The Australian and New Zealand Meritas firms are proud to present this Guide: An Introduction to Wills & Estates in Australia & New Zealand.
If you require guidance or legal representation in respect of preparing or executing a will, or managing a dispute about an estate, in Australia or New Zealand then these law firms are available to assist in single or multiple jurisdictions. Each Meritas member firm in the ANZ region is listed below and the contacts for each office are provided at the end of this guide.
For New Zealand Wills & Estates:

Martelli McKegg – Auckland

For Australia Wills & Estates:

Bennett & Philp – Brisbane, Queensland
DMAW Lawyers – Adelaide, South Australia
Madgwicks – Melbourne, Victoria
Swaab – Sydney, New South Wales
Williams + Hughes – Western Australia

About Meritas
Meritas’ global alliance of independent, market-leading law firms provides legal services to companies looking to effectively capture
opportunities and solve issues anywhere in the world. Companies benefit from local knowledge, collective strength and new efficiencies when they work with Meritas law firms. The personal attention and care they experience is part of Meritas’ industry-first commitment to the utmost in quality of service and putting client priorities above all else.
Founded in 1990, Meritas has member firms in 258 markets worldwide with more than 7,500 dedicated, collaborative lawyers. To locate a Meritas resource for a specific need or in a certain market, visit  http://www.meritas.org or call +1 612-339-8680.
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post An Introduction to Wills & Estates in Australia & New Zealand appeared first on Bennett and Philp Lawyers.

A recent public ruling from the Office of State Revenue (Public Ruling DA000.16.1 Administrative Arrangement – Duty Exemptions for Eligible Small Business Reconstructions) provides  a significant business restructure rollover opportunity for businesses in Queensland wishing to move into a company structure.
In a nutshell, the Public Ruling provides for an exemption for transfer duty that would ordinarily be payable on a transfer of small business property to a company by a small business entity. Such small business entities include discretionary trusts, partnerships and sole traders into companies. For reasons unknown, it does not include unit trusts.
Note that the transfer duty exemption only works one way – transferring business assets into a company and not out of one into another structure (or another company).
This will be of particular interest to clients in structures that they may have outgrown or which may no longer be suitable for them. For example, where taxation or investment issues arise as a result of a business being held within a discretionary trust structure.
Many such businesses may previously have explored the possibility of a restructure into an incorporated entity with their advisors but may have been put off by the capital gain tax (CGT) or transfer duty consequences of doing so.
Determining Eligibility
A transfer is eligible if it meets certain criteria relating to the property, transferor and transferee:

Property – the property to be transferred must be “small business property”, which is defined as property:

that is actively used by a small business entity to carry on that entity’s business;
the dutiable value of which must not exceed $10 million.

Transferor – the transferor must be a ‘small business entity’, which is defined as an entity that:

holds small business property (as defined above);
carries on a business that is conducted from a place in Queensland or the conduct of which consists of the supply of land money credit or goods to Queensland customers; and
has an annual turnover of not more than $5 million.

Transferee – The transferee must be an unlisted “cleanskin” company and never have owned any assets, had any liabilities, been a party to any agreement or issued or sold any shares or rights relating to shares. Newly incorporated or dormant shelf companies are suitable for this purpose.

In order to receive the benefit of the exemption, there needs to be shared underlying ownership of the small business entity and the transferee company. The following examples illustrate how such interests are to be determined:

two equal partners (ie, holding a 50% interest in the partnership) would need to each hold 50% of the shares in the company to benefit wholly from the exemption;
default beneficiaries in a discretionary trust are deemed to hold interests in that trust in equal shares. If there were, for example, three default beneficiaries, each would need to hold 33.3% of the shares in the transferee company.

Where the underlying interests are different then duty will be payable to the extent of the difference (for example, if the shareholdings in the first example were 45% and 55% then duty would be payable only on the interest that has increased, being 5%.
There are a number of examples in the Public Ruling that illustrate its operation, which can be found here.
Interaction with Small Business Restructure Rollover
The exemption is likely to permit better access to restructure opportunities, in particular, the small business restructure rollover, which provides an exemption to incurring CGT on transactions conducted for corporate reconstruction purposes and in relation to which there is a significant overlap in the criteria for the duty exemption.
In many cases, such reconstructions may now be able to be undertaken by eligible Queensland small businesses at no tax or duty costs.
The eligibility requirements for the small business restructure rollover are as follows:

Aggregated turnover of the transferor is less than $10 million;
Each party is either a small business entity or affiliated, connected or in partnership with a small business entity;
The assets being transferred are active assets; and
There is no change to the ultimate economic ownership. For the purposes of discretionary trusts, this is determined by which individuals, in a practical sense, economically benefit from the assets of the trust before and after the transfer.

Even where an applicable CGT exemption is not available, there may still be opportunities where business turnover has been significantly impacted to restructure at a significantly reduced tax and duty cost than may have been the case in previous years.
If you would like to discuss this article and how it may impact you and your business, please contact Chris Lillie.
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post New Ruling Provides Business Restructure Rollover Opportunity appeared first on Bennett and Philp Lawyers.

The third publication in our Practice Guide for Second Mortgages addressing Deeds of Priority is now available to download.
Our experience is that often lenders do not know when deeds of priority are required. Most lenders assume that a deed of priority will be required by a first mortgagee or that they should require one if acting as first mortgagee, but as we have seen in our last publication, there are a number of jurisdictions in which a first mortgagee cannot force a second mortgagee to enter into a deed of priority.
Secondly, we find that a number of lenders, and sometimes legal practitioners, do not appreciate what a deed of priority can do, and this often results in a document that does nothing more than re-state the position at law.
In both these situations, the borrower is often paying the cost of a step which is unnecessary or worthless. In order to maximise their value proposition for customers and correctly price their loans, lenders should understand when a deed of priority should be used and how it should be used to provide value to their security and maximise the exercise of two mortgagees engaging with one another.
This is the third of our publications in the Practice Guide for Second Mortgages series. In this series, we are answering some frequently asked questions regarding second mortgages. This publication and our overall guide are designed to give lenders a more in-depth knowledge of second mortgages and some tips and traps to watch out for.
Some of the comments in this publication also apply to a first mortgage and of course, apply to third and other subsequent securities for lenders with that risk appetite.
This publication, prepared by Banking and Finance Director, Nadia Sabaini, covers basic information relating to when a Deed of Priority is required and what it should cover, in order to be a purposeful addition to a second mortgage transaction.
To download your copy, click on the link below and scroll to the bottom of the page.
 

* The information contained in this guide is general in nature and does not take into account your personal situation. You should consider whether the information is appropriate to your needs, and where appropriate, seek professional advice from a financial adviser.
The post Practice Guide for Second Mortgages – Addressing Deeds of Priority appeared first on Bennett and Philp Lawyers.

The recent High Court decision of Calidad Pty Ltd & Ors v Seiko Epson Corporation & Anor [2020] HCA 41 (“Calidad”) has changed the balance of rights between patent rights holders selling OEM products, end user purchasers of those products, and after market service companies offering repair and refurbishment services to extend the life of those OEM products.
However, despite several commentators suggesting otherwise, the decision in Calidad is unlikely to be the final word and some ambiguity still remains concerning the boundary between a “permissible repair” and infringement from making a new product from “reconstruction” of parts.
The Calidad decision is important for at least two reasons. Firstly, it has overturned the previous position under Australian patent law of the “implied licence” doctrine and potentially provided greater certainty for defining a patentee’s rights after the first sale of a patented product through the adoption of the “patent exhaustion” doctrine. The “implied licence” doctrine was imported into Australian law from UK law in the early 1900’s and allows the purchaser of a patented product to use or dispose of the product without the need for the patentee’s consent but allows the patentee to restrict and impose conditions via licence on subsequent use. Conversely, the exhaustion doctrine does not accept that a patentee’s rights of use with respect to the particular product survive its sale. Secondly, it is one of the first decisions to consider the newly introduced “object” clause in the Australian Patents Act 1990 (Cth), which was introduced as an aid to interpretation of the Patents Act.
The adoption of the “patent exhaustion” doctrine will likely open up many new opportunities for operators in several service sectors, particularly in the remanufacturing, medical, automotive and construction and mining equipment industries. However, the precise nature of the rights that purchasers of patented OEM products have still remains unclear when a modification is made to the product after it has been purchased and that modification is anything more than a repair or refurbishment designed to extend the product lifetime. Defining the extent of this “grey” area will undoubtedly be the basis of future litigation in this area. This article explores the potential effect of the Calidad decision on various industries and provides guidance to Australian businesses in those industries as to how they might navigate and benefit from these new business opportunities.
The old position – the doctrine of ‘implied licence’
For the century preceding the Calidad decision the position under Australian Law in relation to patented products was that after a patented product was sold, the purchaser had an implied licence to use the patented product for specific purposes. If the purchaser did anything beyond the scope of that implied licence, they risked infringing the patent. This was referred to as the “implied licence” doctrine.
There were three main issues with the doctrine of “implied licence”. First, it was difficult to identify the precise terms of the licence, which varied in the circumstances. Second, Courts found it difficult to reconcile the existence of an implied licence with the “rights of an owner of a chattel to the full use and control of it.” This was in large part due to the boundaries of any “implied licence” being unclear. Businesses need to have certainty in regard to what they can and cannot do. This is particularly the case when their actions of repairing a product or modifying it could expose them to very costly patent infringement suits. As a consequence, some businesses simply avoided the issue by not availing certain opportunities in relation to repair and maintenance services.
Finally, the “implied licence” doctrine is based on a fictional licence. Chief Justice Kiefel, and Justices Bell and Keane described the doctrine as ‘likely to cause confusion in part because it combines a fictional licence with the possibility of real restrictions’.
The new position – the doctrine of ‘exhaustion’ of patent rights
The High Court has now stated – by a 4-3 majority – that the position in Australia in relation to patented products is that once a patent product is purchased, the patentee’s rights in respect of that particular product are extinguished. This is referred to as the “patent exhaustion” doctrine. The patent exhaustion doctrine does not stop a patentee imposing conditions on a purchaser’s use of a patented product, but it does require any such restriction to be by way of a contract (rather than  an implied licence). However, caution should be exercised in such an approach as this in turn may create competitive tensions leading to misuse of market power in certain circumstances.
Despite this, the patent exhaustion doctrine is not a carte blanche authorisation for purchasers of patented products to do whatever they like. Notably, it does not allow service companies to make such changes to the patented product (after the first sale) that would result in the making of a new product that infringes the patent. However, the boundaries of ‘repair’ and ‘making’ – i.e what is and what is not permissible – are difficult to define and are circumstances dependent, and what may constitute ‘repair’ in one instance may amount to ‘making’ in another.
Two useful statements of principle from the High Court (citing decisions from the UK and the USA) are:

“where what has been done does not involve the replication of the combination of integers that describe the invention, it cannot be said that what has been done is the making of it”; and
“the replacement of individual unpatented parts may involve a right to repair where what is done bears on the usefulness of the old combination of the product”.

The High Court has also provided some additional guidance on when a ‘repair’ might turn into ‘making’. The Court has indicated that the boundary is crossed when the particular product ‘ceases to exist’. Whether a patented product ‘ceases to exist’ for the purpose of identifying whether purchaser’s actions constitute ‘repair’ or ‘making’ will be a highly factual inquiry. The cases followed by the High Court indicate that where there is ‘replacement of unpatented parts that were worn or spent in order to preserve the utility of the article’ will be treated as ‘repair’. ‘Making’ or ‘reconstruction’ (which is the American term) requires much more “extensive rebuilding”. As such conduct may exist on a spectrum there can be no hard and fast rules as to what is permissible and impermissible.
However, it is helpful to remember that the crux of the patent exhaustion doctrine is that the repair, modification or refurbishment of the patented product has to be such that it is not a ‘reconstruction so as to in fact make a new article.’ The new article, necessarily has to possess all the integers of the claimed invention in order to infringe the patent.
The objects clause in the Patent Act
The object of the Patent Act is stated in section 2A is to:
…provide a patent system in Australia that promotes economic wellbeing through technological innovation and the transfer and dissemination of technology. In doing so, the patent system balances over time the interests of producers, owners and user of technology and the public.
Businesses rely on certainty in trade and commerce, and the High Court acknowledged the difficulty posed by the “implied licence” doctrine in that regard. The patent exhaustion doctrine has the benefit of being able (at least to a greater extent) to balance the rights of patentees against those of users of patented technology and the general public.
Since the Calidad decision and the willingness of the High Court to consider the object clause in statutory interpretation, one might expect similar consideration in future patent decisions in areas where the law is less well developed.
What’s the likely impact the Calidad deicsion will have on industry?
The aftermarket and remanufacturing industries will feel the greatest impact from the adoption of the patent exhaustion doctrine in Australia. Businesses who repair products overseas will also likely benefit from increased opportunities and more assurance that they may be less exposed to patent infringement suits.
Broadly speaking, the activities that appear to be permissible under the patent  exhaustion doctrine fall under two heads:

prolonging the life of a patented product by replacing an individual unpatented part; and
modifying or refurbishing a single-use article to enable it to be re-used (provided that single-use is not a feature of the invention claimed).

The Australian industries most likely to benefit and respond as a result of the Calidad decision include:

the construction equipment maintenance and repair industry, where maintenance and repair can extend the life of machines;
the medical devices industry where single-use devices can be remanufactured for multiple uses cost effectively and safely;
the automotive industry, where the increased presence of electric and hybrid vehicles creates opportunities for remanufacturing and repair; and
printer consumables, where there have already been several instances of single-use printer cartridges being modified to refillable cartridges.

It is important to note that any extent of repair or modification that may be permissible under the patent law only applies to the particular article in question. The sale does not exhaust the patentee’s right to prevent others from making products embodying the patented invention, and this is consistent with the boundaries of the patent exhaustion doctrine ending at the ‘making’ of a new product that embodies the invention.
Despite the new opportunities that the application of the patent exhaustion doctrine will likely provide various industries, there are still risks that businesses need to be aware of. Just because a business categorises its activities as “repair” does not necessarily make it so. It is ultimately a decision for the Courts as to whether particular conduct constitutes “repair” or whether it is a reconstruction amounting to the “making of a new product” that may infringe the claimed invention.
It is important that if businesses are seeking to take advantage of the new opportunities that arise as a result of the Calidad decision in terms of remanufacturing, maintenance and repair services, they seek legal advice about their particular circumstances. The intellectual property team at Bennett & Philp are able to assist.
If you’d like to learn more about this article, please contact Michael Finney or Shireen Parvez.
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post Can I refurbish my OEM product with after-market repairs? appeared first on Bennett and Philp Lawyers.

Our construction litigation team including Tony Mylne and Andrew Lambros has successfully resisted two payment claims from a contractor seeking unjustifiable claims for delay, payment for contract works and variations. The claimant was directed to pay the full costs of adjudication. The following is a note regarding the latest of these matters.
The Facts
The contractor sought $5 million as part of a claim for contract works and delay costs. The delay claim was said to have been supported by notices of delay which were claimed to have been served upon the superintendent.
The contract works detailed in the payment claim were said to have been completed in a general sense but only relied upon the same description of that work said to have been completed in the previous month, using a percentage complete to arrive at a figure claimed.
Our client respondent contested that three of the four notices of delay had been delivered or served on the superintendent undermining any claim for delay. Our client also suggested that the payment claim was invalid as it was not sufficiently detailed in terms of s 68(1) Building Industry Fairness (Security of Payment) Act “BIF” as the payment claim did not identify the construction work to which the progress claim related.
The claimants, on being asked for further submissions did not contest the facts surrounding the non-delivery of notices of delay.
Not having been served with notices the principal respondent argued he had no notice of the delay claims and was therefore even more dependent upon the form of the payment claim to inform him of the true nature of the claim.
It was clear that the payment schedule misconceived the true components of the payment claim as was clear on receipt of the adjudication application. The respondent was led into that error by the lack of detail within the payment claim. The Payment schedule itself only dealt with one of the extension of time claims which was the only extension of time claim that the respondent had notice (understandably).
The Decision
The parties had made long submissions about the various lines of authority on the sufficiency of payment claims and in the end the adjudicator was convinced that the comprehensibility of the payment claim was key, taking into account the surrounding facts that a respondent might know or be expected to know concerning the claims. Importantly, the adjudicator agreed with much of the matters outlined in KDV Sport Pty Ltd v Muggeridge Constructions Pty Ltd a decision of the Queensland Supreme Court where that court took account of the method of claiming a percentage of works completed. As the Adjudicator set out :-
“105. The Payment claim must at least be reasonably comprehensible and permit the respondent to respond within the timeframe permitted under the Act in that it must reasonably purport to identify the works done which is the subject of the payment claim.

I accept the respondent’s submissions in that the brief description of contract works in respect of what was carried out in the month the subject of the progress claim, where such description was given, did not provide sufficient detail as to what work was undertaken rather it was a broad range description and not broken down into any particulars at all.

The three redlines for the EOT’s on a one-page construction program consisting of 84 separate line item claims that formed part of the progress claim and the consequent delay costs, being a one-page schedule of daily rates which the claimant applied to the whole claimed time for EOT’s did not provide sufficiently detailed particulars of either the EOT’s or the amount claimed for the consequent delay costs flowing from those EOT’s.”

Critically, while various iterations of the payment claims had been dealt with by the superintendent (with some difficulty), the adjudicator was prepared to accept the argument that the payment claim was deficient and invalid on the basis that it was, to some extent, not comprehensible.
With respect to the extension of time claims, on the face of the material, it was clear that the respondent did misapprehend the basis of the payment claim and with good reason, since it had not previously received the extension of time notices relied upon. The first real detail of the claim was only received on receipt of the adjudication application. The program that accompanied the claim was too difficult to decipher and without notices of extensions of time were similarly not comprehensible.
The adjudicator further accepted that invalidity of the claim in these respects meant the balance of any claims were also affected with the adjudicator finding he had no jurisdiction in the circumstances. While such matters are remedied by s 101(4) of BIF should there be a review by a court of the adjudication decision, no such remedy (partial invalidity) is available before an adjudicator.
Takeaways

Faced with a quick turnaround between payment claim and payment schedule a respondent should not ignore jurisdictional arguments concerning validity of the payment claim itself.
 These issues should still be reviewed on receipt of an adjudication application as jurisdictional issues can still be raised despite them not being raised in any payment schedule.
While usually it is not difficult to comply with the requirements of the Act a description of the works completed since the last payment claim needs to be critically reviewed especially when reference dates may be at a premium towards the end of a contract.
Should contractual notices be relied upon, proof of delivery can very often be critical. While delivery is conservative and is no doubt time-consuming and inconvenient, it will bring about a certain result. Otherwise the provisions of the contract should be reviewed to take advantage of any mode of acceptable delivery and deemed delivery of notices.

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post Recent Successes in Adjudication appeared first on Bennett and Philp Lawyers.

The second publication in our Practice Guide for Second Mortgages covering the area of second mortgages versus caveat is now available to download.
This publication, prepared by Banking and Finance Director, Nadia Sabaini, covers basic information relating to the process for registering second mortgages.
We will discuss the registration requirements for second mortgages in each State and Territory and provide you with some important matters to consider such as:

When the consent of the first mortgagee is required;
When to use a caveat and what the risks are; and
What happens if you have an unregistered mortgage.

To download your copy, click on the link below and scroll to the bottom of the page.
* The information contained in this guide is general in nature and does not take into account your personal situation. You should consider whether the information is appropriate to your needs, and where appropriate, seek professional advice from a financial adviser.
You can book your free consultation session with Nadia directly via LawTap or contact her today on  +61 7 3001 2913.
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post Second Mortgages Versus Caveat appeared first on Bennett and Philp Lawyers.

It is not uncommon for individuals to suffer an injury in a public or private area, whether that be a park, shop, footpath, restaurant, residential home or recreational facility. But can a compensation claim always arise?
The answer to that question involves a careful analysis of the circumstances surrounding the accident, and whether someone (either an individual or a corporation) can actually be held responsible. That analysis was recently undertaken in the New South Wales District Court decision of Powell v JFIT Holdings Pty Ltd t/as New Dimensions Health and Fitness Centre [2020] NSWDC 264.  In that case, the Plaintiff was awarded damages in the sum of $551,097.62 for an injury she sustained during an afternoon gym training session.
Facts
Ms Powell, the Plaintiff, attended her local gym on the afternoon of 4 February 2016. Other gym members had attended the gym earlier that day and left the exercise floor area in a cluttered and messy state. In particular, heavyweight plates were left scattered all over the floor. Ms Powell needed to clear some floor space so that she could undertake her own exercises.  That included her moving a 25kg weight plate to its storage rack. In order to lift the weight plate, she had to perform a combination of a bend, twist and lift motion, which caused her to suffer a lower back injury (L4/5 lumbar disc prolapse).
She subsequently sued her gym for negligence.
Setting the Context – Applicable Legislation
By way of background, in order to establish negligence against an occupier (such as the Gym in Ms Powell’s case), three elements must be proven:

Duty of Care;
Breach of the Duty of Care; and
Injury suffered as a result of breach (causation).

In determining whether the Gym owed a duty and breached its duty to Ms Powell, the New South Wales District Court applied section 5B of the Civil Liability Act 2002 (NSW) (‘the NSW Act’), which is in almost identical terms to section 9 of the Civil Liability Act 2003 (Qld) (‘the Qld Act’). The provisions provide that a person (or in Ms Powell’s case her gym) will not be found to be negligent by failing to take precautions against a risk of harm unless:

The risk of harm was foreseeable;[1]
The risk was not insignificant (there was a significant risk);[2] and
A reasonable person in the same position would have taken the same precautions.[3]

In determining whether a person should have taken adequate precautions, courts consider (amongst other things):

The probability that the harm would occur if care was not taken;
The seriousness of the harm;
The difficulty of taking precautions to avoid the risk of harm; and
The social utility of the activity that creates the risk of harm.[4]

I have discussed how each of these elements were established and applied in the Powell case below.
Key Issues and Application of Law
Duty of Care
The gym’s duty of care (in the context of Ms Powell’s injury) was to ensure that the gym floor was clear of weights or other equipment and ensure that the weights were stacked on their designated racks [162].
This duty of care was primarily based on the premise that the gym required their staff to periodically clean-up the weights area if they found equipment and/or weights had been left on the floor. The gym recognised that a hazard would exist if this was not done [163].
There is always an expectation that individuals take care of their own safety. Here, Ms Powell exercised care for her own safety by acknowledging the need to clean up the floor prior to and in order to carry out her exercises safely [157 -158].
Breach of Duty
Was there a risk of harm?
The Defendant (gym) argued that the risk of harm was merely “the risk of suffering an injury whilst lifting up a weight and putting it away” [122].
The trial judge, His Honour Judge Levy held this risk to be too narrowly focussed, and instead took the view that the risk of harm extended to the risk of suffering an injury from lifting weights in the context of housekeeping activities, especially where the weights area was left in a hazardous condition and gym staff had not cleared the area [124].
Foreseeability of Risk of Harm
As part of the Terms of Membership, it was the responsibility of gym members to put equipment away after they used it [70]. That was also stated on signage within the gym. Judge Levy acknowledged that this was an attempt to extend the responsibility of gym tidiness onto gym users, instead of just the gym staff. Therefore, the risk of harm was foreseeable as the gym was well aware that if equipment was not cleaned up, it presented a risk of harm or injury [170].
Not Insignificant Risk
It was held that a range of injuries could occur if a person was attempting to move weights to clear a designated area to make it safer [176].
Probability
It was found that there was a high probability that a gym patron could injure themselves in the process of putting heavy weights away which had been left behind by other patrons in a communal exercise area, so that they could ensure their own safety [181].
Seriousness of Harm
It was accepted that generally, lifting heavy weights can cause back injuries ranging from minor to severe [182].
Precautions
His Honour held that it would have been simple for the gym to implement a number of easy precautions to prevent Ms Powell’s injury, such as getting staff to regularly inspect the gym floor to ensure it was tidy and safe, and if not, attend to clearing the equipment/weights and putting it back in its designated place [178].
Social Utility
Social utility was not a relevant consideration in this case. However, it was acknowledged that there is a positive benefit to society in providing safe recreational exercise facilities [184].
Injury Suffered/Causation
It was clearly established that Ms Powell suffered her back injury due to the Defendant permitting the weights to remain on the gym floor in a messy state [190, 196]
Contributory Negligence
The Defendant argued that Ms Powell should be held 50% liable for her injury, as a result of not taking steps to avoid hurting herself. This argument was rejected for a number of reasons, including:

there was no-one at the reception desk, so Ms Powell could not ask for assistance to pick up the weight;
Ms Powell could not seek the assistance of personal trainers as they were conducting classes; and
the Defendant could not prove that Ms Powell did not correctly move the weight which was clearly marked as weighing 25kgs.

In the circumstances, no contributory negligence was found against Ms Powell [204-210]
Decision
Ms Powell was awarded damages for her injuries in the sum of $551,097.62 comprising past out-of-pocket expenses, pain and suffering, future economic loss, future domestic assistance and future treatment expenses. She was not awarded damages for past economic loss as she was entitled to paid sick leave.
Concluding Remarks
Establishing occupier’s liability involves careful consideration of the factual circumstances which have given rise to an injury. It must be proven that the occupier of that premises had a duty of care to those who have entered or utilised the premises and that the occupier has taken or not taken some sort of action which has resulted in the injury.
An assessment of damages will consider the injured Plaintiff’s individual circumstances such as their age, work arrangements, day-to-day lifestyle, treatment and care requirements. It is important to remember that the assessment of each case is unique to each individual.
If you would like more information, contact the Compensation Law Team at Bennett & Philp Lawyers.
[1] Civil Liability Act 2003 (Qld) s 9(1)(a).
[2] Ibid s 9(1)(b);
[3] Ibid s 9(1)(c).
[4] Ibid s 9(2).
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post Occupier’s Liability – Injured on Someone Else’s Premises. What’s Next? appeared first on Bennett and Philp Lawyers.

On 17 January 2018, Mr Stevens was a passenger in a helicopter joy flight which departed from and was scheduled to return to a single helipad near Uluru (Ayres Rock).
During the joy flight, the helicopter rapidly lost height and crashed to the ground causing severe injuries to Mr Stevens, including paraplegia.
Both Mr Stevens and his employer (who had arranged Mr Stevens and others to take the flight on that day as a reward for their achievements during the course of their employment) brought claims in the New South Wales Supreme Court against the defendant as owner and operator of the helicopter which it used for joy flights pursuant to various licenses and certifications that it held.
Mr Stevens claimed damages at common law for his injuries caused by the defendant’s negligence and in the alternative a claim for damages under the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (‘the Commonwealth Act’).
Early this year, both Mr Stevens and his employer filed separate notices of motion in the court requesting that it determine whether the defendant’s liability arose under either the common law or the Commonwealth Act.
Given the severity of his injuries, the most advantageous outcome for Mr Stevens would be if his claim for damages were to be assessed at large under common law principles, as opposed to the damages restrictions outlined that section 31 of the Commonwealth Act.
In determining the notices of motion, Justice Wilson of the New South Wales Supreme Court considered the construction of section 27 of the Commonwealth Act which outlines the application of that act to the carriage of passengers.
Mr Stevens argued that the Commonwealth Act did not apply to his claim and referred to the act as applying to relevant carriage of passengers ‘between a place in a Territory and another place in that Territory’. He argued that the Commonwealth Act, therefore, could not include carriage which both departed from and arrived at the same place in that Territory, with no intervening stopping place, i.e. his joy flight was pursuant to a contract for carriage from one place to the same place and therefore the Commonwealth Act (and its associated damages restrictions) did not apply to his claim.
The employer-supported and adopted the position put forward by Mr Stevens.
Justice Wilson looked at the construction and purpose of the Commonwealth Act given the Northern Territory (where the accident occurred) had not passed its own similar legislation such as New South Wales (Civil Aviation (Carriers’ Liability) Act 1967) (‘the NSW Act’) and Victoria (Civil Aviation (Carriers’ Liability) Act 1961) (‘the Victorian Act’). Her Honour noted that the NSW Act provided for that act to apply to the carriage of passengers ‘from a place in the State back to that place’.
Her Honour also noted that although the Victorian Act stated the opposite, referring to the act applying to the carriage of a passenger ‘between a place in Victoria and another place in Victoria.’, the Victorian Court of Appeal in Mount Beauty Gliding Club Inc v Jacob 920040 10 VR 312; [2004] VSCA 151 had, by majority, previously determined that it was inconsistent with the purpose of the legislation for the Victorian Act to apply inconsistently to air travel, dependent upon the geographical location of the points of departure and return.
Justice Wilson found that although there were differences in the wordings of the Commonwealth Act, the NSW Act and the Victorian Act, adopting the literal meaning within those acts would produce unintended results and the weight of previous authorities favoured a construction that produced a meaning consistent with the whole of the particular statute and its purpose.
In her judgment[i], Justice Wilson provided hypothetical examples based upon the interpretations proposed by Mr Stevens and his employer, whereby two separate passengers, departing on two separate joy flights from the same place with the intention of one returning to the place of departure and the other landing elsewhere (even within the same state/territory) would, if suffering the same injuries on their flights, result in two different outcomes (one bound by the Commonwealth Act and the other not) which may lead to unfairness and injustice.
Looking to the Queensland position, the Civil Aviation (Carriers’ Liability) Act 1964 (Qld) (‘the Queensland Act’) contains a similar provision to the NSW Act, stating that it applies to the carriage of a passenger ‘between a place in Queensland and another place in Queensland’. Applying the reasoning of the Victorian Court of Appeal in Mount Beauty, as followed by Justice Wilson in Mr Stevens claim, would, in my view, likely result in the application of the Commonwealth Act and Queensland Act to the assessment of damages for injury suffered on a joy flights departing from and intending to return to the same place in Queensland.
You can view the decision here:
https://www.caselaw.nsw.gov.au/decision/1753e29e7b631a3218941185
Please contact Trent Johnson if you would like to learn more.
[i] Stevens v Professional Helicopter Services Pty Ltd; Stryker Australia Pty Ltd v Professional Services Pty Ltd [2020] NSWSC 1443
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
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On 17 June 2020, we reported on Queensland’s first industrial manslaughter conviction under the Work Health and Safety Act 2011 (WHS Act). In this article, we look at the recent Ardent Leisure prosecution. 
In the Queen v Brisbane Auto Recycling Pty Ltd and Hussaini and Karim, the District Court fined the company $3 million and its directors, Hussaini and Karim, each received a custodial sentence of 10 months (suspended for an operational period of 20 months) for the workplace death of one its workers.
Recently Ardent Leisure Group Limited (Ardent) was prosecuted under the WHS Act following the deaths of four patrons at its theme park, Dreamworld.
Ardent was prosecuted under Section 32 WHS Act (category 2) which provides for civil penalties only while Brisbane Auto Recycling and its directors were prosecuted under Section 31 WHS Act (category 1) which deems an offence is a crime.
It is recorded that Ardent Leisure was fined $3.6 million.
The WHS Act exposes not only bodies corporate but their officers to prosecution for breaches of such Act.
The premise of this article is that the effects of the prosecutorial regime under the WHS Act are likely to become even harsher.
Queensland is a party to Safe Work Australia (SWA), an Australian government initiative to harmonise Workplace Health and Safety legislation in the Australian States and Territories. SWA was instrumental in formulating a model Work Health and Safety Act (Model Act) which the Australian government enacted in 2011. All Australian States and Territories save Victoria and Western Australia have adopted the Model Act. Western Australia is “currently consulting on options to implement elements of the model laws”. “In the jurisdictions where the model laws have been implemented, each state and territory is expected to make variations to ensure the laws operate effectively in their jurisdictions. In some instances, states and territories have also made more substantial variations.”[1]
The SWA national review of the model Work Health and Safety laws (Report)[2] recommended that the Model Act be amended to make it an offence to:

enter into a contract of insurance or another arrangement under which the person or another person is covered for liability for a monetary penalty under the Model Act;
provide insurance for a grant of indemnity for liability for a monetary penalty under the Model Act, and
take the benefit of such insurance or such an indemnity.[3]

The author of the Report records an “overwhelming support for the option to specifically prohibit insurance arrangements within the model WHS laws”.[4]
The rationale to the recommendation lies in the belief that to ensure greater compliance with the model WHS laws monetary penalties imposed under WHS legislation should be “an effective deterrent and are not nullified by being paid through insurance coverage or an indemnity”.[5]
It has long been a concern whether the insurance policies providing protection against monetary penalties are in fact lawful as being against public interest but while insurance companies have not sought to argue the point and while courts have been prepared to uphold such contracts of insurance except in instances of willful or dishonest conduct such policies have protected the insureds against the effects of substantial monetary penalties.
The recommendation seeks to remove that protection.
Recently, New South Wales amended its Work Health and Safety Act 2011 to incorporate the recommendation of the Report. In the circumstances and In view of the expressed “overwhelming support” for the application of the recommendation it is reasonable to expect other jurisdictions including Queensland to also amend their WHS laws to reflect the Report’s recommendation.
If the premise of this article is correct, it is even more critical for employers and their officers to implement, review and maintain a risk management strategy.[6]
Please contact Greg Moroney if you would like to discuss this article in more detail.
 
 
[1] Safe Work Australia website – Law and regulation
[2] Review of the model Work Health and Safety laws Final report December 2018 (Review Report)
[3] Review Report – Recommendation 26: Prohibit insurance for WHS fines
[4] Review Report page 137
[5] Review Report pages 136 and 137
[6] Article – Queensland’s First Industrial Manslaughter Conviction by Greg Moroney – 17 June 2020
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
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Changes to Queensland’s guardianship laws take effect on 30 November 2020. As part of those changes, the Government has introduced new Enduring Power of Attorney (“EPA”) and Advance Health Directive forms for use from that date onwards.
New, quite detailed, explanatory guides for EPAs and Advance Health Directives have also been introduced. We strongly recommended that you read these guides carefully before making or replacing an EPA or Advance Health Directive.
Like the existing arrangement, there is a new short-form EPA and a new long-form EPA.
The short-form is used if you want to appoint the same person, or combination of people, as your attorney/s for financial matters and for personal and health matters.
The long-form is used if you want to appoint a person or a combination of people as your attorney/s for financial matters and a different person or a different combination of people as your attorney/s for personal and health matters.
Just as you can with the existing EPA forms, the new versions allow you to impose terms or set limits on your attorney/s’ powers. Those terms or limitations are binding on your attorney/s.
Notably, the new forms of EPA add a section which allows you to state your views, wishes and preferences.
You can use this new section of the form to record your wishes regarding lifestyle matters such as the area you wish to live in.
You can also express your desire to continue living in your own home for as long as possible even if it involves receiving assistance with housework and personal care.
Cultural and religious concerns can also be included.
Views, wishes and preferences stated in this part of the form are not binding on your attorney/s, but your attorney/s must take them into account when making decisions for you.
Presently, you must be capable of understanding the nature and effect of an EPA before you can validly make one. The changes to the law retain that requirement but add the stipulation that you must also be capable of making the EPA freely and voluntarily. The witness to your EPA must certify those matters.
This additional requirement is designed to ensure that not only do you understand what an EPA is, but you are not being pressured by someone else into making it.
Generally, Advance Health Directives and EPAs created before 29 November 2020 using the “old” forms will remain valid. However, if you are a resident of a residential service and made an EPA or Advance Health Directive before 29 November 2020 which appoints as an attorney someone who is a service provider for that residential service, the appointment of that person becomes invalid on 30 November 2020.
Like the existing EPA forms, the new EPA forms are available to download from the Internet. This no doubt creates a temptation for some to “Do It Yourself”. However, many factors must be taken into account when creating an EPA.
It is vital that the structure of an EPA is properly thought out and that the EPA includes appropriately worded powers as well as appropriately stated limitations.
If you require advice regarding the new laws or wish to make a new EPA, please contact Keith Schrauf or Tran Vuong.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
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Due diligence, documentation and recovery, there are specific matters to note for those lenders providing finance through the use of second mortgages. 
At Bennett & Philp, a number of our lender clients provide finance in this space and we have taken the time to collate some of our best advice to second mortgagees in a practice guide that we will issue as a series of articles in the coming month.
This guide will cover some basic information about second mortgages as well as unique things to know and traps to watch out for when lending via this type of security.
This guide is also relevant to first mortgagees in understanding the rights of second mortgagees.  Some of our more general advice will also be applicable to first mortgage securities.
Due Diligence
Due diligence in second mortgage transactions must go further than checking the balance owing on the first mortgage.  We will discuss:

How to calculate serviceability;
Tips and traps in reading valuations;
Why you should obtain full details of the first ranking security; and
The legal searches available and those you should not miss.

Mortgage vs Caveat
Different jurisdictions in Australia have different requirements for the registration of second mortgages that may affect whether a second mortgage can be registered.
We will discuss the registration requirements for second mortgages each State and Territory and provide you with some important matters to consider such as:

when the consent of the first mortgagee is required;
when to use a caveat and what the risks are; and
what happens if you have an unregistered mortgage.

Deeds of Priority
A deed of priority is an agreement entered into between mortgagees of the same property to define the nature of their relationship.  However, many deeds of priority that we are presented with, simply re-state the existing position at law.
We will discuss:

the legal rights that already exist for second mortgagees;
when a deed of priority should be used;
what a deed of priority should cover; and
tips and traps about deeds of priority.

Default and Execution
Default and execution are sometimes left to be considered if and when it occurs, but it is important that lenders entering into second mortgages understand what can happen.
We will discuss:

The rights of first and second mortgagees in an event of default;
Things to know when communicating with the first mortgagee; and
Tips and traps on effecting ‘take-out’ of the first mortgagee.

We hope you will enjoy our practice guide series and derive some important information to apply in your business, whether as a first mortgagee or second mortgagee.  At the end of our series the full practice guide and its checklists will be available for download from our website.
If you have any questions regarding this publication or wish to discuss your personal situation with us, please do not hesitate to contact us.
Bennett & Philp provides practical, tailored and cost-effective solutions for all mortgage transactions.  Our clients enjoy regular advice, education and networking opportunities at no additional charge.  We provide all prospective clients with a free initial consultation, so call us now to discuss how we may be able to help your business reach the next level.
You can book your free consultation session with Nadia directly via LawTap or contact her today on  +61 7 3001 2913.
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
 
 
 
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Often when we think about wills, we tend to immediately focus on who we want to receive what, or who we wish to exclude  A crucial party to any will is the executor – that is, the party that is appointed to carry out the wishes of the willmaker.
What is the role of an executor and who should I appoint?
The role of the executor is to call in the estate, discharge any liabilities and then administering it according to the terms of the will.  This includes but is not limited to:

locating the original will;
making funeral arrangements;
organising/lodging appropriate documentation (probate, tax returns);
preserving the assets prior to distribution;
contacting beneficiaries and advising them of their entitlements; and
defending the estate if a claim is made against it.

The minimum age for a person to be appointed as executor is 18 years and in Queensland, the maximum number of persons that can be appointed is four.  When considering who to appoint, regard should always be given to the intended executor(s)’:

age;
personality;
relationship to the willmaker and other executors appointed (as the case may be); and
location.

What happens if no executor is appointed?
If there is none appointed under a will then the estate administration responsibility generally falls on one of the beneficiaries.  However, bear in mind that the person will need to apply to the court for letters of administration and there is an order of priority on who can make such application.
Once letters of administration are granted, then the person appointed – called an administrator can to settle the estate.
What happens if they have passed away or decline to act?
There are also times where an executor may wish to forgo their responsibility (e.g. due to their age, health, geographical location etc).  When this occurs, if there is a named substitute executor, then that person will step into such a role.  However, in the absence of a substitute executor, then the same procedure where no executor has been appointed will apply.
The process is a little different in cases where an executor has died.
If a sole executor has obtained probate but passes away before settling the estate, then the deceased’s executor will be the executor of the original estate as well as the second estate (subject to court application).  If probate has yet to be obtained, then the position is the same as though no executor had been appointed.
If there are named substitutes or if there are joint executors, then the substitutes or surviving executors will step into that role or continue to act if the preceding executor has passed away.
What if I don’t have anyone to appoint as my executor?
Whether you chose not to appoint family members and/or friends or if you don’t have anyone to appoint – whatever the reason may be, there are other options available including:

independent trustee companies that specialise in providing estate administration services; and
your trusted advisor (lawyer, accountant, financial advisor).

The advantage of appointing a professional is that it ensures that your instructions will be carried out by an independent party as well as providing continuity of service.  Where there is a dispute, a professional executor will act impartially to ensure the best interests of the estate is maintained.
Depending on the trustee company or firm, there may be minimum requirements (e.g. estate value) before the executorship role is accepted.  The estate administration fee structure may also vary between different bodies.  It is therefore always important to carry out your due diligence prior to making such appointments.
If you’d like to discuss this article in more detail, please contact Tran Vuong today.
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post Executors: Who, What, When and Why! appeared first on Bennett and Philp Lawyers.

Nadia Sabaini has been named as a finalist in the Lawyers Weekly Partner of the Year Awards for Banking and Finance Partner of the Year!  
Lawyers Weekly’s Partner of the Year Awards showcases outstanding performance by partners, or partners equivalent, across individual practice areas within the Australian legal profession.

The fifth annual Partner of the Year Awards, run in partnership with principal partner Taylor Root, offers finalists and winners a range of experiences and opportunities that extends far beyond their winning moment.
This year’s finalists which were announced from Tuesday 6 September, features 250 high-achieving legal professionals across 31 submission-based categories.
“The Partner of the Year Awards is all about acknowledging those at the top of their game — the best partners in Australia who exude the highest level of technical expertise, finesse and leadership capabilities,” said Lawyers Weekly editor Emma Ryan.
“This year’s finalists represent the elite in each practice area, with their work making an invaluable contribution to their firms, clients and the community alike.
“On behalf of Lawyers Weekly, I’d like to congratulate each of the finalists on their achievements. We look forward to celebrating with you soon.”
Nadia Sabaini, Director at Bennett & Philp Lawyers, said that she was humbled to be recognised and proud to be named as a finalist in the Partner of the Year Awards 2020.
“Bennett & Philp’s recognition for our excellent contribution to the Banking and Finance industry reinforces the strength of our service and dedication to connecting with the community and engaging with clients,” Nadia added.
Nadia has also been nominated as a finalist in the Women in Finance Awards 2020 category. 
 
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
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An ambulance officer and paramedic arrived at an emergency scene six minutes after receiving an emergency call.
They were confronted with a 25-year-old chronic asthmatic who had suffered a severe asthma attack. She was on her back on the grass with lockjaw and her face was blue. She was effectively in respiratory arrest with only two laboured breaths per minute. Her blood pressure was high at 155/100 and she was in tachycardia with an elevated heart rate of 150 beats per minute (bpm).
She was oxygen aided immediately and salbutamol (a bronchodilator used to open the airways) was administered. The paramedic chose not to administer adrenaline (an alternative bronchodilator amongst other effects) due to a risk of causing heart failure when she already had a very high heart rate.
Her breathing improved and after about 10 minutes she was placed in the ambulance to be taken to hospital. On the way to hospital, her condition deteriorated again with her heart rate dropping to 40 bpm. The paramedic then administered adrenaline along with other emergency procedures.
On arrival at the hospital, she was cyanosed, had no respiratory effort and had no carotid pulse. Further adrenaline was administered and she survived. Sadly, she had sustained severe, irreversible brain damage as a result of deprivation of oxygen (hypoxia) and lived in a vegetative state for the next thirteen and a half years before her death.
Supreme Court claim against Queensland Ambulance Service
A claim was commenced in the Supreme Court in Cairns by her litigation guardian alleging primarily that the Queensland Ambulance Service (QAS) had breached its duty of care to her by its paramedic administering salbutamol rather than adrenaline as the latter was the preferred drug. It was alleged that if adrenaline had been administered then she would not have suffered her hypoxic injury.
One of the central arguments advanced was that the paramedic failed to follow the QAS Clinical Practice Manual (CPM) as it was asserted that the CPM positively prescribed the administration of adrenaline in the circumstances.
At trial, judgment was given in the favour of the QAS as it was considered that there were valid reasons for the paramedic to choose salbutamol in the circumstances over adrenaline and the paramedic was entitled to use his clinical judgment in making that choice in consideration of the CPM.
The trial judge formed an opinion about the evidence of the paramedic given at trial that he had, in fact, used his clinical judgment in making a choice between using salbutamol and adrenaline. That was despite his evidence at trial being somewhat different to previous written statements. Additionally, the trial judge found that there was a body of medical opinion which agreed with the choice made by the paramedic in the circumstances, even though there was also a body of medical opinion which would have preferred the administration of adrenaline.
Queensland Court of Appeal
A successful appeal to the Queensland Court of Appeal resulted in the judgment being overturned and the deceased’s estate was awarded an agreed sum of about $3 million in damages.
The Court of Appeal did not accept the trial judge’s determination about the paramedic’s evidence at trial. It preferred reliance upon his written statements. It also considered the paramedic had misunderstood the CPM, could not have been expected to know of the existence of competing bodies of medical opinion on the issue and in any case was not competent to make an assessment of the relative merits of the two drugs.
Additionally, pharmacological evidence was led at the Court of Appeal which had not been put to the trial judge in the Supreme Court in Cairns. The effect of that further evidence was that adrenaline was a much faster-acting drug so the Court of Appeal reached the conclusion that it was the superior choice.
High Court appeal by the Queensland Ambulance Service
The QAS appealed the decision of the Court of Appeal to the High Court of Australia. Its decision is found at Queensland v Masson [2020] HCA 28, delivered on 13 August 2020.
Although the High Court decision is made in two separate joint judgments, the conclusions of all 5 judges were unanimous. The High Court overturned the Court of Appeal’s decision and reinstated the decision of the trial judge in the Supreme Court in Cairns.
In short, the High Court said the Court of Appeal should not have accepted and acted upon the new pharmacological evidence of adrenaline being faster-acting or what it called the “timing submission”. That specific issue had not been put to the medical experts at trial. Also, and probably most importantly, the trial judge’s conclusions about the evidence of the paramedic at trial should not have been overturned by the Court of Appeal.
Some of the High Court’s comments included:

It was open to his Honour to prefer [the paramedic’s] oral evidence to the 2009 statement.
The trial judge’s finding that [the paramedic] made a clinical judgment not to administer adrenaline because of the presence of [the patient’s] high heart rate and high blood pressure was neither contrary to compelling inferences nor glaringly improbable. It should not have been overturned.
Over objection, the Court of Appeal accepted the timing submission notwithstanding that the trial judge’s attention had not been drawn to the parts of the CPM that referred to the timing of the effect of the drugs, nor had the expert witnesses been asked to address this issue.
It is the oral evidence of the witness and usually, therefore, the trial judge’s assessment of it, that is of paramount importance.
A good deal has been said by this Court about the propriety of an appellate court setting aside a trial judge’s finding of fact based on the credibility of a witness;
In this matter, it was not open to the Court of Appeal to reject the primary judge’s analysis of [the paramedic’s] oral evidence.

Necessarily, the above is a very truncated summary of complex medical and legal issues with evidence considered in three different courts.
It is not the first time that the High Court has reversed a decision of a State court of appeal for overturning judgments by a trial judge or by a jury based upon the evidence of witnesses when the appeal court did not have the advantage of hearing and seeing the witnesses at trial.
Conclusions
It can be seen once again that medical negligence claims can be very complex and it is extremely important to obtain all the necessary evidence as soon as possible. It was too late to introduce new evidence at the appeal stage. Even though such evidence might have been compelling and made a difference at trial, the timing effect of the two drugs was something that needed to be addressed by the medical experts at the trial stage – it was too late on appeal.
Asthma sufferers may well have their own opinions about this case. Indeed the patient in this case was a chronic asthmatic who normally carried an Epi-Pen (adrenaline auto-injector).
But, paraphrasing one sentence in the minority judgment of the High Court – an emergency doctor would not be regarded as being negligent for considerately choosing salbutamol over adrenaline in the first instance, much less an emergency paramedic operating in the field without the assistance and the facilities of an emergency room.
Certainly, there were no “winners” in this long, sad saga.
John Harvey is Bennett & Philp’s resident medical negligence expert. If you have any queries regarding medical negligence or other compensation law claims, please contact us today.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
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A recent decision out of the Supreme Court in Cairns in the matter of Zavodny v Couper and QBE Insurance resulted in a victory for an injured cyclist who took evasive action to avoid a reversing driver.
Evasive action
The plaintiff, Mr Zavodny was riding his electric bicycle along McIlwraith Street, South Townsville. He was intending to visit Ede Shade Solutions. The roadway was fairly wide with spaces for perpendicular parking outside the store.
As Mr Zavodny was approaching the store, the vehicle driven by Mr Couper reversed into his path. Mr Zavodny was injured in attempting to take evasive action.
Although liability was admitted there was a claim on behalf of QBE that Mr Zavodny had been contributorily negligent for not keeping an adequate lookout, for travelling at an excessive speed to negotiate around reversing vehicles and for failing to ride in the middle of the lane where he would have been more visible to reversing drivers.
The critical factual finding was that Mr Couper did not reverse gradually from the parking area which could have alerted Mr Zavodny to slow down or to take evasive action but rather he reversed abruptly in front of Mr Zavodny leaving him no option but to take evasive action. Mr Zavodny was injured in the course of taking evasive action.
The Court found that Mr Zavodny was riding appropriately as near as practicable to the left side of the road (in accordance with the relevant traffic regulations) and even if he had been riding in the centre of the lane it wouldn’t have made a material difference to him being seen by reversing drivers. There was no evidence that he was travelling unreasonably fast, or that he was travelling too close to the parked vehicles or that he was not keeping a proper lookout.
Mr Couper was not called to give evidence.
Judgement
Judgement was entered in favour of Mr Zavodny with no reduction for contributory negligence.
Mr Zavodny was awarded $633,987.57 in damages.
Mr Zavodny suffered a fracture to his left ankle (which later progressed to osteomyelitis) as well as neck, shoulder, chest and rib injuries. He also developed an adjustment disorder with depressed mood. He claimed his injuries prevented him from relocating to Western Australia to take up a job offer to manage fishing vessels. 
The medical evidence supported a finding that Mr Zavodny’s injuries precluded him from effectively performing the tasks associated with managing a fishing vessel. It was not a role where he could simply delegate some of the heavier tasks to a deckhand or crewman. It was determined that he was permanently unfit to work as a master or crewmember on vessels.
Mr Zavodny was 59 years of age at the time of the accident. His economic loss was calculated on the basis that he would have worked full-time to age 70 and part-time to age 75. He was awarded $292,452.60 for past economic loss and superannuation and $206,094.47 for future loss of earnings including the loss of employment benefits for a motor vehicle and accommodation.
One of the significant issues in determining economic loss was the extent to which Mr Zavodny had recovered from his injuries. 
During the course of the claim, the insurer claimed legal professional privilege in respect of a number of surveillance reports. 
In an earlier application, however, the Insurer was ordered to provide copies of the surveillance reports to the Claimant’s solicitors.
The case goes to show that a relatively straightforward accident can throw up complicated issues to be determined.
 
 
Kevin Barratt is Bennett & Philp’s resident cycling enthusiast who represents a number of cyclists and who keeps a close eye out for cases involving wins for cyclists. 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
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When opening up a new pharmacy as most pharmacists know you need to obtain the recommendation from the ACPA first. To do this you need to show that you have complied with all of the relevant location rules.
Once you have the ACPA recommendation you then spend the money to get the pharmacy ready to open and when your pharmacy is ready to trade (which should be within 6 months) it’s expected that the Secretary (“Secretary”) of the Department of Health (“DOH”) will give the pharmacy the PBS approval number.
Discretion to activate and approve
What you might not realise however is that the Secretary still has a discretion whether to actually activate and approve the PBS approval number (even if you have received the administration number). Obviously, that is a significant risk to the pharmacist given they have to spend the money to get the pharmacy ready to open before they can actually get the PBS approval number.
Fortunately, this is usually a straightforward exercise and provided the administration letter has been provided along with evidence that you are ready to start trading the Secretary will simply activate the PBS approval number. However, this is not always the case.
A recent example of the issue
Recently we were involved in a matter where the pharmacist had spent the money fitting out the store and was ready to trade, the administration number had been received but it had not been activated. Unbeknown to the pharmacist the medical centre (which the pharmacist had no involvement with) had had a reduction in the doctors’ full-time equivalent hours. The Secretary would not disclose who had informed the DOH of this change but insisted that they were entitled to use this new information.
It was uncontested that at the time of obtaining the ACPA recommendation all of the location rules requirements had been met and that the pharmacist was still unaware of this change in the doctors’ hours when the PBS approval number activation was requested.
It should also be noted that the location rules specifically state that you only need to demonstrate that the location rules have been complied with at the time you make the application to the ACPA and the time the ACPA considers the application. After that, it is no longer a requirement.
Notwithstanding that the Secretary refused to provide the PBS approval number and rejected the approval claiming that the Secretary effectively had unlimited discretion to consider all matters.
This matter then had to be appealed to the AAT, during the trial this issue was finally resolved in the pharmacist’s favour by consent. This means there is no actual judgment to establish a precedent or to give the DOH any guidance as to the interpretation of the Secretary’s claimed unfettered discretion.
Taking care and protecting your rights
Pharmacists should take care in making sure that every step of the PBS approval process is documented and if any issues arise with the Secretary that they obtain expert legal advice to ensure their rights are properly protected. This is particularly important given the short time periods that apply to appealing any decision of the Secretary and the money that will have already been spent in getting the pharmacy ready to open that will otherwise be wasted.
If you’re having complications with your PBS approval process or would like to know more about this issue, please contact Andrew Lambros or Maurice Hannan today.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
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As part of the raft of changes brought in by the Building Industry Fairness (Security of Payment) and Other Legislation Amendment Act 2020 passed on 15 July this year there are some that are expected to commence as early as 1 October this year.
These changes should be front of mind given the changes will affect current practice in less than a month. This article points out some of the more important changes that might affect your practices very quickly. This article does not set out all the changes: –
The subcontracting exception schedule 1A Section 8
This section was inserted in 2013 and allowed for an unlicensed person to enter into a contract to carry out building work so long as the works were not residential or domestic building work and the work was to be carried out by an appropriately licensed contractor. This provision has been deleted.
Within debate in the Parliament the provision was disparagingly referred to as a loophole. It might more accurately be referred to as a legislative exception. These changes appeared within the most recent amendments to the Bill on the recommendation of the Committee reviewing the initial bill. This was surprising bearing in mind it had little relationship to other subjects dealt with within the Bill. It is currently unclear as to whether the provision deleting this provision will, by proclamation, commence 1 October or later, as some further consultation with the industry is said to be likely. These provisions have on occasion been used within a group of companies where small amounts of “building work” was carried out and to ensure licencing compliance. If that were the case for you, there will be a need to review compliance issues, so you don’t fall foul of hefty penalties for unlicensed contracting and the possibility of being unable to recover payments under your contract.  
Supporting Statements to accompany payment claims
If you make a payment claim and you have engaged subcontractors or subconsultants there will be a need to provide with any payment claim a supporting statement. That statement consists of a declaration that all subcontractors have been paid all amounts owed to them at the date of the payment claim or stating who hasn’t been paid giving details of the full amount that the subcontractor is still unpaid, details of the unpaid payment claim, the date the subcontractor carried out the construction work, and any reasons the amount was not paid in full.
The validity of the payment claim is not affected if a supporting statement is not provided but it would make you open to fines by way of maximum to a company of over $65,000.00.
Before 1 October you will need to have your formats for payment claims amended to accommodate this change or risk very substantial fines.
Payment for scheduled amounts
You need to ensure that your contracts provide for the due date for payment and when the payment schedule is due to be delivered. If there is no provision in the contract concerning these issues the Act prescribes by default that a payment schedule is due 15 business days after the claim is given. Somewhat confusingly the Act also provides in a default circumstance that the due date for payment will be 10 business days after the claim has been given.
To add to these problems there is a new offence should payment not be made of the stated amount in a payment schedule by the due date. For a company the fine is a maximum of approximately $65,000.00.
We are of course ready to assist with any of these transitionary issues you may have concerning these and other problems associated with the new provisions. Contact Tony Mylne if you’d like to know more.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post Important Changes for Builders – Commencing 1 October 2020 appeared first on Bennett and Philp Lawyers.

In the recent case of Happy Lounge Pty Ltd v Choi & Lee Pty Ltd and Anor [2020] QDC 184 the Brisbane District Court has held that orders related to the public health response due to COVID-19 resulting in the forced closure of a bar and café in the Brisbane nightclub area of Fortitude Valley was not an event permitting terminating the Business Sale Contract due to its frustration.
The buyer, Happy Lounge Pty Ltd, had entered into a contract with Choi & Lee Pty Ltd (as trustee) to purchase a bar and lounge known as “The Palace”.  The contract was in the form of the standard REIQ Business Sale Contract used in most small business sales in Queensland.  All conditions, including the landlord’s consent to the assignment of the lease and approval of the transfer of the liquor licence, had been met and the contract was effectively unconditional.
On 23 March 2020 Queensland’s Chief Health Officer issued a Public Health Direction under the Public Health Act 2005 which prohibited non-essential businesses, including The Palace, from operating from that day until the end of the public health emergency (“Forced Closure”).
The order was issued only one day prior to completion of the sale of the Palace on 24 March 2020.
The buyer refused to settle on the day of settlement and subsequently terminated alleging that the seller had failed to comply with the terms of the contract.  The seller then sued for specific performance of the contract.
Arguments as to frustration of contract
The REIQ Business Sale Contract standard conditions do not contain a force majeure clause.  As an alternative, the buyer asserted that the Contract had been frustrated as a result of the Forced Closure.  The common law doctrine of frustration permits a contract to be terminated where an occurrence:
“had the effect of radically changing the situation in which the Contact was to be performed, so as to make performance fundamentally different from that contemplated by the parties at the time the Contract was made.”
As we noted in our earlier discussion of the subject on 23 March 2020, the doctrine of frustration requires a very high threshold to be met.  As the Court noted in Happy Lounge:
“The incidence of hardship, inconvenience or material loss to a party on account of increased expense, delay or onerousness are generally not sufficient to frustrate a contract. All contracts involve the preparedness by a party of an obligation to perform in the face of an uncertain future.”
The buyer asserted that the contract was frustrated because of the inability of the seller to perform certain of its obligations due to the imposition of the Forced Closure.
First, the buyer argued that the seller could not give, and the buyer could not take, possession of the “Business and the Business Assets” as a result of the Forced Closure as required by the Contract.  The Court found that:

the Forced Closure did not interfere with the performance of those obligations, instead placing restrictions on the buyer’s freedom to operate once it took possession of the Business.
The fact that only a small portion of the value of the business had been allocated to goodwill in the Business Sale Contract was taken by the Court to be an indication that the Buyer was not deprived of substantially the whole benefit of the consideration under the Contract.
The Forced Closure was likely to persist only indefinitely but most likely for a short period as compared to the overall potential length of the lease (up to 12 years)
The fact that at the time of signing of the Contract the Covid-19 crisis was “widely known to be unfolding” and the potential for restrictions on the use of the premises should have been foreseen by the buyer.

Second, the Forced Closure meant that the seller was unable to operate as a going concern (trading business) up to Completion as required under the Contract.  The Court noted that while the seller was unable to operate as a going concern for the one day period between the Forced Closure and the completion date, it had done so for the 26 days from the Contract signing and had thus the obligations had been substantially performed.
Third, the seller was no longer able to attend at the business premises to provide the required tuition/assistance for the week following Completion, as well as provide introductions to suppliers, clients and staff.  The Court held that while this was inconvenient, there was nothing in the clause that indicated that the introductions needed to take place at the business premises.
Arguments as to seller’s breach
The buyer also made arguments that the seller had breached the Business Sale Contract due to its failure to obtain the lessor’s mortgagee’s consent by the settlement date.
The buyer had better luck with that argument.
The relevant boxes in the REIQ Contract Reference Schedule were both ticked so that the contract stated that the consent of the mortgagee was both “required” and “not required”.
Notwithstanding that, the Court was satisfied that the relevant standard condition applied because even though there was not a condition in the lease requiring the lessor to obtain the mortgagee’s consent, there was one in the relevant mortgage and that therefore the mortgagee’s consent was required.
The obtaining of the consent of the lessor’s mortgagee to the assignment of the lease is an area which is regularly overlooked by all parties – lessors, buyers and sellers in business sale transactions involving the REIQ standard Business Sale Contract and an area which will now need to be sharpened across Queensland practice.
Another successful argument as to the seller’s breach related to the special condition that required the seller to provide evidence of the value of the stock, which the Court found the seller has failed to do.
Ultimately the Court held that the buyer had validly terminated the Contract and was entitled to the return of its deposit.
Watch this space
Be prepared for a tsunami of legal proceedings relating to force majeure and frustration as the events of the March lockdown begin to play out in trials across the country
The post Forced Closure Due to COVID-19 Just Not Frustrating Enough appeared first on Bennett and Philp Lawyers.

Media organisations and businesses in general that invite public comment on their Facebook or other social media platforms need to exercise caution and perhaps reconsider their position following the decision in the wake of the New South Wales Supreme Court decision in the matter of Voller v Nationwide News & ors.
On 25 July 2016, ABC 4 Corners broadcast a program which concerned the Don Dale Youth Detention facility in the Northern Territory and the alleged abuse and mistreatment of detainees. Dylan Voller was a former detainee of the detention centre and was featured in the ABC program.
Following the broadcast, various media outlets published their own stories which were subsequently posted on their respective Facebook pages. In doing so they invited public comment in respect of the matter.
Many of the comments posted on the relevant Facebook pages contained seriously defamatory allegations against Voller.  He therefore subsequently issued legal proceedings, not in respect of the original reports or editorials but in relation to the defamatory comments posted on the relevant Facebook pages.
His action, which is still awaiting a hearing, is based entirely on claims that the various media outlets involved, were liable for the comments posted on the relevant Facebook pages by third party users.
On 24 June 2019, New South Wales Supreme Court Judge Stephen Rothman ruled that in operating public Facebook pages which invited third party comment, media companies assume the risks of liability for the defamatory comments posted on their social media sites. In his decision he made the finding that media organisations relied upon their public Facebook pages for their own commercial ends, “exciting the interests of Facebook users; increasing the number of subscribers to the digital media publication or newspaper; and increasing the profile of the public Facebook page and the initial media publication, which affects the advertising revenue”.
The decision was largely upheld by the New South Wales Court of Appeal. Paragraph 1. of the headnote of the Court of Appeal decision encapsulates the Court’s decision.
“A person who participates in and is instrumental in bringing about the publication of defamatory matter is potentially liable for having done so notwithstanding that others may have participated in that publication in different degrees. In this case, the applicants [ie the Defendants] maintained Facebook pages and encouraged and facilitated the making of comments by third parties which when posted on the page were made available to Facebook users generally and were, therefore, publishers of the comments.”
The matter is currently the subject of a High Court application for special leave to appeal.
If you would like to learn more, contact Mark Jones.
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The Insurance Council of Australia (ICA) and the Australian Financial Complaints Authority (AFCA) recently announced their intention to file a test case to consider and resolve questions over the validity of exclusion clauses for cover for listed diseases in business interruption policies.
The primary purpose of the test case is to obtain a decision from a superior court on whether references to a ‘quarantinable disease’ under the Quarantine Act 1908 can be properly construed as a reference to a ‘listed human disease’ under the Biosecurity Act 2015 in various business interruption cover policies issued to small businesses.
The results of such a test case are intended to resolve uncertainty and resolve claims for thousands of small business and the relevant insurers.
Issue
Many interruption insurance policies of major insurers exclude claims for losses that would be otherwise covered under the Policy where such business interruption losses resulting from a disease that is declared to be a quarantinable disease under the Quarantine Act 1908.
Such exclusions were originally introduced after the outbreak of SARS which focused attention on the potentially catastrophic consequences for the insurance industry of wide-ranging claims for business interruption resulting from a pandemic.
The issue is that the Quarantine Act 1908 was replaced by the Biosecurity Act 2015, which covers most of the same subject matter, referring to ‘listed human diseases’.
COVID-19 became a listed human disease on 21 January 2020.
The arguments for and against
The relevant insurers (via the ICA) are likely to argue that the subject matter and underlying intent of the two statutes are the same and that therefore wording in the policy exclusions which refers to the Quarantine Act 1908 “as amended” will extend the operation of the relevant exclusion to any list human disease under the Biosecurity Act.
Such arguments will also need to convince the Court that a reference to a “quarantinable disease” as stated in the insurance policy can be read as a reference to a ‘listed human to human disease’.
Arguments against this interpretation will state that the Biosecurity Act 2015 does not amend the Quarantine Act 1908 but repealed and replaced it altogether and that such exclusions are therefore invalid.
It’s possible the decision may result in valid exclusions for some insurers but not others, depending on the policy wording.  For example, this could occur if the Court considered that the Biosecurity Act 2015 was “successor legislation” to the Quarantine Act 1908 but not an amended form of that Act.
Potential results and implications
If the insurers are successful, it will mean that business interruption insurance cover is denied to thousands of small businesses – if unsuccessful the insurance industry will need to potentially shoulder an enormous claims burden in an already difficult and uncertain trading environment.
The case will also involve interesting questions relating to the replacement or amendment of legislative provisions more generally.
If you would like to learn more about how this may impact your business, please contact Chris Lillie or book him online via LawTap.
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