be entered into by the disabled person must be from the view that it is beneficial to his or her interests. It was taken into account the possibility that an award of damages at the conclusion of a full hearing may deliver a greater quantum of damages than the proposed settlement amounts but ultimately with the confidential advice from the plaintiffs’ counsel and the affidavits of the instructing solicitor and mother, the court was satisfied that the settlements were in the best interests of the plaintiff.
Ordinarily, on approval of such matters, the Court will make orders for the settlement money to be paid into Court and then paid out to a trustee so that the money can be managed for the benefit of the Plaintiff. That process is designed to protect the plaintiff from depleting the money, particularly when the plaintiff may lack the financial skills necessary to manage such a large sum of money. In the case of large awards of money, the trustee will usually seek advice from an independent financial advisor to determine how best to use the plaintiff’s money for his or her benefit.
For more information about that process and the high standard of care that must be afforded to a plaintiff by such advisors, see the decision of the Queensland Court of Appeal of HAP2 Pty Ltd v Bankier [2020] QCA 152 in which the injured person sought advice from a financial planner following receipt of an approved settlement of $2million. In that case, the financial manager failed to advise the injured person about the risks of spending her aware of damages, such that those damages were depleted well before they ought to have been.
Bankruptcy is a legal process which declares that a person is unable to pay their debts. It can absolve them of most debts and allow the person to have a fresh start. It can be seen as an exchange of a person’s assets and financial control for legal protection from the person’s creditors.
There are two ways to enter bankruptcy. You can either:
(a) enter voluntary bankruptcy; or
(b) someone you owe money to (a creditor) can make you bankrupt through a court process.
1.2 Who manages my bankruptcy?
When you become bankrupt, a trustee is appointed to manage your bankruptcy. This can be either:
(a) the Official Trustee in Bankruptcy of the Australian Financial Security Authority (AFSA); or
(b) you can nominate a registered trustee of your choice.
The trustee’s fees are generally paid out of the funds recovered in the administration of the bankruptcy.
1.3 How long does bankruptcy last?
The period of bankruptcy usually lasts for three years and one day.
This period can be extended by the trustee for up to 5 or 8 years.
AFSA may assist in determining when your bankruptcy ends, as well as discussing with your Official Trustee.
1.4 How do I confirm if someone is bankrupt?
The Bankruptcy Register Search (BRS) is an online service that allows access to personal insolvency information. For the cost of $15, a search can be conducted on the register to find information about a person’s financial position.
Do I have to appear in Court if I am bankrupt?
You are not necessarily required to make court appearances for becoming bankrupt.
Depending on your circumstances, you may be required to attend an examination before a Court if you have failed to meet your obligations as a bankrupt.
1.5 Is my bankruptcy advertised?
Your bankruptcy is generally not advertised. However, A bankrupt is listed on the National Personal Insolvency Index permanently, which can be searched by members of the public.
2.1 What happens to my assets?
An asset is anything of value that you possess, such as real estate, vehicles, cash or money in a bank account and tools.
During bankruptcy, your trustee may be able to claim and sell some of your assets. The proceeds from the sale of your assets can be used to repay the money that you owe to creditors.
2.2 What assets can I keep?
During bankruptcy, you are able to keep:
(a) ordinary household items;
(b) tools used to earn an income with a value of up to $3,800; and
(c) vehicle(s) with a value of up to $8,000.
It is important to note that any assets acquired during the period of bankruptcy will also vest in the trustee.
2.3 Will I lose my assets?
Under the Bankruptcy Act 1966, you cannot sell or deal with any of your assets that are not protected (protected assets are ordinary household items; tools and vehicles). The remainder of your assets vest in the trustee.
It is important to note that any assets acquired during the bankruptcy will also vest in the trustee.
2.4 Will I lose my car?
You can keep your vehicle that you use mainly for transport with a value of up to $8,000.
2.5 Will I lose my house?
A house is considered property and thus an asset. Property may include a house, apartment, land, farm or business premises. In bankruptcy, the trustee becomes the owner of the share of any house or property you own. The trustee has control over your property and can sell it to help pay your debts.
2.6 Will I lose my income?
If you earn over a certain amount, half of what you earn above this threshold can be used to pay off your bankruptcy. This threshold amount is updated twice a year and varies depending on several factors such as dependant persons, income tax payable, fringe benefits and child support payments.
There are many misconceptions surrounding income and what happens to it in bankruptcy. There are various jobs that are the responsibility of the trustee in managing a bankrupt’s income. If you have any questions or concerns, do not hesitate to contact our office to discuss your matter.
2.7 What happens to assets that have not been sold by the trustee by the discharge date?
Assets that have not been sold continue to be controlled by the trustee, despite the bankruptcy being discharged.
2.8 Can I avoid bankruptcy by accessing my superannuation to pay my creditors?
Superannuation can be accessed to assist in severe financial hardship, however only in some instances. Contact your superannuation fund to find out whether you are eligible to access your superannuation.
2.9 Can I keep my tax returns?
Tax refunds received from your income earned before the date of bankruptcy is regarded as an asset. Therefore, the tax refund amount vests in the trustee.
2.10 Do I still need to lodge a tax return if I am bankrupt?
Yes, you are still required to lodge a tax return if you are bankrupt.
2.11 What happens if I come into possession of money/assets of a high value?
If you come into possession of a large quantity of money or a valuable asset, such as receiving an inheritance of money, property or other assets; winning the lottery, or becoming the beneficiary of a deceased estate, and this significantly exceeds your unsecured debt, you may be in a position to end your bankruptcy.
3.1 How do I declare bankruptcy?
Essentially, there are two ways to declare bankruptcy, either voluntarily or by way of a creditor in whom you owe money to. Pursuant to section 55 of the Act, you may lodge a debtor’s petition in order to declare yourself bankrupt. You, in your capacity as a debtor, will be deemed bankrupt from the day the petition is accepted by the Official Receiver.
Alternatively, a creditor may lodge a creditor’s petition, simply applying to make you bankrupt due to debts owed and the inability to meet those debts. A creditor may apply for a bankruptcy notice once they have received a court judgment concerning the debts. This usually relates to two or more debts, as well as multiple creditors.
3.2 What happens when I become bankrupt?
A bankrupt is listed on the National Personal Insolvency Index permanently which can be searched by members of the public. A bankrupt will be required to disclose his or her bankruptcy to creditors if seeking credit over the prescribed limit, which is approximately $5,880.
A bankrupt will also have to disclose his or her bankruptcy if trading under a business name and according to section 206B of the Corporations Act 2001 (Cth), a bankrupt cannot manage a company without Court approval.
Bankruptcy may also affect your employment and your ability to hold specific licences, as well as obtain a security clearance. It is advised that, should you declare bankruptcy, you should confirm the conditions of your employment in regards to bankruptcy.
3.3 What are my options? Do I have other options aside from bankruptcy?
Bankruptcy is just one formal option available under the Bankruptcy Act[?] to manage your debt. Other formal options include six-month relief and a debt agreement.
A bankruptcy alternative is a Personal Insolvency Agreement (PIA). A PIA involves the appointment of a trustee to take control of your property and make an offer to your creditors. The offer may be to pay part or all of your debts by instalments or a lump sum. Entering a PIA may have a severe impact on you. It may affect your employment, ability to get credit and will appear on a public register permanently.
Additionally, a debt agreement (DA) is available pursuant to Part IX of the Act. It is an agreement between the debtor and his or her creditors to compromise by paying a percentage of the debts owed over a period of time.
3.4 What do I have to do when I become bankrupt?
When you are bankrupt:
(a) you must provide details of your debts, income and assets to your trustee.
(b) your trustee notifies your creditors that you’re bankrupt – this prevents most creditors from contacting you about your debt.
(c) your trustee can sell certain assets to help pay your debts.
(d) you may need to make compulsory payments if your income exceeds a set amount.
3.5 What are the consequences of bankruptcy? How will bankruptcy affect me?
You are automatically disqualified from managing corporations and cease to be a director, alternate director or secretary of a company unless you have been given leave by the Court to manage corporations.
Bankruptcy may affect your employment, entitlements to hold specific licences, ability to obtain clearances and the ability to travel internationally. You may be required to surrender your passport to the trustee.
3.6 What happens to my debts?
If you enter bankruptcy, you will find that most debts are covered. This means that you no longer have to repay them. In some cases, your trustee may sell your assets or use compulsory payments to help pay your debts. It is essential to confirm the types of debts owed and whom those debts are owed to.
Moreover, where it is determined the debts are secured or unsecured, this will assist in determining exactly what happens to those debts and how the debt is dealt with.
3.7 Will bankruptcy affect my partner’s assets?
There is the possibility that bankruptcy may affect your partner/spouse’s assets. For example, should your partner hold an asset such as a house where you have made monetary contributions to the house, you may hold an equitable interest in the property and hence may affect your partner’s asset.
However, bankruptcy will not affect your partner’s assets if the assets are registered/insured in the name of your partner, and you have no legal or equitable interest in the asset. You should confirm the status of the assets and your interests with a solicitor.
3.8 Will I lose my job?
Bankruptcy may also affect your employment and your ability to hold certain licences, as well as obtain a security clearance. It is advised that, should you declare bankruptcy, you should confirm the conditions of your employment in regards to bankruptcy.
3.9 Discharge from bankruptcy
A bankruptcy currently lasts three years pursuant to section 149 of the Act. A bankruptcy may end early however if an arrangement can be made to annul the bankruptcy.
A bankrupt may seek an annulment of the bankruptcy by making an arrangement with his or her creditors pursuant to section 73 of the Act. This will require the bankrupt to submit a proposal for consideration and the bankruptcy trustee to prepare a report to creditors and to hold a meeting of creditors for them to vote on the proposal.
A trustee may also apply to extend a bankruptcy by objecting to the bankrupt’s discharge pursuant to section 149A of the Act. The grounds upon which an objection may be based are set out in section 149D of the Act and amongst other things include voidable transactions and not providing information to the trustee when required, including disclosing income.
The Australian Building and Construction Commission (ABCC) conducts regular audits of labour hire employers to ensure that they are meeting their obligations under Australian workplace laws.
However, the most recent audit of 63 labour hire employers during the 2019/20 financial year revealed that a substantial 79% did not fulfil their obligations under Australian workplace laws, including not paying their workers correctly or giving their workers payslips, and failing to keep proper records.
The ABCC noted the complex, triangular relationship involved in labour hire agreements – consisting of labour hire businesses supplying a worker to a host employer for an agreed fee – is often a precarious one, particularly for workers, which often discourages them from speaking out about their working conditions.
The ABCC inspectors assess time and wage records for compliance against the Fair Work Act 2009, the Fair Work Regulations 2009 and the relevant awards or enterprise agreements when conducting the audit, which recovered $563,860 for 1337 employees during the 2019/20 financial year, and has recovered more than $2.1 million in wages and entitlements for 3174 construction workers since December 2016.
Given the often inconsistent and precarious nature of work experienced by workers under labour hire agreements, as well as the ramifications faced by labour hire businesses when they fail to fulfil their obligations to workers, it is vital that businesses ensure they have up to date labour hire agreements that comply with Australian workplace laws.
Covid-19 has no doubt added financial pressure and financial uncertainty to many people who have been stood down, lost their jobs or businesses.
An inheritance from a deceased estate during this time may be just the relief a beneficiary desperately needs.
This can lead to beneficiaries pressuring Executors or Administrators (collectively known as Legal Personal Representatives “LPRs”) to distribute the assets of a deceased estate. LPRs may also feel the need and obligation to distribute the estate as soon as possible to help out the beneficiary. However, LPRs must be aware of the waiting times and the risk and liabilities involved in distributing an estate too soon.
Administration of deceased estates are governed by the laws of each State and Territory, all of which have similar provisions about waiting periods and limits to the LPRs liabilities before they can distribute a deceased estate.
All estate debts and liabilities are paid from the assets of the deceased estate, but LPRs may be personally liable to creditors if they have distributed the estate too soon or without legal and financial advice. Section 64 of the Administration and Probate Act (ACT), s99A of the Administration and Probate Act 1958 (Vic) and the Succession Act (NSW) are examples of legislation setting out the waiting time LPRs should take into account when administering and distributing the assets of the deceased estate.
Bankrupted Beneficiary
When making a distribution to a beneficiary it is important for LPRs to confirm that the beneficiary is not bankrupt. Section 58 of the Bankruptcy Act 1966 provides that “after acquired property of the bankrupt vests …..in the trustee in bankruptcy”. This means that the beneficiary’s inheritance may need to be paid to the Trustee in Bankruptcy and not to the beneficiary him/herself.
A beneficiary has a ‘chose in action’ after a person dies and before they receive their inheritance. The chose is action is the right to the proper administration of the estate by the LPRs and the expected receipt of the their inheritance after payment of all estate liabilities, claims and costs. It was made clear in the decision of Official Trustee in Bankruptcy v Schultz [1990] 170 CLR 306 that this right or ‘chose in action’ also passes to the Trustee in Bankruptcy of a bankrupted beneficiary.
Sometimes a beneficiary may ask that the LPRs hold on to their inheritance until ‘after’ they are discharged from bankruptcy. This should not be considered by the LPRs as such action is an attempt to defraud creditors and the interest in the expected inheritance remains vested in the Trustee in Bankruptcy even after the discharge of bankruptcy date. LPRs have an obligation to properly administer the deceased estate and if not properly administered, any persons suffering loss or damage as a result may have a claim against the LPRs.
Administering a deceased estate is more than just collecting assets and distributing the estate to the beneficiaries, it requires a consideration of various legislation. This can be difficult if the LPRs and/or beneficiaries do not understand the process or the law.
At Chamberlains Law Firm we can advise LPRs as to the process and their rights and obligations to properly administer a deceased estate including making applications to the Supreme Court for a Grant of Probate or Letters of Administration.