Recently, the High Court handed down a ruling in favour of Roseanne Beckett, a woman who had been wrongfully arrested, convicted and imprisoned for 10 years for the alleged attempted murder of her husband. After protesting her innocence for 26 years, Ms Beckett was awarded $2.3 million in damages to be paid by the state of NSW for ‘malicious prosecution’. In fact, she had been framed by a dodgy detective with a vendetta against her family. Although this is an extreme case, it begs the question: do you know your rights when you are arrested?
The police can arrest you if:
you are committing an offence or
they have reasonable grounds to suspect you have committed an offence
you are breaching the peace
you have breached any bail conditions you may have
a warrant has been issued for your arrest or
you are to be served with an Apprehended Violence Order.
However, the police officer arresting you should:
(1) tell you that you are under arrest
(2) give you reasons why you are being arrested and
(3) tell you his or her name and place of duty.
In 2014, the Law Enforcement (Powers and Responsibilities) Act 2002 was amended so that if a police officer does not provide you with their name and place of duty their arrest will still be lawful, however if you ask a police officer for the information and they do not provide it, your arrest will not be lawful.
Once at the police station, the Police will inform you of your rights, and this includes your right to have a solicitor or other person present. Generally, when being questioned you have a right to silence, although in most circumstances you will need to provide your name and address and in some circumstances proof of age or, in the case of traffic offences, your driver’s licence. Aside from this, however, you are not obliged to answer any questions. If you are unsure, your best option is to request that the police wait to question you until you can seek legal advice.
At Everingham Solomons Solicitors we have the expertise and experience to assist you because Helping You is Our Business.
Prior to a recent decision by the Full Federal Court of Australia in Anglican Care v NSW Nurses’ & Midwives’ Association [2015] FCAFC 81 (5 June 2015) employers often believed that whilst an employee was not at work and receiving weekly payments of compensation, they were not entitled to accrue annual leave.
In the case that was before the Full Bench of the Federal Court, an aged care worker was not at work, but receiving weekly payments of compensation from December 2009 to May 2011. The worker had not been terminated and was still employed. The argument was whether the worker was entitled to accrue annual leave during that period, with the total value of the claim being $3,000.
The worker was represented by her union, as such the legal costs which would have far exceeded the claim, was not in issue.
The Federal Legislation, that being section 130 of the Fair Work Act 2009 (Cth), provides that an employee is not entitled to accrue annual leave if off work, unless permitted to by the State Law.
The State Legislation being section 49 of the Workers Compensation Act 1987, provides that workers are entitled to receive weekly payments of compensation, even though they are entitled to receive annual leave. It has always been thought that this meant that if you had accrued annual leave, you were entitled to take it even though you were receiving weekly payments of compensation.
Prior to going to the Full Bench, Justice Emmett of the Federal Circuit Court decided that this meant that a worker could accrue the annual leave whilst receiving weekly payments of compensation. This decision was then upheld by the Full Bench of the Federal Court.
This situation may however be reversed by Federal Legislation and there is at present an amendment to the Fair Work Act that is before the Senate.
At the moment however, workers are entitled to accrue annual leave whilst receiving weekly payments of compensation.
If you require any assistance in respect to these or other matters, please do not hesitate to contact us at Everingham Solomons because Helping You is Our Business.
This ANZAC Day you can play Two-Up in the region safe in the knowledge that you are not breaking the law.
In June 1998 the Minister for Racing introduced into the NSW Parliament ‘The Gambling (Two-Up) Act 1998(NSW)’.
This Act allows people in NSW to play two-up on ANZAC Day or any other designated commemorative day. Other designated Commemorative Days include Victory in the Pacific (15 August) and Remembrance Day (11 November) after 12.00 noon (presumably to ensure that the minute silence is not interrupted by exuberant punters).
If however you travel north into Queensland and join a game of two-up you will be breaking that State’s laws.
Insofar as the history of the law and two-up is concerned, prior to 1989 it was illegal to play two-up in NSW. In that year the Gaming & Betting (Two-Up) Amendment Act allowed two-up to be played on ANZAC Day. In 1992 there was a further amendment to allow two-up to be played all year round in Broken Hill. When the 1998 Act was introduced section 9 of that Act provides that certain areas in Broken Hill may hold games of two-up on the basis that it is organised by Council or the Broken Hill Council has approved the venue for the game to be held.
The 1998 Act requires that the games that are played on ANZAC Day are on a not for profit basis or if it is in a club no entrance fee is to be charged. Clubs that host the game and receive some monies must donate all proceeds to charity.
So this ANZAC Day, for all those taking a plunge in the region, good luck and come in spinner!
If you require any assistance in respect to these or other matters, please do not hesitate to contact us at Everingham Solomons because Helping You is Our Business.
As a result of a decision by the Federal Court of NSW on 11 November 2014, workers in NSW are entitled to accrue annual leave whilst they are receiving weekly payments of compensation.
The case, NSW Nursing & Midwives Associations v Anglican Care [2014] FCCA 2580, involved a lady by the name of Ms Copas, who was receiving weekly payments of compensation as a result of a workplace injury for a number of years.
The question the Court had to answer was whether Ms Copas was entitled to accrue annual leave whilst she was not working and receiving weekly payments of compensation. Importantly, Ms Copas had not been terminated and was still an employee of Anglican Care.
Section 49 of the Workers Compensation Act 1987 provides that an injured worker is entitled to compensation even though they are entitled to holidays or long service leave. That has been long interpreted as allowing an injured worker to receive both, workers compensation payments and annual leave or long service leave, assuming the worker had annual leave or long service leave owing.
Section 130 of the Fair Work Act 2009 (Cth) provides that a worker is not entitled to take or accrue any leave if they were absent from work because of a personal injury or personal illness, unless the taking or accruing of leave is permitted by compensation law.
The Federal Court held that the NSW legislation is a ‘compensation law’ and that because of section 49 of the NSW legislation, it allows workers to accrue annual leave and long service leave throughout the period that they off work receiving weekly payments of compensation, and prior to them being terminated.
This decision has wide ranging consequences for both employers and employees, for both the past and future. As the decision is very recent, it may well be that there is an appeal to a higher court and the full ramifications take some time to filter through.
If you require any assistance in respect to these or other matters, please do not hesitate to contact us at Everingham Solomons because Helping You is Our Business.
On 13 August 2014 the High Court handed down a decision in a case called Honeysett v The Queen [2014] HCA 29.
In court cases evidence is not admissible unless it is based on fact. There is no room for opinions. The exception to this rule is expert evidence that allows evidence of certain persons that have specialised knowledge to be admitted.
Mr Honeysett was convicted of armed robbery at the Narabeen Sands Hotel based on the opinion of expert evidence. There was CCTV footage of the robbery that showed three offenders that each had on long dark clothing and disguised their faces with ‘white pillows or T-shirts wrapped around’ their faces.
The Prosecution managed to have admitted into evidence, over the objection of the accused, the evidence of a Professor of Anatomy, Maciej Henneberg from the University of Adelaide.
Professor Henneberg gave evidence from viewing the CCTV footage and also seeing photographs of the accused when he was in a Police cell, that included that there were eight features that he could see from the CCTV footage that included that he was adult male, had a skinny body build, medium body height, short hair and the shape of his head. The Professor used medical terms to describe the above characteristics. The Professor came to the view that the accused shared those eight characteristics. The accused asserted that the Professor’s opinion was not expert evidence, but rather an opinion that anybody could have made.
The High Court held that the evidence of Professor Henneberg was not based wholly or substantially on his knowledge of anatomy and that his opinion of the characteristics of the offender was based on his subjective impression of what he viewed on the video and as such was not expert evidence and not admissible.
On that basis the appeal was upheld and a new trial was ordered, which will be without the evidence of Professor Henneberg.
If we can be of assistance, please do not hesitate to contact us at Everingham Solomons because Helping You is Our Business.
Last week on 13 August 2014 the High Court handed down two decisions in criminal matters, one dealing with expert evidence and the admissibility of that evidence, and the other on a similar topic, DNA evidence.
In respect to DNA evidence this case was called Fitzgerald v The Queen [2014] HCA28, and involved the murder of a victim where a number of people were involved. The only evidence that tied Mr Fitzgerald to the scene was his DNA evidence that was on a didgeridoo. There were no witnesses to put him at the scene of the crime or any other evidence apart from this one piece of DNA. There was however evidence that Mr Fitzgerald had, during the course of the day, been in contact with other persons that were convicted of the murder and had been also in the same room as the didgeridoo.
Expert witnesses said that insofar as the DNA evidence was concerned, that it was possible that it was transferred from a person that Mr Fitzgerald had been with during the course of the day or, it was also possible that Mr Fitzgerald left it on the didgeridoo earlier in the day.
On this basis the High Court held that it could not be established, beyond reasonable doubt, that Mr Fitzgerald was present at and participated in the murder, and a conviction based solely on DNA evidence, with these particular facts was not sound.
There was a similar case in Germany that was known as the Phantom of Heilbronn or the Woman without a Face. Between 1993 and 2007 there was DNA evidence of a lady found at numerous crime scenes which included six murders. The Police thought that they were dealing with a female criminal mastermind that had committed murders, burglaries and armed robberies across Austria, France and Germany.
It turned out that the DNA was that of a lady that worked in the cotton bud factory in Bavaria that manufactured the cotton buds that the Police were using and they had not been properly sterilised before being distributed by the factory.
Next week I will talk about another case that involves expert evidence.
If we can be of assistance, please do not hesitate to contact us at Everingham Solomons because Helping You is Our Business.
Attached to a lot of superannuation funds are insurance policies that will entitle the policyholder to a payment should they become unable to work.
Generally speaking there are either income protection policies or total & permanent disability policies. An income protection policy entitles a person to an income whilst they are unable to work because of illness or injury. There is usually a preclusion period and the payment will go for a finite period.
Also attached are total & permanent disability policies which provide for a lump sum to the ill policyholder. Whether or not you are totally and permanently disabled will depend firstly on the illness and secondly on the definition of ‘total & permanent disability’. There are two definitions for total & permanent disability policies:
any occupation – if you have been unable to work as a result of illness or injury and are incapacitated to the extent that you will never work in any income earning occupation suited to your educational, training and experience; and
own occupation – if you have been unable to work to such an extent that you are unlikely to engage in your own occupation.
Obviously the definition of ‘own’ as opposed to ‘any’ is a far easier definition to satisfy. If for example your occupation is a builder and you suffer an arm injury which makes you unable to work as a builder. It may however be that you can still undertake a sedentary job such as a lawyer, provided you have the education, training and experience and therefore you would fulfil the definition of ‘own occupation’ but not the definition of ‘any occupation’.
So in the above example you would be able to claim under the second definition but would not be able to fulfil the first definition.
To lodge a claim involves completing a great deal of paperwork as well as obtaining medical reports from treating doctors and complicated legal principals.
If we can be of assistance, please do not hesitate to contact us at Everingham Solomons because Helping You is Our Business.
There are certain classes of people that may contest a Will. The law appreciates that a person has the right to choose who their Estate is left to, but the Succession Act 2006 allows some people to challenge a Will if they have been unfairly left out.
The people that are able to challenge a Will include the following;
A wife or husband;
Those that are in a de facto relationship, with the deceased, at the time of death;
A child of the deceased;
A former wife or husband of the deceased; and
A grandchild or member of the household that has been dependent on the deceased.
Once the Court is satisfied that the Plaintiff is “an eligible person” they will then look at the factors as outlined in Section 60(2) of the Succession Act 2006. These include the type of relationship between the Plaintiff and deceased, the nature and extent of the obligations or responsibilities, financial resources of the Plaintiff, financial situation of people cohabitating with the Plaintiff, any physical or intellectual disability of the Plaintiff as well as character and conduct of the Plaintiff during the deceased’s life time. All of these factors are considered by the Court when looking at whether there should be some provision for the Plaintiff.
The Court will also consider any provisions made for the Plaintiff during the life of the deceased. That is to say that if the deceased help the Plaintiff financially during his or her life time that will be relevant to any claim made by him or her.
If you wish to challenge a Will or defend a Will if you are an Executor, please contact us at Everingham Solomons for assistance because Helping You is Our Business.
If your business that wants to sponsor somebody from overseas there are a number of requirements, most of which are relatively straight forward, but the one that many businesses are not able to comply with straight away is that of “training benchmarks”.
Training benchmarks are evidence that an employer, has spent or will spend a certain amount on training. The purpose is to ensure that employers are investing in Australian employees before they are able to sponsor overseas workers.
There are two ways that an employer can meet the training benchmarks.
The first way is to provide evidence that in the twelve months prior to lodging the application that at least 1% of payroll has been spent on training of employees of the business. This also needs to maintained through the life of the approval.
Apprentices and trainees wages would be included as would fees paid for TAFE, University or funding of scholarship courses. Evidence of payment of external providers, tuition fees and conferences would be required. Also expenditure on “on the job training” needs to be a structured learning with identifiable outcomes and relevant to business activities.
If a business is unable to meet the 1% of payroll obligations, the second way for the business to comply is to pay 2% of their payroll to an industry training fund. This is obviously not always attractive and the preferable approach is to train your own workers.
As a sponsor you will need to continue to meet the training benchmark requirements for the life of the sponsorship.
If you require any assistance in respect to becoming a sponsor of 457 visas, please contact us at Everingham Solomons for assistance because Helping You is Our Business.
The Home Building Act 1989 gives protection to home owners after their houses are built.
Home building refers to anything from building a new home down to renovation of a kitchen or installation of a pool.
Section 18B of the Home Building Act incorporates into legislation warranties for all residential work. The builder warrants that the work will be carried out in a proper and workmanlike manner, all materials will be good and suitable to purpose, building work will comply with any laws, the work will be done with due diligence, and must be fit for occupation.
If these warranties are not complied with then the builder can be sued for breach of the contract.
The first point of call, for those with complaints, is the Consumer Trader & Tendency Tribunal. The Consumer Trader & Tenancy Tribunal can hear and determine matters up to the value of $500,000.
Disputes lodged with the Consumer Trader & Tenancy Tribunal generally concern building works not carried out as agreed, building work that is defective, dispute about insurance or non-payment.
Applications must be lodged within three years or within six years for structural defects.
If you should have any issues in respect to home building disputes, please ensure that you contact us at Everingham Solomons because Helping You is Our Business.
Recently, the High Court handed down a ruling in favour of Roseanne Beckett, a woman who had been wrongfully arrested, convicted and imprisoned for 10 years for the alleged attempted murder of her husband. After protesting her innocence for 26 years, Ms Beckett was awarded $2.3 million in damages to be paid by the state of NSW for ‘malicious prosecution’. In fact, she had been framed by a dodgy detective with a vendetta against her family. Although this is an extreme case, it begs the question: do you know your rights when you are arrested?