When people are buying and selling real property, they often ask, “how long will the conveyancing process take?”.  The answer is similar to the length of the proverbial piece of string. Like a piece of string, however, there is an identifiable beginning and an end.
After a buyer has been found for a property, Contracts for the Sale of Land are negotiated and exchanged between the Purchaser (buyer) and the Vendor (seller). This is the beginning of the conveyancing process. The conveyancing process is finished at settlement which is when all contractual obligations between the purchaser and the vendor have been completed.
Exchange
Exchanging contracts is an important part of the conveyancing process. It is where the deposit is confirmed to be held and the contract signed by the Vendor and the contract signed by the Purchaser are checked page by page to ensure they match, and are then quite literally swapped over. After exchange the Vendor is holding the Purchaser’s signed contract and the Purchaser is holding the Vendor’s signed contract. The contracts are then dated and the terms of the contract become legally binding on the parties. The date of exchange is the beginning of the contract and is the date from which all of the time limits (cooling off period, finance approval, adjustments, settlement etc) are calculated.
The period after exchange is where a lot happens in a short period of time. The ordinary contract period for residential conveyances is 42 days (or 6 weeks). During this time bank documents such as loan and mortgage documents, discharge authorities and many other documents will be executed. It is also during this time that your Solicitor will be ensuring that you are complying with your obligations under the Contract and preparing for settlement.  This involves working out the final purchase price, ensuring you will receive good title to the property and liaising with your bank to ensure that they are ready for settlement.
Settlement
This is the end of the contract period where the balance of the purchase price is paid by the Purchaser to the Vendor, and the title to the property changes hands from the Vendor to the Purchaser.  Sometimes unforeseen events occur which is why proper planning and experienced legal representation is crucial. Common issues that arise are prior to settlement are damage to the property after contracts were exchanged and insufficient cash funds to complete the purchase. Our experienced property law Solicitors have seen these and many more issues arise, but there is often a quick and easy solution available.
Property settlements are now largely conducted online and is known in general terms as electronic conveyancing. There is an electronic workspace set up and instead of all the parties gathering around a table to swap physical documents and bank cheques, all the parties now meet ‘electronically’. The property title and the purchase monies are transferred are then transferred online.  Online settlement means that there settlements can be conducted quickly and accurately. For Vendors, the sale proceeds are generally transferred directly into their bank account following settlement so there is no more waiting for a cheque to be banked and cleared!
If you need assistance buying or selling real property, do not hesitate to contact Turner Freeman Lawyers on 13 43 63 or via our online enquiry form.
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The Partners take pleasure in advising all staff of the following appointments:
Partner
The Partners are pleased to announce that Dante Gloria of the Adelaide office had been promoted to the position of Partner.
Dante has been with the Firm since June 2011. He was promoted to the position of Associate in 2014. In 2017 he was appointed a Senior Associate. He now completes the transition to Partner. Dante has a very significant hearing loss and workers compensation practice in South Australia. Indeed, he has the largest hearing loss practice in South Australia.
Dante works as part of a team now growing the general personal injury practice by increasing our presence in the workers compensation field.
SENIOR ASSOCIATES
Luke Power
Luke commenced employment at our Parramatta office as Law Clerk in February 2015. He progressed to Graduate Lawyer in June 2015, was appointed an Associate on 1 July 2018 and now takes the next step to Senior Associate.
Luke has one of the largest mixed personal injury practices within our NSW offices. That practice includes workers compensation claims, WID claims, TPD claims, public liability claims, motor vehicle accident claims and occupiers liability claims.
Basema Elmasri
Basema was admitted to practice as solicitor in NSW on 17 February 2012 and commenced her work as a solicitor in August 2012. She joined our Firm in January 2018 in the position of Associate.
Basema also has a very substantial general personal injury practice at Parramatta. She has a large number of NSW workers compensation claims, WID claims, public liability and TPD claims.  Significantly she has developed a substantial Comcare practice, a very difficult area of personal injury law.
Kyle McCabe
Kyle practices at our Penrith office. He was employed by Turner Freeman in November 2014 and was admitted to practice as a solicitor in NSW on 8 December 2014. He was appointed to the position of Associate in June 2018. He now transitions to the role of Senior Associate.
The wills and estates and property practice at Penrith also includes our small branch office at Windsor which services our very substantial Hawkesbury client base.
Kyle has assumed a very significant role within the Penrith office in the area of wills and estates and property law.
Alice Church
Alice joined our Adelaide office in May 2016 as an Associate. She has now been with us for about four years with an additional three and a half years’ of prior experience in general personal injury law.
Alice manages a diverse general personal injury practice including motor vehicle accident work, public liability work, workers compensation claims, industrial deafness and TPD claims and significantly medical negligence law.
Her development of a medical negligence practice in Adelaide is of particular significance.
Emma Jahnke
Emma commenced employment with us in our Brisbane dust diseases team working under Thady’s supervision in January 2015. She was admitted as a solicitor on 1 July 2015. She was appointed an Associate on 1 July 2018 and has continued to work in the Brisbane dust diseases team.
The Brisbane dust diseases team is the largest dust diseases practice group within Turner Freeman and Emma plays a significant role in that practice.
In 2019 Emma was one of only 18 practitioners Australia wide and one of only two practitioners in QLD to be named in the Doyles Guide for Injury & Compensation Law Rising Stars. She received recognition for her work and expertise in personal injury practice, specifically dust diseases litigation.
Emma’s work involves representing clients in complex statutory and common law claims in multiple jurisdictions including QLD, NSW, SA, VIC, TAS and even New Zealand.
Alicia Wong
Alicia commenced employment with us on 18 October 2017 working with Sally Gleeson in our Sydney office in the medical negligence team.
Alicia was appointed to the position of Associate on 30 June 2018.
Since joining the Firm Alicia has developed a very substantial medical law practice in Sydney, working with a high level of autonomy in difficult and complex medical negligence claims.
Of particular significance is her contribution to the TCI Class Action.  The TCI class action is the first personal injury class action that our Firm has ever conducted. There are now over 900 group members, women injured, some significantly, during the course of breast surgery.  The class action is without doubt the largest single piece of personal injury litigation that the Firm has ever been involved in.
Alexander Munro
Alex joined our Newcastle office on 18 May 2015 as an employed solicitor. His mission at that time was to develop  a wills and estates practice from within our Hunter Valley client base. There was no practice there to speak of when he joined the Firm.
Alex was promoted to the position of Associate on 1 July 2017.
Alex is now responsible for wills and estates and property law work in both our Newcastle and Gloucester offices. Since Armstrongs merged their Toronto office with us he has also had a role in overseeing the legal work in the estates area at our Toronto office.
As the holder of a Masters of Applied Laws (Wills and Estates) Alex brings a high level academic/intellectual background to the practice of law in his chosen area.  It goes without saying that he is highly regarded in the Hunter Valley as a significant legal practitioner within the practice area of Wills and Estates.
Jacqueline Hughes
Jacqueline Hughes is an outstanding young practitioner who works in the dust diseases team of the Brisbane office.
Jacqueline commenced her employment with us as a Law Graduate in August 2017 at the Ipswich office. She was subsequently appointed a solicitor of the Supreme Court of QLD in October 2017.
Since commencing her employment with us Jacqueline has worked in the Ipswich office doing general personal injury work, then the Brisbane dust diseases team before switching back to assist us at Ipswich and then switching back again to Brisbane in July 2019. Since returning to the Brisbane office she has specialised in dust diseases litigation working with Thady and Emma.
Jacqueline has a substantial dust diseases practice and is working with Darren Whitelegg to build a practice at our Toowoomba office.
ASSOCIATES
Stephen Matthews
Stephen was admitted as a solicitor on 4 July 2014 and has practiced exclusively in personal injury litigation since that date. He joined Turner Freeman at the Parramatta office in January 2019 and is currently a member of Fady Dous’ significant personal injury practice group.
Stephen’s expertise is CTP work, a practice area that has undergone radical reform in recent years. He has accordingly taken on other personal injury work including public liability, workers compensation, WID claims, occupiers liability and TPD claims. Stephen is an important member of the Parramatta personal injury group.
Joelle Matar
Joelle was admitted to practice in the Supreme Court of NSW in February 2010. She commenced work with us at the Parramatta office in February 2019.
Joelle is an accredited personal injury specialist with very high level knowledge in complex, difficult medical negligence litigation. She has been working closely with Ann-Maree Pascoli to develop a western Sydney medical negligence practice group at the Parramatta office and has commenced a number of high value medical negligence claims including a number of birth trauma claims.
David Pink
David commenced work with us as Law Clerk and Paralegal on 4 April 2014. He was admitted to practice in the Supreme Court of NSW on 22 June 2018 and transferred from our Sydney office the Parramatta office in April 2018.
Since arriving at Parramatta David has taken on work in a variety of areas including employment law work, industrial work, defamation work, Local Government work and asbestos litigation. He has probably the largest discrimination claim with a trial date pending in the Federal Court that we have ever conducted.
David has an interest in employment and industrial law. He accordingly becomes a key practitioner as we attempt to re-establish our market position in those practice areas. As a Labor Law Firm with a long and proud history of acting for trade unions and working people we continue to practice in those areas. It is part of our heritage and culture.
Dennis Kim
Dennis is employed in our Sydney office.
Dennis is a high quality, personal injury practitioner who has provided much needed stability for us in Sydney in the general personal injury practice group. He has a very large practice and continues to grow and market his practice. He is of Korean background, speaks the language fluently, and aims to expand his practice into the Korean community in Sydney.
Musu Muliaga
Musu commenced with Turner Freeman as a Paralegal in August 2015. He will shorty celebrate his fifth anniversary with the Firm. He completed his Degree in July 2017 and was admitted to practice in QLD in October 2019.
Musu is of Samoan background, probably one of only half a dozen Samoan lawyers in Australia. He is deeply embedded in his community and the guiding principle by which he practices law derives from a Samoan proverb “The pathway to leadership is through service”. Musu is deeply committed to serving the people of the Logan area where he practices and in particular his own community. He has established a very significant general personal injury practice at Logan which includes workers compensation, CTP, public liability, common law claims, dependency claims, TPD claims and income protection claims.
Kerry Gale
Kerry commenced work with us at Parramatta office  on 27 October 2014. She left the Firm to start a period of maternity leave and when she returned she relocated to our Penrith office.
Kerry has an interest in wills and estates law and property law. Working at the Penrith office she shares these practice areas with Kyle McCabe and has now developed a TPD practice.
The Penrith office has the largest property and wills and estates practice within Turner Freeman.
Jessica Grant-Nilon
Jessica commenced work with us in April 2016 as a Paralegal. She was admitted to practice in March 2017. She has worked with us as a lawyer in the general personal injury department under the supervision of Gerard Morson at Penrith since that date.
Jessica now has a very substantial general personal injury practice with a very large number of statutory workers compensation, TPD and common law files.
Jade Bowdler
Jade is a young practitioner who works in our Newcastle office in the general personal injury practice group under the supervision of Ben Grosse.
Jade started with us as a Law Clerk in August 2014. She was admitted as a Solicitor in February 2017. Her entire career to date has been with us at the Newcastle office.
Jade carries a very substantial statutory workers compensation and TPD file load in the Newcastle office, one of the bigger statutory workers compensation practices in Turner Freeman.
Lidia Monteverdi
Lidia was admitted to practice in February 2015 and joined us in August 2018. Since joining us, as she has developed the medical negligence practice and she has taken on a variety of general personal injury work including CTP work, public liability work, institutional abuse work and WID claims.
With the merger of Armstrong Solicitors she has also assumed conduct of the medical negligence matters that were previously in the Toronto office.
The Partners congratulate this very large group of young practitioners who have been rewarded with promotions reflecting the hard work that they have done, the contribution that they have made to the Firm and the dedication that they have shown to the Firm and its clients.
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Doctors at the centre of a plastic surgery class action lawsuit have been named publicly for the first time. They’re being sued by almost a thousand women who claim they suffered from botched procedures. Sally Gleeson, Partner in our Sydney office was featured in last night’s new story on Channel 7 regarding the current TCI class action.

Doctors at centre of Cosmetic Institute class action publicly named
Doctors at the centre of a plastic surgery class action lawsuit have been named publicly for the first time.They’re being sued by almost a thousand women who claim they suffered from botched procedures.www.7NEWS.com.au#CosmeticInstitute #7NEWS
Posted by 7NEWS Sydney on Thursday, 2 July 2020

Transcript of the video is below:
Reporter:– “One size does not fit all. A horror story shared by almost a thousand women suing the doctors they say disfigured them.”
Sarah Jaramenko:– “Being left botched and with an implant that is basically sitting in my armpit.”
Reporter:- “A class action law suit against the now closed down Cosmetic Institute, naming the so called award winning surgeons who it’s claimed performed breast implant surgeries with as little as a weekends training.”
Lorraine Long (Medical Error Action Group):– “You have an open trust with your doctor and you expect it to be respected.”
Reporter:- “10 of 12 doctors are alleged to be registered medical practitioners without specialist qualifications, training or experience. These are their names including Napoleon Chui, Victor Lee, Pedro Valenta, Dr Eddy Dona allegedly trained them to performthe operations. From the lawyer representing the women: “we are alleging that all the defendants departed from the proper standards and put patients at risk.””
Dr Danielle McMullen (AMA NSW):- “Surgeon and cosmetic surgeon aren’t protected terms, anyone could call themselves those things.”
Reporter:- “The Australian Medical Association has warned even breast operations performed by the very best surgeons could result in complications. There are some inherent risks. Though there is no excuse for malpractice.”
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Statutory substitution is a complex way of saying that where a parent has made a will giving a gift to a child, and that child has died before the parent, that there are laws that can operate to save that gift from failing.
The relevant sections of law are complex and will operate depending upon the wording in the will, any survivorship periods and the unique circumstances of the matter.
What happens when an original beneficiary dies leaving surviving children?
Section 41 of the Succession Act (NSW) 2006 states that where a testator makes a disposition (a gift) to their children (original beneficiary) under a will, and one or more pre-deceases the testator but is survived by their own children, the share that the original beneficiary would have received will instead be given, in equal parts, to their surviving children (the grandchildren of the deceased). This is a simple example of statutory substitution which in effect substitutes the grandchildren as beneficiaries for the deceased’s child. This can assist ensure that gifts to children who have not survived to receive an interest in their parent’s estate can still have their share pass to their own children.
Statutory substitution will not take effect if a contrary intention appears in the Will. Usually, a Will needs to be drafted with specific wording to exclude the operation of any statutory survivorship provisions.
What assets and gifts can it apply to?
Statutory substitution only applies to assets that fall within the deceased estate asset pool. Property held with another person as joint tenants is subject to the right of survivorship and does not automatically form part of the estate to which substitution could apply. Similarly, assets held in trusts like superannuation are not often subject to statutory substitution provisions.
Case study
Alice makes a Will when she is 80 years of age leaving the whole of her estate to her 2 children, Bob and Martha. Bob and Martha are each alive when Alice makes her will. Sadly, Martha dies when Alice is 85 years of age. Martha had 2 children of her own, Lucian and Salvador. Alice still wants her estate to be divided equally between Bob’s side of the family and Martha’s side of the family.
Alice dies aged 90 years not having updated her Will. Luckily, Alice had made her Will with a solicitor whom had advised her about statutory survivorship and statutory substitution. Despite Martha having died before Alice, and there being no mention of Lucian and Salvador in Alice’s Will, Alice’s estate is still able to be distributed half to Bob, and the other half to Martha’s children, Lucian and Salvador. The reason this is possible is because the Will was drafted carefully to take account of various contingencies and because of the application of the statutory substitution rules.
Drafting of Wills
It is important your Will clearly states your testamentary intentions. Leaving wording and gifts open to interpretation can lead to the estate incurring additional legal costs or testamentary intentions not being able to be carried out. This is an issue which often arises in “Do It Yourself Will Kits” whereby vague or conflicting language can leave the estate unable to be administered correctly.
It is important to instruct an experienced solicitor to ensure your testamentary wishes are adequately protected and recorded.
Get in touch with us
If you would like assistance preparing your Will, or you would like to discuss any concerns you may have regarding Will & Estate matters, do not hesitate to contact Turner Freeman Lawyers on 13 43 63 or via our online enquiry form.
The post What is statutory substitution? appeared first on Turner Freeman Lawyers.

The most common way of contesting a Will is by bringing a Family Provision Application (FPA) against a deceased estate. It is an Application where by a person seeks an Order from the court for provision (money from the estate).
To be successful, it must be shown that adequate provision has not been made from the estate for the person/s proper maintenance and support from the deceased’s person’s estate.
Who is eligible to bring a Family Provision Application?
Section 41 of the Succession Act 1981 (Qld) provides that a deceased’s persons spouse, child or dependent can make an application to the court for adequate provision to be made from the estate of the deceased person for his/her proper maintenance and support.
A “spouse” includes a husband or wife, a de facto partner. A deceased’s dependent former husband or wife or a civil partner or a former dependent spouse.
A “child” means, to a deceased persons, any child, step-child or adopted child of that person.
A “dependent” means to a deceased person, any person who is wholly and substantial maintained and supported (otherwise then full valuable consideration) by that deceased person at the time of the person’s death being an:

A parent of that deceased person;
A parent of the surviving child under the age of 18 years of the deceased person; or
A person under the age of 18 years.

How does the Court decide if the Family Provision Application will be successful?
The legal test, followed by the Court in Family Provision Applications is a two stage process as follows:
1.The first stage requires the court to determine whether the person making the Application has been left with adequate provision for his/her proper maintenance and support.
The second stage only arises if the Court determines that the person making the Application has indeed been left without adequate provision.
If the Court determines that adequate provision has been made for the proper maintenance and support of the person making the Application, the Court will dismiss the Application and further provision (money) will not be given.
2.The second stage requires the court to determine what provision (money) ought to be made out of the deceased’s estate for the person making the Application.
It is up to the Court’s discretion as to how much (if any) money is to be given to the person making the Application and each case is decided on its own merits.  Strict time limits of six (6) months and nine (9) months from the date of death of the deceased apply. Accordingly it is important that specialist legal advice is obtained as soon as possible after the death.
Get in touch with us
If you have any questions, or wish to discuss contesting or defending a Will, please contact Turner Freeman Lawyers’ Wills and Estates Team on 07 3025 9000. Jenna Hutchinson and Laura Hagan practise exclusively in Succession Law and would be happy to have a chat with you.
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Sally Gleeson, Partner and medical negligence expert in our Sydney office appeared in the Daily Telegraph today. Original article below, written by Janet Fife-Yeomans.
General doctors were allowed to perform breast implant operations after receiving as little as one full weekend of training in cosmetic surgery, it has been alleged.
Ten of the 12 doctors who operated at The Cosmetic Institute clinics have been accused in a class action of having little actual training in the field.
The doctors, ad­vertised by the clinics as “award-winning surgeons” who were only “registered medical practitioners without any specialist qualifications, training or experience”, it is claimed.
Those 10 doctors and an 11th, Dr James Kenny, the only one who was a general surgeon although allegedly not a specialist, are now being sued personally by almost 1000 women in a class action against the clinics and their surgical director Dr Eddy Dona for medical negligence after the insurers for the clinics cancelled their cover.
They are named in an amended statement of claim lodged with the NSW Su­preme Court along with Dr Dona, who it is alleged trained the doctors to perform one-size fits all boob jobs at the clinics.
The lawyer for the women, Turner Freeman partner Sally Gleeson, said most of the doctors “did not undergo any surgical training of substance.”
Dr Dona was the only one who was an accredited plastic surgeon.
Court documents revealed each of the 11 other doctors – named as Dr Niroshan Sivathasan, Dr Van Nguyen, Dr Victor Lee, Dr Chi Vien Duong, Dr Ahn Tang, Dr Napoleon Chiu, Dr Daniel Kwok, Dr Pedro Valenta, Dr Farheen Ali and Dr Sri Darshn, as well Dr Kenny – paid the clinics $500,000 over three years to perform the breast augmentation surgeries, which cost a standard $5990 for which they re­ceived a proportion of the cost and were still able to make a profit.
The case was lodged after Amy Rickhuss, 24, had to be resuscitated on the operating table after being operated on by Dr Sivathasan in January 2015.
It is still legal for anyone with a standard medical degree to perform cosmetic surgical procedures in Australia but the women claim the clinics breached consumer law through false and misleading advertising about experience the doctors didn’t have.
A defence to the claims has not yet been filed.
If you have suffered as a result of cosmetic surgery get in touch with us. We are experts in the area of medical negligence including cosmetic surgery and have a dedicated team of expert lawyers lead by Sally Gleeson who, for 5 years in a row has been named one of the recommended and leading medical negligence compensation lawyers in New South Wales.
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Sally Gleeson, Partner and medical negligence expert in our Sydney office appeared in the Daily Telegraph today. Original article below, written by Janet Fife-Yeomans.
Hundreds of women who had “one size fits all” boob jobs at a chain of scandal-plagued cosmetic clinics have been abandoned by medical insurers who have pulled their insurance cover.
The lawyer for the almost 1000 women involved in the country’s first class action against the booming cosmetic surgery industry said all patients should be able to go to health practitioners and clinics knowing that they are covered by medical malpractice insurance.
“This is a gross injustice. The insurers have virtually pulled the plug,” Turner Freeman partner Sally Gleeson said yesterday.
“All my clients are really distressed.”
The Cosmetic Institute clinics have been accused in the lawsuit of being run like a “fast food franchise” allegedly giving the women the same type of implants in identical operations regardless of their size or breast shape. Many of the women were able to pay the operation off at $5 a day.
Two of the women, Amy Rickhuss and a 42-year-old, were rushed to hospital after they had to be resuscitated on the operating table.
Both Allied World Insurance and Newline Australia Insurance did not return requests for comment.
If you have suffered as a result of cosmetic surgery get in touch with us. We are experts in the area of medical negligence including cosmetic surgery and have a dedicated team of expert lawyers lead by Sally Gleeson who, for 5 years in a row has been named one of the recommended and leading medical negligence compensation lawyers in New South Wales.
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Did you cease work due to injury and/or illness some time ago? You may still be eligible to claim through your superannuation, even if your superannuation claim is now closed or your insurance has since lapsed.
Total and Permanent Disablement (TPD) insurance is a common type of insurance cover that many of us hold within our superannuation. This cover is designed to compensate the member if they are no longer able to work as a result of injury and/or illness.
These injuries and/or illnesses do not need to necessarily relate to employment, so that a diagnosis of an unrelated illness such as cancer or multiple sclerosis or an injury outside of work could potentially entitle a member to claim against their insurance.
Each superannuation fund has a unique definition of TPD against which a claim is assessed, including what is referred to as the “date of disablement”. Whilst each fund is subtly different the general position is that the date that is relevant for a claim for TPD insurance is the date that the member ceased work due to injury or illness.
This means that the insurance cover that existed on that date is the insurance cover against which the claim is made brought. This means that if your superannuation account has closed and/or your insurance has lapsed since the date you ceased work you may still be entitled to claim against any insurance that existed at the relevant date.
If you have suffered an injury or illness that has put you out of employment, irrespective of how many years ago, it is always advisable to make enquiries as to your superannuation insurance options. You may be eligible to pursue a TPD claim that you didn’t realise existed.
We recommend that these enquiries be carried out as a matter of priority as some superannuation funds now place limitations on when these applications for benefits need to be submitted.
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Hochbaum and Whitton Ruling – Weekly payments beyond 260 weeks
The Court of Appeal (Brereton & White JJA & Simpson AJA) handed down its decision in the matters of Hochbaum v RSM Building Services Pty Ltd and Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113.
Background
The importance of this decision concerns weekly compensation payments payable to injured workers beyond the 260 week restriction. In 2012, amendments replaced s 39 (1) of the Workers Compensation Act 1987 NSW which states that a worker has no entitlement to weekly compensation payments after 260 weeks from the date of injury, whether or not consecutive payments have been made to the injured worker by the workers compensation insurer. The only exception to this rule is if the workers injury results in permanent impairment of greater than 20% whole person impairment. Then, and only then, are they entitled to weekly compensation payments beyond 260 weeks pursuant to s 39 (2) of the Workers Compensation Act 1987.
It was unsettled law as to whether an injured worker was entitled to back payment when and if they were assessed as suffering 21% whole person impairment after the expiration of their 260 week entitlement.
The judgement in Hobachaum is welcomed by injured workers. In each case, the injured workers weekly compensation payments had ceased at the 260 week cut off period and resumed from the date of the formal assessment of permanent impairment which found that they had permanent impairment resulting from their injuries of greater than 20% whole person impairment.
The insurer in each case declined to pay weekly compensation payments from the date their payments ceased up until the date of the formal assessment was issued, otherwise known as the back payment.
In an important ruling, the Court of Appeal held that weekly compensation payments should have recommenced from the date of when weekly payments ceased at the 260 week period.
Importance of the Ruling
The way in which the Court of Appeal construed the wording of the legislation of section 39 of the Workers Compensation Act 1987 was crucial when ruling on the matter. When construing section 39, the 260-week limit never applies to a worker whose degree of permanent impairment resulting from the work injury exceeds 20%, regardless of when that threshold is crossed, and regardless of whether or when it is formally assessed as having been crossed.
The importance for injured workers that flows from the judgement is that if the client has:

Been assessed at greater than 20% whole person impairment, whether or not it is an assessment that has come from an Approved Medical Specialist (AMS), or
If it is likely that the injured worker will exceed the relevant threshold of greater than 20% whole person impairment, or
If the workers permanent impairment is not ascertainable as it is deemed that the worker has not attained a level of maximum medical improvement, then

the worker should apply for reinstatement of weekly compensation payments if the insurer has ceased payments pursuant to Section 39 (1) of the Workers Compensation Act 1987.
Advice for Injured Workers
Injured workers whose claims were previously adversely impacted are encouraged to seek legal advice to review their claim.
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Survivors who have pursued criminal claims against their abusers have faced a number of significant legal hurdles to date.
In August 2017, the Royal Commission into Institutional Responses into Childhood Sexual Abuse made a number of recommendations to address those hurdles. The speed in which those recommendations have been adopted has been, quite frankly, disappointing.
Last year, Judge McGill SC, a then outgoing Judge of the District Court of Queensland had this to say about his time as the presiding judge in a number of criminal trials[1]:

that it is a terrible rule that in most cases, a sex offender accused of assaulting multiple victims should be tried one case at a time
that the worst part of his job was having to watch defendants acquitted because the jury did not know what he knew, that there were to or four or a dozen or more other victims waiting in the wings who could say, but were not allowed to say, “he did it to me too”
That the major problem was that most paedophiles do not confine themselves to one victim, at least when there is no prompt complaint from the first
That if there are two or more children in a household, for a jury to be told, in effect, that only one was abused paints a misleading picture

The NSW Parliament has recently passed the Evidence Amendment (Tendency and Coincidence) Act 2020 to address some of these hurdles by creating a special set of considerations in criminal trials relating to child sexual assault matters. Despite the delay, it is encouraging to see progress on this front and we expect that other states will pass similar legislation in the future.
A number of positive changes have been made since the conclusion of the Royal Commission into Institutional Responses into Childhood Sexual Abuse:

Institutions now have a duty to take all reasonable steps to prevent the abuse of a child by a person associated with the institution while the child is under the care, supervision, control or authority of that institution
A National Redress Scheme has been established to provide Redress to survivors of sexual abuse
There are no longer any time-limits restricting a civil claim for abuse of a child under the age of 18
Legislation has been passed to negate the Ellis Defence, a defence which previously allowed institutions to escape liability on the basis that there was no legal entity to be sued

Additional Resources
[1] https://www.brisbanetimes.com.au/national/queensland/terrible-rule-departing-judge-calls-for-change-in-final-speech-20191210-p53ild.html
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A family provision claim is an application to the Court where a person seeks a share, or greater share of an estate of someone that has died.
You may have heard about challenges to Wills in the news recently. Both of the estates of Bob Hawke, former Prime Minister, and the famous Racehorse trainer Bart Cummings have been subject to family provision claims by children who have been unhappy with how they were treated in the last will.
Who can make a claim and what is the process?
At Turner Freeman Lawyers, we often get asked the questions, who can make a family provision claim and what does the process involve?
Any “eligible person” can make a claim, most often a spouse or child of the deceased person, but the definition of eligible person also includes any person who has lived with and been dependent on the person that has passed away.
Once someone is considered an eligible person, they must then satisfy the Court of two key factors. Firstly, that they have financial need, normally this should be a current and pressing need, such as repayments on a mortgage, but can also include financial need in the future, such as having sufficient superannuation in retirement or a contingency fund for medical expenses. Secondly, a person must show that they have received inadequate provision out of a deceased person’s estate. This will typically mean being left out of a will entirely but can extend to a situation where a person has received only a small or very small share of an estate.
Whilst the above two factors are a primary consideration for the Court, a range of other factors are taken into account in determining a claim, including the size of an estate, a claimant’s relationship with the deceased person, including any estrangement, as well as any provision made for that person during the deceased person’s lifetime.
It is important to note that a person has only 12 months from the date of death to make a claim, and otherwise requires leave of the Court to make their claim.
The process of making a family provision claim begins with an application to the Supreme Court.
Once a claim is filed with the Court, accompanied by affidavit evidence which details all of the relevant factors, such as financial circumstances, relationship with the deceased, amongst other things, the Court then refers all claims to mediation where it is hoped that the parties (generally the claimant and the executor) will reach a settlement which effectively brings an end to the claim. Approximately three-quarters of all claims filed with the Court resolve at this compulsory mediation stage.
If a claim doesn’t settle at a mediation, it will then be prepared for a final contested hearing before a Judge of the Supreme Court. The parties are given an opportunity to reply to affidavit evidence from the opposing side before the hearing, as well as a chance to update their affidavit evidence. It is important to note that only about 5% of all claims filed with the Court (of approximately 1,000 each year) get to the point of a contested court hearing. All of the remaining matters are settled at mediation or prior to a final hearing.
At Turner Freeman Lawyers, we aim to make the entire process of a family provision claim as simple and straightforward as possible. We have Lawyers who are specialists in Wills & Estates law who will break down complex legal terms and processes into straight forward language. If you or anyone you know needs some no obligation advice, please contact our Penrith office on (02) 4729 5200 or head to www.turnerfreeman.com.au.
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I was on a recent walk with my dog and not 200m from my home, I narrowly missed being taken out by an errant driver.
To say more about the circumstances of my near death experience:

I was on a pedestrian crossing and facing a little green man
While it was night-time and dark, the intersection and pedestrian crossing I was on were both well-lit
I had traversed 3 out of 4 lanes of roadway while on that pedestrian crossing
I was walking, not running (although my dog prefers that I run)
I was wearing dark clothing (and I have a black dog)
The person in the grey Mazda approaching the intersection would have seen the traffic light facing him turn orange and then red for at least 5 seconds (the time it takes for me to traverse three of the four lanes of that road)
The driver did not slow down at all on his approach of the intersection and in fact, sped through the red light

I was naturally very upset at this person and some colourful words and impotent fist waving may have followed my experience. This ultimately brings me to the point of this post, for there are some common questions that arise from situations like this:-

Whose fault is it?
What rights do I have?
Should I make a claim?

A brief summation of the various duties each driver and pedestrian has to other road users:

every driver on the road has a duty to other road users
a driver of a vehicle has a higher duty to pedestrians, for they share the road
a driver approaching an intersection ought to be highly vigilant
a pedestrian must also take reasonable steps to ensure his/her safety
a pedestrian also has a duty to a driver on the road to ensure their safety

Whose fault is it?
Determining who is responsible for an accident, and to what extent, can sometimes be a complicated fact finding exercise.
Even situations like my own might not be immediately clear cut.
The oft repeated phrase, “each case will turn on its own facts” would certainly apply here.
Whether that driver would have been 100% liable for the accident, or 80%, or 60% or less, depends on a number of issues for consideration.
Such a determination might change if I were: nose-deep on a mobile phone, or wearing headphones, or facing a don’t walk signal, or if I had run out onto the road without looking left and right.
Get in touch with us
If you have any questions, or wish to discuss your rights to compensation please contact Turner Freeman Lawyers’ compensation team on 07 3025 9000. Harry Dignan, Owen Wolstenholme and Anthony Lau practise in Compensation Law and would be happy to have a chat with you.
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In Queensland 9/10 Family Provision Applications (FPAs) settle at a mediation, or shortly thereafter, rather than proceeding to a trial. Below is a list of the usual steps which are required to be taken in relation to an FPA:
1. Within six (6) months from the date of death of the deceased, notice of your intention to make an FPA against the estate must be given to the Executor of the estate or their solicitors.
If you do not give notice of your intention in writing within 6 months from the date of death, the Executor is entitled to distribute the estate in accordance with the Will, or pursuant to the rules of intestacy, without regard to your claim.
If you wish to make a claim after this period, you are only able to make a claim against the assets of the estate that have not yet been distributed.
2. Within nine (9) months of the date of death of the deceased, you must do the following:

file your Originating Application in the court, along with your supporting Affidavit; and
serve the Originating Application, along with your supporting Affidavit and a draft Directions Order which you propose, on the Executor or their solicitors. The draft Directions Order is essentially a timetable for the matter.

3. Within fourteen (14) days of being served with the documents in Step 2 above, the Executor or his/her solicitors must respond to your proposed Directions Order by either agreeing to it or suggesting an amended timetable/Directions Order. After the Directions Order has been agreed and signed by both the Executor’s solicitors and your solicitors, it is then filed in the court.
4. The Directions Order will confirm the date when the Executor is to serve copies of your Application and supporting Affidavit on any person who is entitled to bring an FPA against the estate and any beneficiaries who will be affected by the FPA.
5. Any person who has been served in Step 4 above, must then make a decision if they want to join the proceedings and be separately represented by other solicitors. If they do, they must file and serve a Notice of Address of Service, which must also detail whether they intend to bring an FPA against the estate. The time for doing this will be provided in the timetable/Directions Order.
6. Anyone who has filed a Notice of Address for service will also need to file and serve their affidavits by the date stated in the Directions Order.
7. In accordance with the Directions Order, the Executor will then be required to file and serve an Affidavit detailing the assets and liabilities of the estate, and also responding to your Affidavit and any other Affidavits filed by parties who have joined the proceedings.
8. The Directions Order will also provide a date for any of the parties to the proceedings to file and serve any further affidavits.
9. The parties and their legal representatives can then participate in a “without prejudice” discussion or meeting about the matter. However, this stage can be skipped if all parties agree to proceed to a mediation.
10. Mediation is the next step and is mandatory in FPAs. A mediator, who is an experienced Barrister, is an independent party and will go between the parties and their legal representatives and try to get them to agree to a resolution of the matter. If the parties come to an agreement, they will sign a Deed of Settlement/Terms of Settlement at the Mediation.
11. If an agreement is reached at Mediation, an Application for Final Orders will then be made to the Court to approve the settlement.
12. If the Application is not resolved at the mediation stage the matter will then be prepared for a trial and a trial date will be set.
Although FPAs can be settled at any stage in the process, it is important that specialist legal advice is obtained and any agreement is recorded in writing in a Deed of Settlement or Terms of Settlement. It is also important that the strict time limits of six (6) months and nine (9) months from the date of death of the deceased person are followed.
If you have any questions, or wish to discuss contesting or defending a Will, please contact Turner Freeman Lawyers’ Wills and Estates Team on 07 3025 9000. Jenna Hutchinson and Laura Hagan practise exclusively in Succession Law and would be happy to have a chat with you.
The post What happens in a Family Provision Application (FPA) in QLD? appeared first on Turner Freeman Lawyers.

In NSW, time limits apply to bringing medical negligence matters.  A person has three years from the date that they know or ought to have known that negligence occurred.  The person must “discover” the following three things:

that the injury concerned occurred;
that the injury or death was caused by the fault of the defendant; and
in the case of injury, that the injury was sufficiently serious to justify the commencing of a legal action.

Once a person knows of the above three facts, they are said to have “discovered” negligence.  They have three years from the date of discovery to commence court proceedings.  In medical negligence claims, the date of discovery is not necessarily the date of injury.  This is because in order to discover negligence, a person usually needs to have the benefit of legal and medical evidence.
The NSW Supreme Court had to consider limitation period issues, among other things, in a recent decision of Thompson v Rosen.
Brief facts:
Ms Thompson brought proceedings against Dr David Rosen and Associate Professor Alan Lam, both gynaecologists, in respect of operations performed in August 2007 and February 2008 respectively.  Ms Thompson filed her statement of claim in the Supreme Court on 1 November 2018.
The defendants argued that because her injuries were suffered more than three years before she filed her statement of claim, that she had commenced her proceedings outside the limitation period.  They argued that her injuries were sufficiently serious such that she ought to have contemplated commencing proceedings before she did.  For this reason, she should not be permitted to continue her claim.
Ms Thompson contended that she did not “discover” negligence until 6 September 2018, when she obtained a supportive expert report.  She argued that she did not know that her injuries had been caused by the fault of the defendants until she read the expert’s evidence.
She relied on previous cases heard in the Supreme Court which looked at the concept of “fault.”  In considering her case, the Court decided that “fault” in the sense of a medical negligence matter referred to fault in respect of the particular cause of action.  Establishing “fault” in a medical negligence matter requires professional advice and opinion from an appropriately qualified medical expert followed by legal advice on the elements of negligence.  The Court also decided that alleging a party is at “fault” is different to complaining about the outcome.  A person might be unhappy about the outcome of a medical procedure, but they will not know that negligence has occurred until they obtain expert medical evidence as to the elements of negligence.
The defendants argued that Ms Thompson had a “reasonably held belief” that there was a “connection between her injury and the defendants’ conduct in question”.  However, Ms Thompson submitted that she had received legal advice that she would not have a claim against the medical practitioners until she obtained supportive expert medical evidence.
Ms Thompson was successful in defending the application to have her proceedings dismissed.
The Supreme Court’s decision is a reminder that medical negligence matters are complex and require medical evidence and legal advice before commencing any court proceedings.
Get in touch with us
If you are considering bringing a medical negligence claim, it is important to obtain legal advice from solicitors who specialise in medical negligence. At Turner Freeman we have a team of lawyers who specialise in medical law claims.
If you or someone you know has suffered as a result of medical negligence we encourage you to call us on 13 43 63 to speak with one of our medical law experts. We will treat your enquiry and all information you provide confidentially.
The post How long do I have to bring a medical negligence claim? appeared first on Turner Freeman Lawyers.

Sometimes people sustain injuries in a motor vehicle accident whilst in the course of their employment. This can lead to some confusion as to what entitlements the injured person may have.
These issues can often arise with occupations including truck drivers, courier drivers and sales people, for example.
This can also arise in circumstances where a pedestrian in the course of their employment sustains injury when struck by a motor vehicle.
Although some confusion can arise, the safest and most prudent approach is to immediately lodge claims with the relevant workers compensation insurer and the relevant CTP insurer. The legislation will then usually determine what entitlements the injured person has available to them and when those entitlements are available.
The Motor Accidents Injuries Act 2017 specifically states in section 3.35 that an injured person is not entitled to statutory benefits under that scheme if compensation is payable under the Workers Compensation Act 1987. Therefore, generally speaking, if the workers compensation is accepted, then statutory benefits for weekly benefits and medical expenses will be paid for by the workers compensation insurer as opposed to the CTP insurer. However, in the event that the workers compensation insurer was to deny payment of those benefits for any reason, the claimant would then be in a position to seek payment of those benefits from the CTP insurer.
Although in some cases the claimant may never need to rely upon benefits under the Motor Accidents Injuries Act 2017, it is nonetheless imperative that notice of the claim be made on the CTP insurer within the required time frame, being three months from the date of accident. Although the workers compensation insurer may pay the claimant’s statutory benefits, the claimant may be able to claim additional common law damages from the CTP insurer in the event that it is determined that they were not wholly or mostly at fault for the accident, and they sustained more than a minor injury as a result of the accident.
It appears that recently CTP insurers have attempted to reject lodgement of the Application for Personal Injury Benefits where a workers compensation claim exists. However, it is important that the application be lodged with the CTP insurer regardless.
The claimant should also ensure that they notify the matter to police within 28 days so as to comply with all requirements under that scheme. By doing this, the claimant protects their rights, particularly in the event that a common law damages claim becomes available in the future.
CTP insurers will also notify claimants in circumstances where they believe a workers compensation claim should be lodged, in the event that it has not been already. Claimants should pay careful attention to such directions as time limits apply. Claimants should consider seeking legal advice for assistance with these procedures.
Although it can be difficult to ascertain immediately after the accident what benefits may be payable, the safest course is to ensure all initial documentation is lodged as soon as possible after the accident on all relevant insurers. Injured persons should seek legal advice at the earliest opportunity following the accident so as to ensure they have been properly advised as to all available entitlements.
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As a compensation lawyer, one of the most disheartening things we see is when a person comes to us for advice about an accident only to realise their potential cause of action is out of time. Often they are the people who have simply toughed it out for as long as they possibly could, not wanting to be “one of those people”, or simply believing everything would resolve for the better in due time.
Unfortunately, these commonplace circumstances are not an antidote to a person’s right to claim being adversely affected or completely lost as a result of a limitation period expiring prior to that person seeking legal advice.
It is so important to make enquiries to with a legal firm as early as possible, even if a person is only considering the possibility of a potential claim, so that the relevant time limits can be flagged. There are some circumstances in which time limits can be altered, or can be extended, so seeking legal advice is crucial to ensure all of the options are considered and the best advice given.
We have listed some of the most common time limits below for your information –

General Compensation Claim
Bring compensation claim
3 years from date of accident

Notice of intention to bring compensation claim
1 month from consulting a lawyer or 9 months from date of accident (whichever is sooner)

Workplace Accidents
Bring compensation claim
3 years from date of accident

WorkCover Queensland statutory claim
6 months from date of accident

Assaults
Victim Assist Queensland application
3 years from act of violence

Motor Vehicle Accident
Bring compensation claim
3 years from date of accident

Notice of Accident Claim form to be provided to CTP Insurer of vehicle at fault
1 month from consulting a lawyer or 9 months from date of accident (whichever is sooner)

Notice of accident form to be provided to Nominal Defendant (where unable to identify the vehicle at fault)
three 3 months from the date of accident – In any circumstance, a claim must be lodged within nine (9) months of the date of the accident, or it will be barred.

Property (MVA)
Property damage claim
6 years from date of accident/damage

To request information about our available legal services, or to discuss your personal circumstances with one of our experienced lawyers, please do not hesitate to contact the Turner Freeman Lawyers  Team on 13 43 63.
Our Queensland offices are in Brisbane, Logan, North Lakes, Ipswich, Toowoomba, Gold Coast, Sunshine Coast and Cairns.
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An enduring power of attorney is, perhaps, now more than ever, a vital document to have. An enduring power of attorney is a legal document that allows you to choose people that you trust who can help you with your financial and legal affairs. The people you name can assist you now if you like, […]

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For a Will to be considered legally valid it must meet the formal legal requirements contained in sections 6 and 7 of the Succession Act 2006 NSW (‘the Act’). These laws state that a Will is only valid when: the Will is in writing and signed by the testator, or by some other person in […]

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Rights of Beneficiaries under a Will So you are named as a beneficiary in a will. What rights do you have? Good question. And the best way to answer this question is to first explain the type of relationship that a beneficiary and executor of a will are in. An executor and beneficiary are in […]

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COVID-19 has impacted all of our lives and commercial tenancies are no exception. The NSW Government, on 24 April 2020 enacted legislation implementing the National Code of Conduct for commercial tenancies. In situations where a commercial tenant, who meets eligibility requirements, has been negatively impacted by COVID-19, the tenant can request their landlord renegotiate rent […]

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