All those involved in the design of structures such as architects, engineers and building designers are now required to practice “safe design” under the new work health and safety laws.
The concept of “safe design” requires a designer to ensure, so far as is reasonably practicable that the plan, substance or structure is designed to be without risks to the health and safety of persons.
Designers will have a duty to provide a safety report and risk assessment to their clients for all design projects including residential housing.
A study in 2007 estimated that up to two thirds of the deaths in the construction industry was linked to poor design and planning.
The purpose of the new laws is to minimise the number of deaths and injuries associated with construction.
In this regard the designer must consider the building or structure during the construction phase, maintenance and end of life demolition.
Examples of safe design include:
Specifying non toxic paints
Placing permanent anchor points on the roof for maintenance
Ensuring the risk from overhead power lines is shown on plans
It is likely that designer’s costs will increase however if the aim of eliminating deaths and injuries is achieved, the cost will be justified.
At Everingham Solomons we can service all of your legal needs because Helping You is Our Business.
We are pleased to announce that the 2011 bursary recipient is local student Nathan Whale. Nathan completed Year 12 at Farrer Memorial Agricultural High School in 2010 and then undertook a gap year. This is the third time a student from Farrer has been awarded the Bursary.
Nathan has enrolled in a Bachelor of Business Information Systems – Bachelor of Laws Degree at the University of Wollongong. We are very confident that he will prove to be an outstanding student and, ultimately, an exceptional asset to the legal community.
The continued interest shown in the Sir Adrian Solomons Memorial Bursary by Higher School Certificate students from our local schools has been extensive and the quality of the applicants every year has made the selection process very difficult indeed.
This firm has, over the last 14 years, offered an annual bursary for local high school students completing their Higher School Certificate and securing admission to a tertiary facility to pursue a career in Law.
To encourage our youth in this way has been most rewarding for this firm. We continue to be astounded by the quality of applicants, their range of interests and their enthusiasm and motivation to achieve. Such qualities in these young people reflects well on our local High Schools.
Students currently contemplating a career in Law who are sitting for the Higher School Certificate this year are encouraged to make an application for the Bursary by submitting their curriculum vitae to this firm prior to 30 November 2012. We will contact the Schools later in the year to arrange for this opportunity to be raised with interested students.
Everingham Solomons are proud to provide this opportunity for local students and look forward each year to the time when the successful recipients join us for some practical experience in the firms offices.
Congratulations Nathan. We are, as I am sure your family and your School are, very proud to see you awarded the 2011 Sir Adrian Solomons Memorial Law Bursary.
Click here for more information on the Sir Adrian Solomons Law Bursary.
Click here for more information on Terry Broomfield.
Making a Will is one of the most important things a person can do during their lifetime. Like many things in life though preparation is the key and very often people fail to take the time to put in place a Will that carries out their wishes. An integral part of making a will should include seeking legal advice. Why? The reason is simple. Whilst the law recognizes a person’s right to decide who inherits their estate, the law equally recognizes a person’s right to contest or challenge a will. Also failing to make a will at all can be a time-consuming and expensive process for family members that can be avoided if an up-to-date will is in place.
There are often genuine reasons why a person should contest a will. For example a will made out of spite can have devastating effects for a family. Likewise a will that is so far out of date that it fails to take into account the person’s true circumstances at the time they die can have similarly devastating consequences for an already grieving family.
Typically a will may be challenged on two grounds. Firstly, because a person has been left out of will or unfairly provided for in a will. Or secondly, because the person who died left a will in which they did not have the mental capacity to understand what he or she was signing.
There are strict time limits that apply for challenging a will and it is essential that legal advice is sought.
Whether you are a person seeking to make a claim against another person’s will, or the executor named in a will, or a person needing to make a will, obtaining legal advice is essential.
At Everingham Solomons we have the expertise and experience to assist you with your Estate Planning needs and claims for a more equitable share in a person’s estate. We can work with you to identify the legal issues relevant to your situation and advise you of the options available so you can make an informed decision that’s right for you, because Helping You is Our Business.
Click here for more information on Lesley McDonnell
An Apprehended Violence Order (“AVO”) is an order of the court that restricts the behaviour of the person against whom the order is made.
A court has the power to make an AVO against someone, if the applicant or protected person has reasonable grounds to fear and in fact fears violence, intimidation or stalking.
All AVOs have a condition that the person against whom the order is made (“the defendant”) must not assault, molest, harass, threaten, stalk, intimidate or otherwise interfere with the protected person. In addition, the applicant can apply to the court for additional orders, such as those that restrict the defendant from approaching or going within a certain distance of the protected person.
An AVO is not of itself a criminal charge which means that if you have an AVO placed against you, it will not be recorded on your criminal convictions history.
However, if an AVO is placed against you and you then break the orders made by the AVO, you will be charged with a criminal offence and if convicted, that offence will appear on your criminal record. For this reason it is important that you have a clear understanding of your obligations under an AVO.
If you are the subject of an AVO application, you can either dispute that your behaviour warrants the making of an AVO, or you can agree to the AVO being put in place.
Becoming the subject of an AVO can have serious consequences when it comes to your employability. Many industries, are unable or unwilling to employ people that are named as a defendant on an AVO. Having an AVO placed against your name can also prevent you from holding a firearms licence as well as many other security licences and the like.
For this reason it is extremely important that you consult with a solicitor if someone takes out an AVO against you. Similarly, if you fear violence and hold concerns for your personal safety because of the actions of another, a solicitor can advise you on the options and best approach to apply for an AVO.
Should you have any further questions about AVOs please do not hesitate to contact one of our solicitors, because at Everingham Solomons, Helping You is Our Business.
There are instances whereby parents assist their children financially even when those children are grown up and have families of their own. Whether it be helping with mortgage payments, providing rent free accommodation, helping out with the groceries or an inheritance at the end, these may be significant from a Family Law perspective.
Parents usually don’t mind helping their children, but what happens when your child separates from their partner and they want to benefit from your generosity?
This was argued recently in the matter of Ross & Audley [2011]. The parties commenced cohabitation in 1986 and were married in 1987. There were 4 children of the marriage plus the wife had a child to a previous relationship who resided with them.
When the parties commenced cohabitation they lived rent free at property P, which was owned by the wife’s mother. In 1987, the parties moved to property C, also owned by the wife’s mother, and again rent free. The parties continued to reside at property C until 2011, when the house was demolished and another one built. During the time that the new house was being built, the parties resided at property T, also owned by the wife’s mother, and again rent free.
In 2004, the wife’s mother passed away and the wife received an inheritance of property C, a half interest with her brother in property T, a considerable share portfolio and antique furnishings.
The parties separated in 2008 and the wife remarried. The wife claimed that she should be entitled to 80% of the assets as it was her mother’s inheritance which provided much of the pool.
The husband argued for an equal split for many reasons but mainly that he had cared for the wife’s son from a previous relationship, he provided care of the wife’s mother in the 4 years leading up to her death, the length of the relationship, his earning capacity of working full time plus being the primary caregiver when the wife was in ill health, and his contribution to the care of the children when the wife left.
It was also argued by the husband that the parties were always aware that the wife would inherit from her mother’s estate and this is the reason why the parties never purchased their own real estate or shares. The husband also submitted that the inheritance was for the benefit of not only the wife, but him and the children as well.
Federal Magistrate Bender concluded that “whilst the husband argued the wife’s mother intended to benefit the family as a whole, I am of the view that the wife inherited from her mother because she was her mother’s daughter.”
In that regard, the Federal Magistrates ordered that there be a 75/25% split in favor of the wife.
When you are considering separating or have separated, and you have received financially from your parents, you should seek legal advice from Everingham Solomons because we have the experience and expertise to assist you. Helping You is Our Business.
1 January 2012 saw the commencement of the harmonised Work Health and Safety Act. To date, the new legislation to implement a national approach to workplace health and safety has been adopted by the Commonwealth, New South Wales, Queensland, Northern Territory and ACT governments.
The Work Health & Safety (WHS) legislation requires those persons who have a duty to ensure health and safety in the workplace to manage, or at least minimise, risks to workers so far as is reasonably practicable.
This duty applies to the person who is conducting a business or undertaking (a PCBU). A PCBU includes:
– employers
– corporations
– associations
– partnerships
– sole traders
– volunteer organisations that employ workers
The PCBU must ensure the health and safety of workers, and also has a duty of care in relation to customers and visitors to the workplace.
Workers include employees, volunteers, labour hire staff, apprentices, contractors, sub-contractors and work experience students. Workers have a duty to take reasonable care for their own safety whilst at work, and to ensure that their actions in the workplace do not detrimentally impact on the health and safety of others.
In order to satisfy the new legislative requirements, PCBUs should develop work health and safety policies and procedures. However developing a policy will not of itself ensure compliance with the WHS Act – PCBUs must ensure that workers are trained in work health & safety matters and comply with the strategies adopted by the PCBU.
Is your business compliant with the WHS legislation?
The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues from provision of written policies, advice regarding termination of employees and redundancy, contracts of employment and warning letters, to the application of the Modern Awards, because Helping You is Our Business.
Click here for more information on Rebecca Greenland.
There is a great deal of illegal downloading of copyright material via the internet worldwide. It has been going on for years. The copyright owners are in a terrific flap about it. They call it “theft”. There will be a great deal less of it, in Australia at least, if the copyright owners are successful in their appeal to the High Court in the case of Roadshow Films Pty Limited v iiNet Limited.
Films and other works the subject of copyright can be downloaded through unauthorised file sharing on the BIT Torrent system, the operation of which is pretty technical but the effect of which is that anyone with a computer and access to the internet can download and enjoy all manner of copyright protected works without paying a cent other than the subscription fee to the internet service provider.
Copyright owners are extremely unhappy about illegal downloading. This is understandable. Hollywood production houses pay millions of dollars for the rights to eg the latest Harry Potter and millions more to turn those rights into a film and bring it to the screen only to lose what countless 14 year olds would have paid to watch the movie at the cinema if they had not downloaded it illegally and watched it at home on their parents’ flat screen, possibly with surround sound, while eating popcorn and a packet of Jaffas.
In Roadshow Films, the Australian Federation Against Copyright Theft argued that iiNet was liable for the copyright infringement by its customers when they illegally downloaded films because iiNet had authorised the infringement. The complicated fortress of copyright and related legislation prohibits authorising infringement. iiNet knew its services were being used for downloading and did nothing to stop it by terminating accounts that had been identified to it. iiNet argued that it did not give express authority or invite its customers to do acts in breach of copyright. iiNet’s argument has been successful so far but the case has gone on appeal from the full bench of the Federal Court to the High Court. Plainly, there is a lot of money at stake for the copyright owners.
If the High Court makes internet service providers liable for illegal downloading, it will come to a crashing halt. If not, rumour has it that pirate hunters for the copyright owners can use the aptly named “bot crawler” to sneak through the back doors of illegal downloaders’ computers to catch them at it. Some may think it unacceptable to commit a crime to detect a crime. Watch this space because Helping You is Our Business.
As the year draws to a close, it is timely to commit to new goals for the coming year. As you spend time with family and loved ones this Christmas, we encourage you to consider estate planning as one of your goals for the coming year.
This could mean one of two things. It could mean making a will for the first time which is tailored to suit your personal and financial circumstances. Or updating your current will in case your circumstances have changed since the last time you made your will.
One recent case serves as a timely reminder that just as life does not standstill nor should your will be locked away in a drawer and forgotten. Your will needs to be reviewed and updated regularly to ensure it carries out your wishes.
The Deceased made a Will in 1959. She died some 40 years later. The estate of the deceased consisted principally of a house and a bank account.
The applicant in this case was the grandson of the deceased (the Plaintiff).
There was a very good relationship between the Plaintiff and his grandmother.
Having been left out of his grandmother’s will, the plaintiff claimed that for a period of twelve years he resided in the same house as the Deceased, that for at least the last four years of her life he was the principal carer of the Deceased, looking after every aspect of her daily routine, recognised by him receiving a carer’s pension. It was submitted that that care was undertaken at a considerable sacrifice to the Plaintiff, who has been subsequently disadvantaged. Further, that in consequence of the efforts and activities of the Plaintiff there was a substantial contribution by him to the conservation of the assets which comprise the estate of the Deceased. The Plaintiff submitted that those contributions to the personal and financial welfare of the Deceased were such as would cause him to be generally regarded as a natural object of the testamentary recognition of the Deceased.
Taking into account all of the circumstances of the case, the Court agreed.
In so doing the Court emphasised that an order for provision is not made as a reward for good conduct. Neither is such an order withheld as punishment for perceived bad conduct on the part of an applicant.
As one of your goals for 2012, we encourage you to put your affairs in order for the benefit of your loved ones and for your own peace of mind. At Everingham Solomons we have the expertise to assist you with all matters relating to Estate Planning, because Helping You is Our Business.
Click here for more information on Lesley McDonnell
With the festive season upon us it is important to be mindful of the laws relating to drink driving.
With 70 percent of drink drivers convicted in the local court having no previous criminal history, it seems clear that this is an offence which often catches law abiding people off guard.
It is important to remember that the limits of blood alcohol content (BAC) differ for different classes of driver.
The limit for Learner and Provisional drivers is zero. For drivers of public and heavy vehicles the BAC limit is 0.02. For ordinary licence holders the limit is 0.05.
Passengers acting as ‘supervisors’ to a learner driver can also be charged with exceeding the prescribed limit of alcohol content whilst acting as a supervisor. Being full licence holders, the supervising passenger must be at a BAC below 0.05. Such a case received some press coverage recently.
One mistake which often causes people to come before the local Magistrate, is a failure to monitor the number of standard drinks that have been consumed over a period. It is quite common for drivers to be charged with exceeding the prescribed limit of blood alcohol many hours or even the day after drinking.
The general rule of thumb to follow is that the body cleanses itself of one ‘standard drink’ each hour, although this is subject to a number of factors including the drinkers age, sex, weight and the like.
When calculating how long it will be before you are able to drive it is important to remember that each glass consumed by the drinker is not necessarily one ‘standard drink’. A ‘standard drink’ in Australia is defined as 12.5ml of pure alcohol. Many commercialized products hold more than one ‘standard drink’ in a single serving, so it is important to take note of the number of ‘standard drinks’ consumed and not, the number of cans or glasses of the beverage.
Take for example one ‘stubbie’ of full strength beer which typically contains 17.5 ml of alcohol or 1.4 standard drinks, but can vary depending on the brand and type of beer. Although a drinker might consume only two stubbies over a one hour period and expect to be able to legally drive, in fact they have consumed almost three ‘standard drinks’ and could be well above the legal limit of alcohol prescribed for driving.
It is important to note that the above calculations are general in nature. The way in which alcohol is absorbed by the body varies greatly between individuals and the advice provided above should not be relied on to calculate or estimate your BAC. The most certain way to avoid drink driving offences is to refrain from driving if you have consumed any alcohol whatsoever.
If you have any enquiries relating to drink driving please call Everingham Solomons Solicitors because Helping You is Our Business.
With holidays around the corner, it’s not surprising that many employees tend to lose their inhibitions at work-related end of year celebrations.
Employer Responsibilities
As part of their obligations, and to avoid the litigious pitfalls due to an employee’s inappropriate conduct, employers must take reasonable steps to mitigate their legal exposure and to avoid inappropriate workplace behaviour at the Christmas party, or any other work function
Practical Steps for Employers
Ten basic precautions employers can take include the following:
Ensure all policies and procedures are clear and that they are understood by all employees. A written reminder just prior to the function may assist to ensure employees are aware of the company’s expectations with regard to their behaviour.
Monitor the consumption of alcohol and ensure the venue ceases service if necessary. Also provide non-alcoholic beverages.
Have a designated senior manager who does not drink at the function to increase the level of vigilance and set a ‘lead by example’ approach.
Where there is alcohol, there should also be food. People become inebriated faster when consuming alcohol on an empty stomach.
Enquire about and, if reasonable, provide safe transportation arrangements from the venue, or make sure employees have suitable arrangements in place.
Make it clear when the event ends and remind employees that any ‘kick-on’ parties are subject to the same appropriate behaviour expectations.
Ensure that the entertainment at the event is not considered offensive.
Set guidelines for gift exchanges such as ‘Secret Santa’ to ensure they are not offensive, and set a dress code for the event to maintain the level of professionalism.
Should rumours circulate address them promptly, regardless of whether a formal complaint has been made.
If a complaint is made, investigate it immediately and thoroughly.
Finally remember, the festive season is the time to have some fun and reminisce on the year that was.
The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues because Helping You is Our Business.
All those involved in the design of structures such as architects, engineers and building designers are now required to practice “safe design” under the new work health and safety laws.
