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Contesting a Will and What You Need to Know Featuring Amanda Azzinaro

Welcome to LawPod by Brydens Lawyers!
 
In this week’s edition of LawPod, Lee is joined by Amanda Azzinnaro from our Wills and Estates division- to discuss the process of contesting a will, the different types of challenges, and the logistics surrounding the claim.
Take a listen through the link in our bio!
If you have a topic you would like to hear discussed – please send it through to: [email protected].

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Question of the week- FRIDAY 08TH NOVEMBER – My Business Is About to Be Acquired – What Happens to My Intellectual Property?

Question: My Business Is About to Be Acquired – What Happens to My Intellectual Property?”
Whether your business is being sold or acquired, the destiny and value of your Intellectual Property (IP) would have been agreed with the purchaser (or acquirer) of the business at the initial negotiation and due diligence stage and as a precursor to entering into any sale of business (or acquisition) agreement.  The sale of business (or acquisition) agreement would then formally record in writing the IP which is essential to the business and which the parties agree will be transferred from the vendor to the purchaser (or acquirer) upon completion. The sale of business or acquisition agreement would likely be augmented by other documents such as agreements for the transfer of patents and assignment of licenses, as an example.
Of course you could refuse to transfer any or all your IP to the purchaser (or acquirer). However, from a commercial perspective the IP may the most valuable asset of the proposed sale or acquisition. For example if the business name of the business was not also being transferred with the sale of the business, and the name of the business constitutes IP, the purchaser (or acquirer) may suspect that you would use that business name to set up another competing business.
That aside, generally, as a vendor you would normally sell or transfer the following IP with your business to the purchaser/acquirer:

Trade marks, patents, licenses
Business name
Customer lists and databases
Telephone numbers, websites, domain names and e-mail accounts
Social media accounts.
Under a sale of business or acquisition agreement, as a vendor or transferee, youwould be obliged to assist with the relevant IP being transferred to thepurchaser/acquirer.

If you are considering the sale or acquisition of a business which will necessarily involve the transfer of IP then you need to ensure that your interests are properly considered and protected. For that purpose you should contact Brydens Lawyers and have one of our expert in our commercial division assist in providing the legal advisory presentation necessary to achieve the desired outcome.

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Latest News From Lee 01st November 2019 – Insurers and the Motor Accident Injuries Act

You have often read of my complaints concerning the Motor Accident Injuries Act which was introduced on 1 December 2017 for, ostensibly, the purpose of reducing greenslip CTP premiums whilst maintaining adequate coverage for innocently injured road users and ensuring the economic viability of the scheme.
To the extent that there has been a reduction in CTP greenslip premiums the legislation has proven successful. As to maintaining adequate coverage for injured road users, the scheme has, for reasons previously discussed, been a complete and abject failure. There is no proper or adequate coverage available for injured road users. Rather, the Government has systematically reduced benefits which were otherwise available to injured road users.
As to the economic viability of the scheme, the NSW Liberal Government should be applauded. The scheme has proven to be incredibly viable for insurers. This was acknowledged by the responsible Minister, Mr Victor Dominello in his Linkedin post of 28 October 2019. The post is entitled “WE ARE CRACKING DOWN ON INSURER SUPER PROFITS”. The post provides that the Minister is introducing guidelines/architectural drawings that will permit the Government to put an end to super profits by CTP greenslip insurers.
The mere acknowledgement by the Minister that insurers are or will be making super profits under the scheme as currently enacted Is a damning indictment as to the inadequacy of the scheme, the inequity as between the rights of the injured road user and the insurer and the paucity of benefits available.
The post goes on to say that the laws to be introduced will cap insurers’ profits at 10%. Is a 10% profit margin modest? For many business owners it would represent a very successful outcome and would no doubt be far beyond what many are in fact achieving.
And what is to happen with the clawed back super profits? According to the Minister they are to be returned to the motorists in the form of reduced premiums and/or increased benefits for those injured. How are they to be returned by way of increased benefits? There have been thousands upon thousands of injured road users already who have lost out under the current scheme. Are they to be provided with additional compensation? For what losses will there be increased benefits? Is the legislation to be amended and if so, in what respects? The lack of detail or information provided is disconcerting.
The average CTP greenslip premium is in the order of $490 per vehicle. This is, generally speaking, far less than what most car owners would pay by way of comprehensive insurance on their vehicle. A greenslip premium provides unlimited cover for any driver of the vehicle involved in an accident which has resulted in injury to another person. The comprehensive insurance is limited to the value of the vehicle.
For the level of coverage it provides, greenslip insurance is incredibly cheap.
There does not need to be any further reduction in greenslip premiums. There needs to be a revision of the benefits available to injured road users so as to ensure that those who are the innocent victims of another person’s negligence are adequately compensated.
For as long as this Government is solely focused on the dollars and cents as opposed to the human suffering often seen in the innocent victim of a motor vehicle accident, then they will never get it. The innocent victims of motor vehicle accidents are not simply claim numbers to be added to some actuarial report to be relied upon by the Government and insurers to spruik the reduction in CTP greenslip premiums. They are human beings who deserve respect and to be treated fairly.
That is not happening.

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Question of the week- FRIDAY 01ST NOVEMBER – I Have Been Injured Whilst on a Cruise Ship – What Do I Need to Know?

Question: I have been injured whilst on a cruise ship- what do I need to know?”
Regrettably accidents do happen at the most inopportune time. Vacations on a cruise ship are no exception.
Here are a few things you should know if injured on a cruise ship:

Seek appropriate medical assistance – cruise ships will have available a medical centre staffed by qualified healthcare professionals.
As soon as you are able to do so, make a note of the date, time and location of the accident. Write out in detail the circumstances of the accident. A contemporaneous note can prove invaluable if later on you are called upon to establish what in fact occurred.  It is also important, if possible, to take photographs of the accident site.  In addition the name and contact details for any witnesses should also be ascertained.
It is also important to note where the ship was located at the time of the accident. That is, was it docked at a port or at sea?
Keep a copy of your cruise ship paperwork. This will include your ticket/contract which may contain an exclusive jurisdiction clause which can determine the court in which you are able to bring any claim that is available to you.
Consider the coverage that your travel insurance offers. A policy of travel insurance may cover you for all medical expenses incurred whilst on board the cruise ship. Travel insurance however does not usually extend to cover you for ongoing medical treatment and other losses arising from the accident.
Contact Brydens Lawyers as soon as possible for advice as to whether a claim is available for compensation for the injuries which you have sustained. You may be entitled to claim:

Non-economic loss or damages for pain and suffering
Past and future medical expenses
Past and future wage loss
The value of past and future care or domestic assistance required by reason of injury
A contribution towards your legal costs.

Strict time limits apply with respect to the prosecution of any claim for any injury suffered and claims arising from injuries suffered on a cruise ship may be limited to only two years from the date of the injury otherwise the claim will be statute barred.
For expert legal advice and representation as to whether there is a claim for compensation available for injury sustained on a cruise ship contact Brydens Lawyers without delay.

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Medical Negligence Claims & The Right Advice Featuring Larissa Atkinson

Welcome to LawPod by Brydens Lawyers!
 
In this week’s edition of LawPod – Lee is joined by Larissa Atkinson, the Practice Manager of our Medical Negligence division, to discuss the types of medical negligence claims we can assist you with; the process involved when making a claim; and an insight into what it’s like to work in this area of law.
Take a listen!
If you have a topic you would like to hear discussed – please send it through to: [email protected].

Download the podcast

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Question of the week- FRIDAY 25TH OCTOBER – Under What Circumstances Can My Superannuation be Released Early?

Question: Under What Circumstances Can My Superannuation be Released Early?”
Often we are asked whether superannuation benefits can be accessed early. The superannuation account balance can be released if you are 65 or over, even if you have not retired. If you have retired then you can access your superannuation account balance as from the age of 60. For those aged between 55 and 60 years, the superannuation account balance can be accessed once you have reached your preservation age. Your preservation age is determined by your date of birth. For example those of us who are born before 1 July 1960 have a preservation age of 55 years. There are also circumstances whereby you can access your superannuation benefits earlier than what would otherwise be the case by making an application based on permanent incapacity, compassionate grounds or financial hardship.
As to permanent incapacity, an application can be made to the superannuation fund supported by the reports of two medical practitioners to certify that by reason of ill health, it is unlikely that you will ever be gainfully employed in a capacity for which you are reasonably qualified because of your education, training or experience. If the application is approved the entire account balance will be released, subject to tax.
If the application is to proceed on compassionate grounds, it will be made through the Department of Human Services for the specified reasons of requiring funds for medical or dental treatment or transport to receive such treatment for either yourself or one of your dependents, mortgage assistance to prevent a home from being sold by a lender, modification to a home or vehicle to accommodate a severe disability for yourself or one of your dependents, palliative care for terminal illness for yourself or a dependent or for expenses associated with a dependent’s death, funeral or burial. In these instances applications must be supported by the appropriate documentation and if approved, will be for an amount up to $10,000 and same may be subject to tax.
For financial hardship applications you must be in receipt of Centrelink benefits for a continuous period of 26 weeks and be able to establish a financial hardship according to the criteria prescribed by the Superannuation Industry (Supervision) Regulations 1994. If the application is approved, there are restrictions on cash distributions of up to $10,000 per financial year.
Brydens Lawyers has a specialised Superannuation and TPD Division available to assist with the provision of legal advice and representation for all superannuation and TPD applications. If you are unable to work by reason of injury or illness, whether or not work-related, you may have a valuable claim to superannuation and/or TPD benefits available to you. For a free no obligation consultation with one of our expert lawyers please contact Brydens Lawyers without delay.

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Sydney Uni Flames and Women in Sport Featuring Karen Dalton

Welcome to LawPod by Brydens Lawyers!
 
In this week’s edition of LawPod, Lee is joined by Karen Dalton – WNBL Hall of Famer and current General Manager of the Sydney Uni Flames.
Take a listen!
If you have a guest you would like to see featured, email us at: [email protected].

Download the podcast

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Latest News From Lee 18th October 2019 – Superannuation

Superannuation, as we know, is a legal obligation on the part of all employers to contribute a minimum percentage of each employee’s earnings to a compliant superannuation fund or retirement savings account. Currently the superannuation guarantee contribution rate is 9.5% of a worker’s ordinary time earnings.This rate will increase by 0.5% on 1 July 2021. Further increments will apply annually up until 2025/26 when ultimately the superannuation guarantee rate will be set at 12%.
This of course is good news for all employees. It is however only good news if the superannuation guarantee rate is in fact paid by the employer.
Currently an employer must pay the superannuation guarantee at least four times a year, by the quarterly due dates. A report by Industry Super provides that one in three Australian workers are owed superannuation benefits. It suggests that this problem would be largely resolved if the legislation was changed so as to provide that an employer had to make the superannuation contribution when wages or salary were in fact paid.
All workers should ensure that they are being paid superannuation guarantee benefits and at the correct rate. The simplest way to do this is to contact your superannuation fund directly. They will be able to provide to you all relevant information concerning payments. It is recommended that such checks are undertaken regularly given the current reporting obligations only impose a quarterly payment schedule for employers.
If an employer fails to make payments at all, for example if the business is having financial problems, and it ceases trading, then the worker may miss out on the contributions which are owed. In recognition of this problem the Government has proposed an amnesty in legislation introduced into Parliament on 18 September 2019. It proposes to provide an amnesty to delinquent employers so as to enable the payment of superannuation benefits without additional charges being imposed. The legislation is yet to be enacted.
If you believe that you are owed superannuation benefits by your employer then you can engage the assistance of the Australian Taxation Office. The ATO will engage with employers to address the outstanding debt and failing same, can take stronger action including penalty notices issued directly to directors and garnishee notices issued to the employer for monies owed.

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Question of the week- FRIDAY 18TH OCTOBER – What is Financial Abuse?

Question: I Have Slipped and Injured Myself at a Shopping Centre – What Are My Next Steps?”
The mere fact that someone slips and falls in a shopping centre and suffers injury is not in itself sufficient to establish an entitlement to a claim. What needs to be proven, ultimately to the satisfaction of the court, is that the owner or occupier of the shopping centre had breached their duty of care to the injured person and that same was causative of the injury, loss or damage suffered.
Accidents do not just happen, they are caused. Accordingly, in the case of an accident within a shopping centre it is necessary to determine the cause of that accident and the party responsible for same. If, and put as simply as we can, the injured person tripped over their own feet, then there would be no claim as against the owner/occupier of the shopping centre. If however the injured person slipped or tripped on something and ultimately it was held that the presence of the contaminant or the trip hazard and the failure to rectify same constituted negligence on the part of the owner/occupier of the shopping centre, then the injured person would be entitled to recover damages for their injury, loss or damage.
In the event that you have suffered injury as a result of a fall on either public or private property you may have a valuable right to claim compensation for the injuries sustained. For a free no obligation assessment of any claim that may be available to you, contact Brydens Lawyers without delay. Strict time limits apply.

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Inside Commercial Law Featuring Hamid Mirza

Welcome to LawPod by Brydens Lawyers!
 
In this week’s edition of LawPod – Lee is joined by Hamid Mirza, the Practice Manager of our Commercial division, to discuss the type of commercial matters we can assist you with; the recent growth in new businesses; and the importance of engaging a commercial lawyer.
Take a listen!
If you have a topic you would like to hear discussed – please send it through to: [email protected].

Download the podcast

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Question of the week- FRIDAY 11TH OCTOBER – What is Financial Abuse?

Question: What is Financial Abuse?”
Most of us would be familiar with the terms “physical abuse”, “verbal abuse” or “emotional or psychological abuse”. Often these are terms that are used, regrettably, in the course of criminal and in some cases, family law proceedings.
A term with which we may not be particularly familiar is “financial abuse”.
Financial abuse is recognised as an act of violence within the confines of a family or relationship and can occur more frequently than what we think. It can be as serious and debilitating as physical, verbal and/or psychological abuse.
Financial abuse occurs when one member of a family or relationship denies another member of that relationship any semblance of financial autonomy so that he or she would unreasonably withhold financial support that was required to meet the reasonable living expenses of the family member, of a child or another member of the family that was entirely or predominantly dependent on that person for financial support.
Whether the abuse be financial, physical, verbal or psychological, it is well recognised by the law and there are avenues of redress. If you have been the victim of any such abuse within the confines of a family or other relationship, then you need expert legal advice and representation that can be provided by Brydens Lawyers. Brydens Lawyers has accredited specialists available in both Family and Criminal Law to assist with dealing with any type of abuse that you or someone that you know has been subjected to. Should you require assistance in this regard then etc.

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Latest News From Lee 09th October 2019 – Brydens Lawyers Flames Community Program

As part of Brydens Lawyers’ commitment to fostering elite sport starting at the grass roots level, I am pleased to announce our partnership with Sydney University for the purpose of developing and implementing a program to introduce basketball to those members of our community who may not have the opportunity to avail themselves of such a wonderful game.
The proposal was presented to us with such enthusiasm, particularly by Karen Dalton who has been the driving force behind this initiative, that the invitation to share the Sydney Uni Flames vision of empowering young women in the community spoke to our commitment to corporate responsibility, that is, giving back to the community that has given us so much.
The program will provide an opportunity for young and up and coming basketballers to be exposed to elite training programs and athletes for the purpose of promoting the sport particularly in rural areas. This Community program is yet another manifestation of the commitment that both Brydens Lawyers and Sydney University have made to the promotion of women’s sport from the grass roots to the elite level. The University, and Karen Dalton, are to be commended for this initiative.
Brydens Lawyers are honoured and humbled to have been considered for the naming rights sponsorship of such a wonderful program.

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Question of the week- FRIDAY 4TH OCTOBER – I have been wrongfully accused of assault – what are my next steps?

Question: I have been wrongfully accused of assault – What are my next steps?”
Any criminal law matter can prove to be a very distressing time. This is particularly so if you have been wrongfully accused of a crime.
Alternatively you may be accused of crimes that you did commit if you come to the attention of the places are personages relational crime then there are number things with which you should be aware they include one you can be written by the police was being questioned you can be required to question the two if arrested and generally speaking our advice is not to partake in an interview with the please their advances in agreeing to partake in any view will deplete The reasons for same can be many and varied. For example, perhaps you have been mistakenly identified arising from an innocent error made on the part of a witness. Alternatively, you may have been deliberately and maliciously falsely accused of a crime that you did not commit.
If you have come to the attention of the police as a person of interest in relation to a crime then there are a number of things of which you should be aware. They include:

You cannot be arrested by the police for the purpose of being questioned and you cannot be required to attend a police station for questioning unless you have been arrested.
If arrested then, generally speaking, our advice is not to partake in an interview with the police. There are advantages and disadvantages in agreeing to partake in an interview, however, in the absence of legal advice and representation, partaking in an interview could prove detrimental.
If you are charged with a crime then you require expert legal advice and representation. Contact must be made with your lawyer as soon as possible.
Depending on the nature of the charge bail will generally be granted.

With expert legal advice and representation you will be provided with the best legal defence of the charges. All necessary evidentiary material will be collated. Witnesses will be interviewed. Experts may need to be retained. Subject to the results of our enquiries it maybe open to us to make representations to the police, or director of public prosecutions, to have the charges dismissed if there is overwhelming and cogent evidence available to establish that a conviction is unlikely.
Brydens Lawyers has a specialist Criminal Law Division available to assist all clients with respect to any criminal offences in any jurisdiction. If you require the advice and representation of an expert criminal lawyer then do not hesitate to contact Brydens Lawyers.

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West Tigers & Beyond Featuring Robbie Farah

Welcome to LawPod by Brydens Lawyers!
In this week’s edition of LawPod- Robbie Farah of the Wests Tigers and Two4Seven Events joins us to reflect upon his NRL career and retirement, discuss his thoughts on the current path of the Wests Tigers, and to talk about the atmosphere of that final Leichhardt game.
Take a listen!
If you have a topic you would like to hear discussed- please send it through to: [email protected].

Download the podcast

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Question of the week- FRIDAY 27TH SEPTEMBER – What is failure to obtain informed consent?

Question: What is “failure to obtain informed consent?”
Many of us have heard the term “informed consent” particularly where it pertains to the undertaking of a medical procedure. The law requires that all medical and other healthcare professionals obtain informed consent from the patient before any treatment is undertaken. If the medical practitioner fails to obtain informed consent prior to the performance of any procedure, the medical practitioner could be held liable in negligence if there is an outcome from the procedure of which the patient should have been properly warned and, had the patient been warned, not have undertaken the procedure or treatment.
It can be a somewhat complex area of the law and therefore the assistance of an experienced and skilled medical negligence lawyer is required.
However, simply put, the law imposes upon medical practitioners a duty of care which includes the duty to properly inform a patient of all the risks or adverse outcomes that are readily recognised as being inherent in the proposed treatment or procedure. It is only when the patient has been properly advised can they give “informed consent”.
If “informed consent” is not given and then one of the adverse outcomes or risks eventuates, the patient can assert that had they been properly advised they would not have undertaken the procedure. Such an assertion is strengthened when dealing, in particular, with elective medical procedures or treatment. However, in cases where the medical treatment is required there may be instances where it is difficult to accept an assertion by a patient that had they been properly advised they would have elected not to have undertaken the procedure or treatment.
Every case must be dealt with on its own facts.
If you have any concerns with respect to any medical treatment or procedure undertaken and wish to enquire as to whether an adverse outcome arose as a result of any negligence, then contact Brydens Lawyers without delay to determine what if any rights may be available to you.

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Latest News From Lee 27th September 2019 – NRMA: CTP INSURERS

I feel compelled to share with you a recent experience, a most unfortunate one, that I had with the NRMA.
I act on behalf of the father and stepmother of a 17 year old boy who was tragically killed in a motor vehicle accident. NRMA is the CTP insurer for the vehicle responsible for the accident and has, quite properly, admitted “breach of duty of care” on the part of its insured driver. That is, NRMA has admitted that the accident was the fault of its insured driver.
All that remains therefore is an assessment of the damages or compensation to which my clients are entitled.
In support of the claim we have commissioned a medical report on behalf of my clients which establishes, in my view conclusively, that my clients have suffered terribly from an emotional and psychological perspective, in response to the loss of their son.
In response NRMA commission its own medical report which, not surprisingly, found that there was nothing wrong with my clients.
To resolve this dispute my clients have undergone independent medical assessment by a specialist appointed by the State Insurance Regulatory Authority through its medical assessment service.  That opinion confirms that my clients have suffered very significantly on an emotional and psychological level such that they are entitled to receive non—economic loss damages. That is damages for their pain and suffering.
Who amongst us would not have expected the parents of a 17 year old who was tragically killed in such circumstances not to have suffered significantly on an emotional and psychological level?
Although the NRMA may have concerns about accepting the opinion of a medical expert
which has been commissioned by me on behalf of my clients, you would think that they would be prepared to accept the determination of an independent medical assessor.
You would be wrong.
NRMA has now challenged the findings of the independent medical assessor. NRMA is contending that the independent medical assessor or is wrong and that by reason of the subject accident my clients have suffered “no injury, loss or damage”
Please let that sink in for a moment.
NRMA has positively asserted that the tragic death of my clients’ 17 year old son constitutes “no loss”.
This is an example of the lack of empathy or sympathy which is often displayed by CTP insurers such as NRMA when dealing with persons who make a claim for injury, loss or damage arising out of a motor vehicle accident of which they are the innocent victim.  CTP insurers are more than happy to readily accept the exorbitant premiums they charge on CTP insurance policies but when one has the audacity to make a claim against a CTP policy, the CTP insurer will do all that is available to it, take every forensic and tactical advantage, to diminish the claim.
The example however that I have given above has struck me as perhaps the most egregious display of contempt displayed by a CTP insurer in my 30 years of practice. Never would I have ever contemplated that a CTP insurer was capable of arguing that the tragic loss of a 17 year old son constituted “no loss” for the parents.
No doubt if NRMA had an opportunity to respond it would say that it was making the submission on purely legal grounds. That is, my clients have suffered “no injury, loss or damage” arising from the subject accident as defined under the Motor Accidents Compensation Act 1999.
However, when it comes to the loss of a child in such tragic circumstances, no legalese or spin can detract from the fact that NRMA, in its clinical and callous approach to the assessment of these claims, is doing all that it can to diminish the compensation to which my clients would otherwise be entitled.
Have they not suffered enough?

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The Management of Affairs- Featuring Nicole Jirathammakul

Welcome to LawPod by Brydens Lawyers!
In this podcast series- join our firm Principal, Lee Hagipantelis, as each week he delves into a different topic with a featured guest.
For our pilot episode, Lee is joined by Nicole Jirathammakul (a Family and Estates solicitor of the firm); as they discuss the management of affairs, and the overall legalities surrounding wills.
Take a listen!
If you have a topic you would like to hear discussed- please send it through to: [email protected].

Download the podcast

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Latest News From Lee 19th September 2019 – 1969 Balmain Tigers 50 Th Anniversary

Recently I had the honour of being involved with the reunion of the 1969 Balmain Premiership winning team.
Past players from all over New South Wales gathered, many of them with their wives, to
celebrate the 1969 Grand Final win. The 69ers, as they are affectionately known, attended Wests Tigers Captain’s Run on Saturday, 7 September. On Sunday, 8 September the 69ers were presented to a capacity crowd at Leichardt Oval. On Monday, 9 September the 69ers were fêted to a luncheon hosted by the SCG Trust in the Members Pavilion to celebrate their historic win. On the evening of Tuesday, 10 September representatives of the 69ers attended the Wests Tigers Kelly-Barnes Awards at Le Montage where they were recognised and honoured by all present.
It is only when we appreciate our history that we can fully understand the present and look forward to the future. Only when you know where you have been will you know where you are going.
The Wests Tigers has quite properly acknowledged the 1969 Balmain Premiership winning team as part of its history. That team, along with the great Western Suburbs Magpies over the years, have provided the blood, sweat and tears that has gone into the formation of the Wests Tigers Club.
I offer my sincerest appreciation to the 69ers for the opportunity of being a part of their 50th anniversary celebration.
Cheers to the 69ers!

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Question of the week- FRIDAY 20TH SEPTEMBER- Crystalline Silica

Question: What are the legalities surrounding Crystalline Silica?
Many of us however may not be aware that Crystalline Silica, a substance found in most rocks, sand and clay as well as in products such as bricks, concrete, tile and composite stone, can be just as hazardous to one’s health.
To be completed

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