As Willie Nelson famously put it, being on the road is a source of freedom and enjoyment for many people. More than this though, having a licence is crucial for people in rural and regional areas, given the tyranny of distance and lack of public transport alternatives.
Despite the importance of a drivers licence, many people lose it for significant periods of time due to poor behaviour on the roads. Previous legislation in this area meant that any driver who committed three relevant offences within a five year period could be declared a Habitual Traffic Offender (HTO). The effect of HTO declaration was that the Roads and Maritime Services would impose a further five-year licence disqualification on top of any disqualification imposed by the court.
Although the HTO scheme has been abolished since 2017, under the Road Transport Amendment (Driver Licence Disqualification) Act 2017 (NSW), there are many people who still have years, if not decades of licence disqualification to serve under the old scheme.
All is not lost however, as applications can be made to the Court to quash old HTO declarations under clause 65 of schedule 4 of the Road Transport Act 2013 (NSW).
Such an application will be successful only if:
• a certified copy of the person’s driving record is provided to the Court;
• the offender has served the minimum disqualification period (two or four years depending on the offence);
• the offender has not been convicted of any further serious driving offences; and
• the magistrate determines that “the disqualification imposed by the declaration is a disproportionate and unjust consequence having regard to the total driving record of the person in the special circumstances of the case”.
If you require assistance in relation to licence disqualification or other traffic matters, our team of experienced solicitors at Everingham Solomons can assist you because Helping You is Our Business.
Bankruptcy is the legal process by which you are declared as not being able to meet your debts.
Once you are declared bankrupt a Trustee is appointed to manage and control your assets. Essentially the appointed Trustee is given the power to sell your assets as well as use any funds in your bank account(s) that are in excess of the threshold, to pay back money owed by you. Any assets that are sold or used by the Trustee makes up what is known as a bankrupt estate.
So what happens if you receive an inheritance prior to becoming bankrupt?
Much like any other funds in your bank at the time you declare or are declared bankrupt or any other asset of value, an inheritance will be used to pay back any debts you owe.
Essentially the same thing will happen if you receive an inheritance during the period of which you are bankrupt. Money or property received can be sold or used by the Trustee to pay off your debts.
So is there any way to protect an inheritance from being used to pay back your debts?
This question is difficult to answer.
You cannot simply write in a Will that you do not want the inheritance to go to the trustee of the bankrupt estate. Nor can you secretly give the bankrupt person their inheritance another way. It will be considered that you have defrauded the bankrupt estate and a claim can be made by the trustee to recover this inheritance.
However, with careful estate planning there are ways to protect an inheritance from being claimed by the bankrupt estate. A person can establish what is known as a discretionary testamentary trust. When assets are left to a trust, a trustee is appointed, which gives them the power to deal with property and assets. As the power lies with the trustee of the testamentary trust to deal with bequeathed assets, they are protected against a claim by a trustee of the bankrupt estate.
There can be many implications of creating a testamentary trust and it is not as simple as it may sound. You should seek legal advice as to the suitability of such a trust.
If you are considering bankruptcy or are concerned about a beneficiary becoming bankrupt, our experienced Solicitors can advise you because Helping You is Our Business.
After the terrifying incident which occurred in Victoria recently, there has been more talk about what you are required to do when you are involved in a car accident.
In NSW, under the Road Transport Act 2013 it is an offence if you are driving and you fail to stop and assist after being involved in an impact which has caused injury or death. This could be impact with another vehicle, a person, or any other object. It also applies if a person is thrown from a vehicle.
Penalties for this offence are significant, with first time offences facing 18 months imprisonment and a $3,300.00 fine.
You can be found guilty of this offence, even if the accident was not your fault.
So what assistance are you required to give in these circumstances?
Well this depends on you and your capacity to render assistance. The Legislation states that you are to give the assistance which is in your power to give. At a very minimum you should to do the following:
1. Call “000” for an Ambulance and the Police; and
2. Make the scene safe for everyone which includes things like turning off the ignition of any vehicles involved in the crash and
applying hand brakes.
So what are you required to do if no one is injured?
Well things become much simpler. If the Police do not attend the scene of the accident, you are required to report the accident to the police within 24 hours, if you had to be towed, or there was damage of any kind.
Lastly it is important to note that after any accident, if you are asked to provide your details by another driver, you must provide them with:
1. Your name, address and Licence details;
2. Your Registration details; and
3. The name and address of the owner of the Vehicle (if it is not yours).
It is important that you adhere to the road rules as there can be some harsh penalties if you get caught doing the wrong thing on our roads.
If you require assistance with fines, traffic offences, or motor vehicle claims for personal injury, Everingham Solomons have the experience and expertise to assist you because Helping You is Our Business.
I have recently joined Everingham Solomons working in the litigation team.
My professional qualifications include graduating with a Bachelor of Commerce, Bachelor of Laws and a Graduate Diploma in Education from the University of New England. I also hold a Graduate Diploma in Legal Practice through the College of Law. I have been admitted as a Solicitor to the Supreme Court of New South Wales and the High Court of Australia.
Previous to joining Everingham Solomons, I have worked in the finance and education sectors, as well as in other law firms.
Although I have only recently commenced working at Everingham Solomons, my connection to the firm is strong, having been the recipient of the inaugural Sir Adrian Solomons Memorial Law Bursary in 1998. In fact, my sister Laura, who is now also a solicitor, won the same bursary the following year – a “Daley Double” so to speak. Working at Everingham Solomons some twenty odd years after receiving the Bursary completes the circle. It is personally rewarding to work for Everingham Solomons given the support they provided me via the Law Bursary when I was a local high school and university student.
On a personal note, my interests include equestrian pursuits, particularly Australian Stock Horses and polocrosse as well as spending time with my family.
Tamworth is a great place to work and live. I am looking forward to providing excellent legal service as part of the Everingham Solomons team, because Helping You is our Business.
It’s happened. The dreaded jury service summons has appeared in your mail box and you are mentally trying to figure out how many seasons of Suits you can binge watch before you have to attend. But largely you are probably thinking… Do I have to?
If you have been summoned to serve on a jury then you are legally required to attend Court on the date provided in the summons. However there are some circumstances where you can apply to be exempt or excluded from serving.
To be excluded or exempt from jury duty means that you are not allowed to serve on a jury. Generally, people who are excluded or exempt is because they work in the legal, political or criminal justice system, and because the perception that these people may attempt to examine the Law rather than make decisions based on fact, which is the role of a jury. For this same reason, people found guilty of serious offences are also excluded from service.
You can also apply to be excused from jury service. You will need a legitimate reason for being unable to serve. In some circumstances you can be excused on the basis of your job, however as jury service provides you with an allowance, it is not usually viewed as a legitimate reason. Other reasons you may be excused include: pregnancy, being a full time carer, being absent from NSW (and no you cannot book a holiday after you receive your summons!) or if you have a medical condition that will make jury service difficult.
Juries are an important part of the judicial process and are required in both criminal and civil trials. Our legal system is based around the principle that you are innocent until proven guilty. The role of a jury is to make a decision as to whether a person is guilty of a crime based on the evidence presented to them during a trial. They do not make decisions of law.
But fear not! Only about 9000 of the 200,000 people summoned for jury service each year actually end up serving on a jury. Trials are often delayed, or they don’t proceed because the person involved has decided not to take the matter to trial. In those circumstances, the jurors are usually dismissed and are not required to serve. If a trial is to proceed, then you are taken into the courtroom and if you know any of the people involved with the trial then you will be dismissed. After that, each Solicitor/ Barrister has the opportunity to dismiss three jurors each without providing any reason. So just because you are summoned, does not mean you will have to serve on a jury.
That does not mean that you do not have to attend. If you fail to show for jury service you will receive a letter asking you to explain your absence. If you fail to respond to this letter or if you do not have acceptable excuse for not showing then you can be fined an amount up to $2,200.00. That’s a fair price to pay for a few days of serving your community!
Everingham Solomons have experienced Solicitors who can assist with your Legal matters, because Helping You is Our Business.
Confused by the requirements for how to restrain children in the car? It can be quite daunting and sometimes hard to get accurate information regarding child restraints and the legal requirements for car seats.
So let us break it down for you.
Under the NSW Road Rules 2014 you must restrain a child as follows:
AgeType of restraint
0-6 months Approved rear facing restraint
6 months to 4 years Rear or forward-facing approved child restraint with an inbuilt harness
4 years to 7 years Forward-facing approved child restraint with an inbuilt harness or an approved booster seat
7 years plus (145cm or shorter) It is strongly recommended to use an approved booster seat
7 years plus (145cm or taller) Adult lap-sash seatbelt
Additional requirements for the above approved restraints are that they must be properly adjusted and fastened. This means you can be fined for not having your car seat properly fitted.
The penalty for having an incorrectly or unrestrained passenger in your vehicle is 3 Demerit points and a fine of $344.00.
It is important to note that while the above are in place and age specific, if your child is too big or too small for the restraint for their age group, it may be necessary for them to use the restraint suitable to their size, not age.
It is also an offence to have a child between the age of 4 and 7 to travel in the front seat of a vehicle, unless the back seats are taken by children that are younger than them.
At Everingham Solomons we have the experience and expertise to assist you because Helping You is Our Business.
It is widely known that Australia is in the midst of a terrifying Bushfire season which have had a devastating effect on our residents, wildlife and fire services and others, physically, mentally and financially. The old Australian adage about how when times are tough, mateship prevails has proven to be true and in typical fashion the people of Australia have rallied. We have seen unprecedented levels of donations well into the hundreds of millions of dollars, to assist the victims, fire services, charities and wildlife agencies.
While many of these organisations are legitimately accepting donations to assist those in need, we have also seen an increase of scammers defrauding people by claiming to be assisting those affected by the bushfire disaster.
If you have been a victim of a scam, it is unlikely that you will be able to get your money back. This is because it is usually very difficult for authorities to find the people guilty of these offences and charge them. However if you think you have been scammed, you should make a report to the police as soon as possible. They have jurisdiction to follow up these reports providing that the scammers are in Australia. If the scam originated outside of Australia, then there is very little the Police can do for you. You should also report it to Scamwatch which is a government run website that warns citizens of the latest scams.
As mentioned above it is unlikely you will be able to recover your money from a scammer. You may be able to recover it if your bank can stop the money transfer, so contact them immediately. They may also be able to stop the scammers from taking any more of your money, by blocking transactions.
Some tips to ensure you are donating to a legitimate charity or organisation:
1. Do not donate to a charity you cannot verify. You can search for registered charities and not-for-profits online at https://www.acnc.gov.au/charity.
2. Avoid donating on charity platforms that don’t verify the legitimacy of the fundraiser.
3. Avoid giving your credit card details to anyone who cannot be verified.
4. Donate to established known charities with verifiable fundraising goals.
It is important to report scams, even if you cannot get your money back to prevent other people from falling victim to the same scam.
Everingham Solomons have experienced Solicitors who can assist you with your legal problems because Helping You is Our Business.
With the devastating bush fires Australia has faced in recent times, it is a timely reminder to check and ensure that your smoke alarms are installed in accordance with the legislation and more importantly that they are in good working order. The Law in relation to smoke alarms in New South Wales is pretty clear. There is a requirement for all buildings in which people sleep to have working smoke alarms installed. Firstly, how do you make sure they are working? NSW Fire and Rescue recommend testing smoke alarms once a month (press and hold the test button) and changing the batteries every 12 months. Now, are they compliant? The Environmental Planning and Assessment Amendment (Smoke Alarms) Regulation 2006 sets out the what types of smoke alarms are acceptable and the requirements for installation in different types of buildings. The Legislation stipulates that working smoke alarms must be installed in every level of your home. You are also required to ensure smoke alarms are installed and working in any rental properties you might have. The requirements for smoke alarms does not only apply to residential property, strata properties, caravans and motorhomes are also required to have working smoke alarms. It is an offence not to comply with the Legislation, and fines can be pretty hefty! But the offences don’t stop there. It is also an offence to remove or interfere with a smoke alarm. Fines of up to $550.00 can apply to offences regarding smoke alarms. Everingham Solomons have experienced Solicitors who can assist you no matter your legal question because Helping You is Our Business.
Everingham Solomons are pleased to announce that once again a Tamworth, Quirindi, Gunnedah or Manilla Year 12 student wishing to undertake university study in Law will have a valuable opportunity to receive the benefits of our Law Bursary.
The Sir Adrian Solomons Memorial Law Bursary has long provided financial assistance for the successful applicant during their first year of university as well as an opportunity to gain valuable paid work experience in our offices periodically throughout the duration of their studies.
Everingham Solomons will also be making a cash donation to the school of the successful applicant to assist in maintaining the excellent educational standards that our region can offer.
Local High Schools have been contacted and advised of the details. Interested students should liaise with the Principal or Careers Advisor of their school, who will assist them in making a formal application for this Bursary.
We emphasise that the selection process does not depend solely on academic merit. We appreciate that students come from a variety of backgrounds and accordingly the selection process concentrates on the attributes of the student as a whole, rather than solely academic achievement.
The Bursary has gained widespread interest since its inception and continues to provide a valuable opportunity for current Year 12 students wishing to pursue a legal career. The Bursary is also open to students currently undertaking a gap year who will be commencing university study in 2020.
Everingham Solomons view the Bursary as a continuing commitment to young people in the communities of Tamworth, Quirindi, Manilla and Gunnedah and we encourage interested students to apply. Applications will be accepted until 10 January 2020.
Click here for more information on Libby Campbell.
As of the 26th of September 2019, NSW has had a change to one of its road rules. From this date Motorists will be required to slow down when passing stationary Emergency or breakdown / tow vehicles which are displaying flashing lights.
A trial version of this rule change has been in effect for the past 12 months, however amendments to this have been made due to public feedback.
So what does this actually mean for Motorists?
Motorist will now be required to slow down when passing stationary vehicles which are displaying red and blue or yellow flashing lights. These vehicles include Ambulances, Police vehicles, Fire and Rescue vehicles, State Emergency Service vehicles, Volunteer Rescue Organisation’s vehicles, Traffic Commander vehicles, Transport Emergency vehicles, Tow Trucks and Breakdown Assistance vehicles.
Motorists who are travelling in an area where the speed limit is less than 90km/ hour, you will be required to slow down to 40km/hour when passing a stationary Emergency or breakdown / tow vehicles displaying flashing lights.
Motorists who are travelling in an area where the speed limit is more than 90km/hour, will no longer be required to slow down to 40km/hour, however will be required to slow down to a reasonable speed suitable for the conditions and circumstances. This speed is at the judgement of the Motorist, however it is expected that you make a clear, notable and safe attempt to reduce your speed. You will also be required to give plenty of space when passing these vehicles, including switching lanes if circumstances allow you to.
Much like all of the NSW road rules, penalties apply when you do not comply with them. In this circumstance, the penalty for breaching this road rule is a $457.00 fine and a loss of 3 demerit points.
If you believe you have been wrongly fined under this new road rule, you can apply to have the fine reviewed or appeal the penalty notice in Court, if you have grounds to do so. Before taking any matter to Court we strongly recommend that you seek legal advice from one of our experienced Solicitors as it can become quite costly if you are unsuccessful in your appeal. Everingham Solomons have experienced Solicitors that can assist you because Helping You is Our Business.
As Willie Nelson famously put it, being on the road is a source of freedom and enjoyment for many people. More than this though, having a licence is crucial for people in rural and regional areas, given the tyranny of distance and lack of public transport alternatives.
Bankruptcy is the legal process by which you are declared as not being able to meet your debts.
Everingham Solomons are pleased to announce that once again a Tamworth, Quirindi, Gunnedah or Manilla Year 12 student wishing to undertake university study in Law will have a valuable opportunity to receive the benefits of our Law Bursary.