What is a Will?
A Will is a formal written document that records your wishes and disposes of your assets following your death. It is an important document to have as it protects your assets and addresses other significant issues, such as guardianship of minors and the disposal of your body.
Your Will allows you to appoint an executor/s and decide how your estate is to be divided. An executor is responsible for the administration of your estate and to ensure your wishes are met. Your Will does not come into effect until after your death.
Everyone should have a Will. If you die without a Will, you die ‘intestate’ and your estate will be divided according to a formula governed by the laws of intestacy of a particular State or Territory, which does not take into account your individual wishes or circumstances. The following are some of the main issues you should consider when making a Will.
Formal Requirements of a Will
Not all written documents disposing of assets are Wills. Relevant legislation in each State and Territory dictates a number of requirements for a document to constitute a Will. A document failing to meet these requirements may not be Will, leaving you with an intestate estate at the time of your death. This can have significant implications for the distribution of your estate including potential disputes as to the validity of the document.
Who can make a Will?
A Will can be made by anyone over 18 years of age and of sound mind. This is called ‘Testamentary Capacity’. To have testamentary capacity you must be able to demonstrate that at the time the Will was prepared you understand the nature and effect of the Will. The test of capacity is a legal test and estate planning solicitors are trained to identify if a person does not have testamentary capacity.
If a person requires a Will but does not have ‘capacity’ a special application can be made to the Supreme Court asking the Court to make a Will for that person. These are called ‘court’ made Wills.
Do I need a Will?
Making a Will is the only way to ensure your wishes are followed and to prevent potential disputes regarding your Estate and affairs. It also provides security for loved ones and can help avoid unnecessary and costly complications at the time of your death.
You may think that you do not have substantial assets to justify the cost of getting a Will, however if you have superannuation, it is likely that you will have a life insurance policy attached to your superannuation account and your Estate may be worth considerably more after your death.
Distribution of property
In your Will, you can only dispose of assets that you own in your sole name. Additional or alternative estate planning mechanisms dictate how ‘non-estate assets’ will pass.
Estate assets include:
Non-estate assets include:
Your property can be left as a specific gift to a particular beneficiary or generally divided between one or more beneficiaries as part of the residue of your estate. You can give your estate to your beneficiaries absolutely or in a Trust. Please refer to our ‘Discretionary Testamentary Trust’ brochure for more details about gifting your estate via a Trust.
Regularly review your Will
A will is drawn to cover your current situation and in anticipation of certain events that may or may not happen in the future.
Changes in your life and the law can significantly change the interpretation or application of your Will. In some instances, your Will can even become ineffective or invalid.
We recommend that you review your Will every three to five years to ensure that it will still give effect to your wishes. If any of the following events have occurred in your life you should make a will or update your Will.
Conclusion
The important thing is to consider your circumstances at every major personal milestone in your life. Any Will you have that is more than five years old should be reviewed. At Chamberlains Law Firm we will review your current Will for free and if you do not need to update your will we will tell you!
Recently, the Victorian Supreme Court handed down their judgment in Pacific Dairies Limited v Orican Pty Ltd [2019] VSC 647 (Pacific Dairies). The case illustrates the unwillingness of Courts to interfere in cases where conduct of a company’s directors is poor or inadequate, but not actively oppressive to a shareholder.
Statutory Basis for Shareholder Oppression Claim
Shareholder oppression is enshrined in section 232 of the Corporations Act 2001 (Cth) (Corporations Act).
Examples of shareholder oppression in respect of a company that may be committed by a director include:
(a) withholding information from a shareholder without cause;
(b) exclusion of a shareholder from management of or involvement with the company; and
(c) diversion of a legitimate corporate opportunity for the company to themselves or another associate of theirs.
If the Court finds that oppression of shareholders has taken place, then they may exercise broad powers to rectify the issue under section 233 of the Corporations Act, including:
(a) winding up the company;
(b) modifying the company’s constitution;
(c) reducing or increasing the share capital of the company, or directing that a sale be made from one shareholder to another; or
(d) appointing a receiver or receiver and manager over the company’s assets.
In circumstances where the winding up of the company is sought, the factors in section 461 of the Corporations Act are applicable. In making its decision, the Court may consider:
(a) whether directors have acted in their own interests when managing the affairs of shareholders;
(b) if an act or proposed act would be oppressive or unfairly prejudicial to the interests of a shareholder or class of shareholders;
(c) whether the company is unable to pay its debts; and
(d) whether it would be just and equitable that the company be wound up.
Facts of the Case
Pacific Dairies Limited (Company) was in a weak financial position, making heavy net losses year upon year since 2015. Their plans to expand into the Oceania market and create a regional dairy group had failed, and in 2016 their shares were suspended from trading on the ASX. The Company was then delisted from the ASX on 20 May 2019 as a result of having a suspension for a continuous period of over three years.
Despite the above, the directors of the Company resolved to:
(a) continue to seek finance to reposition the Company in the market and proceed with the planned expansion;
(b) pay themselves directors’ fees of over $200,000 each, in circumstances where net losses of over $1.5 million over two consecutive financial years had accrued to the Company; and
(c) issue additional shares to themselves while not offering those shares to any other shareholders as ‘consideration for fees payable’, since the Company did not have the cash resources to pay the directors’ fees.
Mr William Clarke, the former CEO and shareholder of just over 1% of the equity in the Company, accordingly brought an application under section 232 of the Corporations Act seeking an order for:
(a) the removal of the current directors of the Company; and
(b) setting aside the issue of shares and options to the directors and their related entities.
Mr Clarke did not request that the Court wind up the Company on just and equitable grounds in accordance with section 461 of the Corporations Act.
Decision
Sifris J noted that:
(a) payments of fees to directors can be oppressive where the fees are paid improperly and are excessive without any bona fide basis for their calculation; and
(b) the issue of shares by a company can constitute oppressive conduct.
However, the Court held that the Company’s conduct did not constitute oppression under section 232 of the Corporations Act.
His Honour stated that the issue of shares to the directors of the Company was not oppressive, as those amounts were owing to the directors in consideration for their services.
He noted that the Company had received advice that the conversion of debt to equity was appropriate rather than continuing to accrue debts, and that that conversion had occurred at a fair rate in line with the Company’s share price.
His Honour also considered that an impending annual general meeting of the Company (which the directors had opposed) should be allowed to proceed before the Court will interfere and make the orders sought by Mr Clarke.
Conclusion
Pacific Dairies demonstrates the restrictiveness of the Corporations Act for shareholders to obtain recourse for alleged unsatisfactory director conduct. As shown in this case, Courts will defer to the mechanisms for shareholder democracy within a company’s constitution or the replaceable rules under the Corporations Act rather than make orders that circumvent those corporate governance methods.
It is possible that the outcome of Pacific Dairies may have been different if Mr Clarke had also applied separately for the company to be wound up on just and equitable grounds under section 461 of the Corporations Act, as the Company could also have been said to be trading insolvently and the Court would no doubt have had regard to this factor when making its decision.
If you have any legal questions related to commercial and corporate law, reach out to our specialists at Chamberlains Law Firm!
Douglas v Morgan [2019] SASFC 76
Legal professional privilege may be exercised by clients in a lawyer-client relationship, to protect communications of a confidential nature, which were brought into existence for the dominant purpose of obtaining legal advice, or in anticipation of litigation (“dominant purpose test“).
In a recent decision of the Full Court of the Supreme Court of South Australia (“the Full Court“), legal professional privilege was not ascribed to an investigation report prepared for an insurer as it was held to have not met the requirements of the dominant purpose test. The Court found that the dominant purpose of obtaining the report was not for obtaining legal advice or in anticipation of litigation. Instead, the dominant purpose of the report was said to be within the ordinary course of business, for the determination of liability.
On 9 December 2012, whilst crossing the road, the Respondent was struck by a motor vehicle driven by the Appellant. On 20 December 2012, the Respondent’s solicitor contacted the Appellant’s Compulsory Third Party Insurer (CTP Insurer) providing details of the collision and seeking payment of medical expenses incurred as a result of injuries sustained from the collision.
On 27 December 2012, the CTP Insurer’s claims consultant requested that an independent investigation be undertaken to determine the circumstances of the collision by obtaining detailed accounts of the accident from the parties and any witnesses. When making the request, the consultant included in the reasons for the request; “…in order to confirm the accident circumstances and ascertain the insured and claimant’s awareness prior to the accident”.
On 12 June 2013, the CTP Insurer informed the Respondent’s solicitor that it denied liability for the Respondent’s injuries because the Respondent crossed the road into the path of the Appellant’s oncoming vehicle.
In November 2015, the Respondent commenced proceedings against the Appellant for personal injury damages caused by negligent driving in the District Court of South Australia.
In September 2016, the CTP Insurer sought legal professional privilege over the report when completing its discovery, and the Respondent sought access to the report.
On the first instance, the District Court of South Australia upheld the Appellant’s claim for privilege on the basis that the dominant purpose of obtaining the report was for obtaining legal advice for reasonably anticipated litigation.
This decision was overturned on appeal by Bochner J, who found that the CTP Insurer’s dominant purpose for requesting the report was to obtain an account of the accident from the parties and witnesses, and to consider the Respondent’s claim.
The decision of Bochner J was upheld on appeal to the Full Court of the Supreme Court of South Australia, which found that legal professional privilege did not apply to the report because the dominant purpose of requesting it was to determine liability to the Respondent. This was so despite the secondary purpose being found to have been for the report to be provided to the solicitor of the CTP insurer in anticipating litigation.
The Full Court made this determination based on the following factors:
There is ongoing tension between legal professional privilege and the interests of justice of obtaining the fullest possible access to the facts which are relevant to the issues in any case. As stated in the High Court decision of Esso Australia Resources Limited v The Commissioner of Taxation [1999] HCA 67 at [35], “Where the privilege applies, it inhibits or prevents access to potentially relevant information…For the law, in the interests of the administration of justice, to deny access to relevant information, involves a balancing of competing considerations”.
When privilege applies, its purpose is to protect the interest of clients in circumstances where they are seeking legal advice or when they are anticipating litigation. Insurers must exercise extra caution when briefing investigators to provide a report to assist in resolving liability disputes. Investigators reports may contain confidential information which could be crucial to the strength or lack thereof of their case if the matter was to proceed to a hearing. Prior to briefing an investigator, insurers ought to therefore consider, determine, and effectively communicate what the dominant purpose of obtaining the report is, in order to avoid waiving their right to legal professional privilege.
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The new whistleblower reforms were introduced into law from the beginning of the 2019 financial year with the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth) (Amendment Act).
The Amendment Act aims to further encourage employees and officers of publicly trading corporations to report any compliance issues with the company to external agencies such as ASIC, the ATO or SafeWork. The Amendment Act alters sections of the Corporations Act 2001 (Cth) (Corporations Act) and the Taxation Administration Act 1953 (Cth) that provide prospective whistleblowers with greater protections from victimisation and prosecution.
As a key part of the changes, from 1 January 2020, certain public corporations will need to have in place a whistleblower policy that adequately describes the processes that the organisation will follow to comply with the Amendment Act. This requirement is implemented through the new section 1317AI of the Corporations Act.
Which companies does this apply to?
Section 1317AI applies to public companies, large proprietary companies and proprietary companies that are trustees of registerable superannuation entities.
Under section 45A(3) of the Corporations Act, a large proprietary company is a private company which satisfies two of the three following elements:
(a) $50 million in gross consolidated revenue;
(b) $25 million or more in consolidated gross assets;
(c) over 100 employees.
Note that there are no carve outs for public companies that are also registered charitable organisations with the Australian Charities and Not-for-Profits Commission – the whistleblower policy requirements are required for not-for-profits.
What are the requirements of a whistleblower policy?
Under section 1317AI(5), a compliant whistleblower policy must contain information about:
(a) the protections available to whistleblowers within the organisation;
(b) how and to whom an individual that might be a whistleblower can make a disclosure;
(c) how the organisation will support and protect whistleblowers;
(d) how investigations into a disclosure will proceed;
(e) how the company will ensure fair treatment of employees who are mentioned in whistleblower disclosures;
(f) how the policy is to be made available to officers and employees; and
(g) any other matters that are prescribed by the executive arm of government by regulations under the Corporations Act.
Because of the above, a whistleblower policy needs to be comprehensive and well thought out, and we recommend legal advice be obtained in their drafting so that each process and measure can be ticked off for compliance.
What if a company required to have a policy does not have one?
Failure to comply with section 1317AI is a strict liability offence under section 1311(1) and carries a civil penalty of 60 penalty units (currently $12,600) which will be enforced by the corporate regulator, ASIC. This makes it crucial for such a policy to be in place prior to 1 January 2020.
Conclusion
Given the complex requirements of the whistleblower regime, we highly recommend that all relevant companies seek legal advice and implement an appropriate whistleblower policy as soon as possible. This will not only avoid any fines or penalties but will also be an appropriate measure for good corporate governance.
If you have any legal questions related to commercial and corporate law, contact our team of lawyers at Chamberlains Law Firm!
Royce v Youi Pty Ltd [2019] QCA 193
Insurance companies are in constant dispute with their customers in relation to the progress and finalisation of their claims. From when an insurance claim is first lodged and throughout the progress of the claim there are several steps which help determine whether the insurer has satisfied their contractual obligations owed to their insured customers, and also whether customers accept the insurers findings and determinations whilst progressing these claims. This case assists in providing clarity in respect of when the contractual obligations of an insurer have been discharged and when an insurance policy is well and truly at its end.
Facts:
This Queensland Court of Appeal decision relates to a motor vehicle that was stalled in floodwaters which had inundated Connection Road in the Tallebudgera Valley on the Gold Coast on 28 January 2013. At the time of the incident, the applicant was the holder of a motor vehicle insurance policy with the respondent.
On 13 February 2013, after lodging an insurance claim, the applicant received a cash settlement on the policy to the agreed value of $33,000.00, less excess of $625.00. The applicant then repurchased the vehicle when it was auctioned for salvage on 28 February 2013.
Approximately 13 months later the applicant made a complaint to the respondent about the total loss assessment in respect of his vehicle. He requested the respondent have the vehicle taken off the register of written off vehicles so that he could obtain a roadworthy certificate. The respondent declined this request.
On 23 November 2016, the applicant filed a consumer claim with QCAT, seeking a declaration that the respondent’s assessment was inaccurate, that the respondent give notice correcting the written off vehicle register, and damages in the sum of $25,000.00 plus interest and costs.
On 12 January 2018, an adjudicator dismissed the applicant’s consumer claim finding that the applicant had made a claim on the insurance policy, had accepted the respondent’s financial settlement in satisfaction of that claim; and the respondent had therefore discharged its contractual obligations and the policy was at an end.
The adjudicator rejected the applicant’s claim for damages on the basis that the applicant had accepted a payment in accordance with the policy and was not entitled to be compensated for the restoration of the vehicle he had purchased as a write off.
On 6 February 2018, the applicant sought leave to appeal the adjudicator’s decision. On 19 September 2019 the appeal was dismissed as it was found that there was no error of law as to the contract terms or the respondent’s authority. The adjudicator’s determination that the applicant had made a claim on his policy of insurance and that the respondent had responded to that claim in accordance with its contractual obligations were findings of fact supported by evidence.
What Insurers and Customers Can Take Away from This Decision:
This decision highlights the contractual obligations of the insurer and the actions of the customer which discharge those obligations and put an end to the policy. The insurer has a duty to assess the damage and provide the customer with a determination. Once the determination is accepted by the insured customer, it cannot be returned to months or years later because of a change of mind. As with any contractual obligation, once the customer accepts the determination, the insurer’s contractual obligations are said to be discharged, and the customer does not have any further rights to exercise under the policy.
On 21 November 2019, over two years after its commencement, the Federal Court of Australia handed down its monstrous 1500-page, 520,000-word decision in the medical product liability class action known as Gill v Ethicon Sàrl & Ors (No 5) [2019] FCA 1905. As is Federal Court practice in important, complex or public interest cases, the Court has provided a much easier to digest summary of their decision, which can be found here.
The Proceedings
This is a class action proceeding brought by three women, Kathryn Gill, Diane Dawson and Ann Sanders on behalf of over 1350 Australia women against Johnson & Johnson and two related companies. The case focuses on nine medical mesh devices made of the synthetic plastic polypropylene, which were designed for surgical implantation to treat stress urinary incontinence and pelvic organ prolapse (Mesh Devices).
Many of the women who were treated with these Mesh Devices started experiencing severe post-surgery complications, including chronic inflammation, chronic pain, infection, incontinence, hemorrhaging, leg weakness, psychological injuries and damage to surrounding tissues. It was determined that these complications were the result of the mesh eroding and imbedding itself in the surrounding tissue.
The applicants alleged the following:
Some of the statistics about this matter are truly staggering to hear:
The Decision
Her Honour, Justice Katzmann, made a number of statements in her summary as to her findings on the evidence:
Product Suitability
Product Information
Product Marketing
Conclusion
This is a landmark decision for product liability class actions in Australia. It is Australia’s largest women’s health class action and the decision will mean compensation for hundreds of women suffering due to the effects of the mesh implants. Johnson & Johnson are facing thousands of similar legal actions internationally, and the Australian decision could set the pace for other jurisdictions to follow.
Due to the length of the judgment, Her Honour decided to rule on damages in February next year, allowing time for the parties to read the judgment and make submissions regarding damage calculations, and allow for more women to join the class.
If you have any questions regarding medical product liability, please contact Mr Jon May of our Injury & Compensation Team on (02) 6188 3600.
Do you often see the terms ‘Pty’ and ‘Ltd’ at the end of a business name? Do you sometimes wonder what they might actually mean?
A vast majority of people might know that respectively, the abbreviations connote ‘proprietary’ and ‘limited,’ but all too often this is the extent of our knowledge.
Most company names end with ‘Pty Ltd’ or ‘Ltd’ and for most customers of a business, these letters are meaningless, but they indicate the liability of the company and it becomes particularly important in situations of insolvency. If you’re an aspiring business owner, then these letters carry far more weight than in any other circumstance. When you register a company, you must include one of the three possible liability schemes (No Liability is the rare third option). The misuse of them is strictly regulated by ASIC and constitutes a breach of the Corporations Act 2001 (Cth).
Like many other facets of business, this notion is derived under the Legal Entity principle – the principle that stipulates that a company is its own legal entity and treated as separate to its directors. This principle generally protects directors from being personally liable for the losses or failures of their company.
A sole trader operating a business rather than a company will be liable for the losses and obligations of the business. This is because businesses are not recognized as separate legal entities. A company on the other hand is a separate legal entity.
Proprietary
The ‘proprietary’ in ‘proprietary limited’ prefers to the company being private – meaning that a limited number of shareholders own the shares of a specific company. Private companies may only have up to 50 shareholders and are only required to have one director. A private company cannot be listed on the Australian Stock Exchange and is precluded from offering its share to the general public, which makes raising capital much more difficult for them.
Limited
The ‘limited’ in ‘proprietary limited’ refers to limited liability – the fact that a shareholder’s legal responsibility for a company’s debts or liabilities is limited to the number of shares owned. Plainly, if a company becomes insolvent, the shareholders will only be liable to lose the money they used to purchase their shares. In some cases where a shareholder has partly paid for shares, they are required to pay the remaining money they owe for those shares.
An alternative to a company limited by shares is a company limited by guarantee. In these companies, members agree to a certain amount of legal responsibility upon becoming members. In other words, they agree to guarantee a certain amount of liability to the company.
Proprietary Limited Companies
A Pty Ltd company is relatively easy to set up and not difficult to maintain. A Pty Ltd company cannot raise capital by offering shares to the general public and their director(s) are commonly well protected from any liability to the company’s debts. For these reasons, Pty Ltd companies are the most common type in Australia and generally suited for small to medium sized companies.
Limited Companies
Unlike their Pty Ltd counterparts, Ltd companies are public companies, meaning they can sell shares to the general public as a means of capital raising and they may be listed on the Australian Stock Exchange. A Ltd company may have an unlimited number of shareholders but must have a minimum of three directors. Public companies are met with far stricter regulations, including significant accounting and reporting obligations which are designed to protect the public. Like their Pty Ltd counterparts, the directors of a Ltd company are protected by the limited liability shame.
Why does it matter?
Knowing the legal jargon and meaning behind ‘Pty’ and ‘Ltd’ is not a shallow piece of knowledge to unleash at your next meet and greet or networking event – it is critical to a basic understanding of rights, obligations and avenues for legal action in circumstances of corporate insolvency. More importantly, knowing the basic meanings and affects of company structures better equips any person that either; wants to start their own company or engages in frequent business dealings with companies.
If you are an aspiring entrepreneur or a current business owner, you might be very aware of the commercial and legal landscape but there will never be a substitute for the highest quality specialised legal advice.
If you have any legal questions related to commercial and corporate law, contact our team of lawyers at Chamberlains Law Firm!
This article continues our series on motor accident compensation in Western Australia. You can read about the history of the WA scheme in Part 1 found here.
Western Australia’s system is administered by the Insurance Commission of Western Australia (ICWA) and operates under:
The 1943 Act establishes fault-based compensation. The 2016 Act added a no-fault catastrophic care scheme, creating a modern dual pathway.
Injured persons lodge a Notice of Intention to Make a Claim with ICWA. This provides:
The catastrophic injury scheme provides immediate lifetime care and support for eligible injuries.
WA’s system encourages:
If unresolved, claims proceed through the District Court or Supreme Court. Minors and incapable persons require court approval to finalise settlements.
WA does not have a statutory equivalent to NSW’s CARS but uses:
Disputes often relate to liability, treatment, catastrophic injury eligibility, and quantum.
Assessments are conducted by medical specialists or catastrophic injury assessors who evaluate:
These assessments determine access to both statutory catastrophic benefits and common law damages.
Under the fault-based system, injured people may claim:
Those with catastrophic injuries have access to lifetime, no-fault care in addition to potential common law damages if someone else was at fault.
Eligible claimants may recover:
Awards are reduced for contributory negligence.
Read more in Part 3 of this series, “Procedural Requirements Under the WA Acts.”
If you are looking for a team of lawyers that can help with Advocacy, Equity, and Statutory Compensation, contact us.
This article continues our series on motor accident compensation in the ACT. You can read about the history of the scheme in Part 1 found here.
The ACT’s modern compensation framework is governed by the Motor Accident Injuries Act 2019 (ACT) (MAIA). The Act introduced statutory defined benefits while retaining access to common law damages for more serious injuries.
The reforms aimed to promote early treatment, reduce legal and administrative costs, and improve long-term sustainability.
Many claims under the previous common law scheme remain active, but the 2019 Act has significantly reshaped entitlements and dispute resolution in the ACT.
Under the MAIA, injured persons must lodge an Application for Personal Injury Benefits. This provides access to:
Statutory benefits apply to most injured road users regardless of fault, subject to injury thresholds.
The MAIA promotes early resolution by requiring:
Access to common law damages requires meeting a defined threshold of permanent impairment.
Disputes are primarily resolved through ACT Civil and Administrative Tribunal (ACAT) processes, including:
Disputes relate to:
Minors and incapable persons require court approval to finalise settlements.
Medical disputes are determined by MAIA-appointed medical assessors, who assess:
This system replaces many of the contested medico-legal issues from the prior fault-based scheme.
Only those who suffer a defined injury (usually exceeding a WPI threshold) can pursue common law damages.
Common law benefits may include:
Others retain access to statutory benefits only.
The MAIA provides:
Damages are reduced for contributory negligence.
Read more in Part 3 of this series, “Procedural Requirements Under the MAIA.”
For assistance with Advocacy, Equity, or Statutory Compensation, contact us.
This article continues our series on motor accident compensation in Queensland. You can read about the history of Queensland’s compensation scheme in Part 1 found here.
Queensland’s current compulsory third-party (CTP) system is governed by the Motor Accident Insurance Act 1994 (Qld) (MAI Act). The Act was designed to promote insurer competition, ensure early and appropriate treatment and rehabilitation, and encourage early resolution of claims.
The MAI Act also aims to provide more appropriate long-term support for people with ongoing disability. Many claims under the Act remain active today due to the scheme’s long-tail nature. Queensland’s hybrid statutory–common law system is one of the more traditional models still operating in Australia.
Similar reforms have taken place around Australia, although Queensland has retained a fault-based common law entitlement structure regulated by the Motor Accident Insurance Commission (MAIC).
The MAI Act requires early notice through a Notice of Accident Claim Form (NOAC). This allows:
Insurers must fund “reasonable and appropriate” treatment once liability is accepted or even on a without-prejudice basis in many cases. Reforms have strengthened obligations on insurers to actively facilitate rehabilitation and return-to-work initiatives.
To encourage early resolution, claimants must comply with strict notification requirements:
Insurers must respond within defined timeframes by admitting or denying liability and making settlement offers when appropriate.
Pre-court procedures require:
These steps aim to reduce adversarial conflict and resolve disputes without litigation.
Although Queensland does not have an equivalent of NSW’s CARS, the MAI Act incorporates a structured pre-litigation dispute framework overseen by MAIC.
Common areas of dispute include:
The scheme encourages informal settlement conferences, mediations, and early rehabilitation decisions. Claims involving minors or incapable persons require court approval.
Queensland relies on independent medical examiners and specialists approved under MAIC guidelines. Independent assessments help resolve disputes relating to:
Serious injuries may fall under the National Injury Insurance Scheme, Queensland (NIISQ), which provides long-term care and support.
Queensland maintains access to broad common law damages, including:
The Injury Scale Values (ISV) system standardises non-economic loss while leaving other entitlements unaffected.
Eligible injured persons may claim:
Awards are reduced for contributory negligence. Queensland’s common law framework remains one of the most generous in Australia.
Read more in Part 3 of this series, “Procedural Requirements Under the MAI Act.”
If you are seeking help with Advocacy, Equity, or Statutory Compensation, contact us.