AREAS OF PRACTICE
Litigation
DEFAMATION INSURANCE CLAIMS NEGLIGENCE CLAIMS SUPERANNUATION CLAIMS FAMILY PROVISION ACT CLAIMS
DEBT RECOVERY MOTOR VEHICLE ACCIDENTS VICTIM'S COMPENSATION
DEFAMATION
There is a limit on the material that can be published and where the
reputation of another person is injured, damages will be awarded.
There must be publication, which is a communication by one person to at
least one other person, apart from the person purportedly defamed.
A publication is defamatory if it conveys an imputation which damages a
person's character or standing.
Defamation laws apply to the media, conversations, private letters, emails
and internet chat.
Any person identified as the subject of a defamatory statement can sue.
Damages are awarded to compensate the defamed person for damage to
reputation, hurt feelings and economic loss.
Aggravated damages may also be awarded if the conduct of the publisher was
unjustifiable or improper.
Section 14B of the Limitation Act requires that proceedings must be
commenced within one year from the date of publication. In NSW the
relevant legislation is the Defamation Act 2005.
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INSURANCE CLAIMS
An insurer must act in good faith and
assess claims promptly, not delay paying claims without proper cause, not
refuse to pay claims without proper cause.
The District Court in Garcia v. CGU
Workers Compensation Pty Limited on 14 July 2006.
Failure to act in good faith may make the insurer liable as opposed to their insured.
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NEGLIGENCE CLAIMS
Negligence is the failure to exercise the
degree of care and skill that could reasonably be expected in the
circumstances from someone with the particular professions training, skill
and experience.
Section 5O of the Civil Liability Act sets out the criteria in determining the negligence of a professional person
and provides:
1) A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is
established that the professional acted in a manner that (at the time service was provided) was widely accepted in Australia by peer professional
opinion
as competent professional practice:
4) Peer professional opinion does not have to be universally accepted to be
considered widely accepted.
PROCEEDINGS MUST BE COMMENCED WITHIN 3 YEARS FROM THE DATE WHEN THE CAUSE OF ACTION AROSE.
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SUPERANNUATION CLAIMS
Grounds exist for early access to superannuation benefits and include severe financial hardship and
compassionate grounds. If a member is permanently incapacitated, all
the preserved benefits are payable.
There are strict time limits in which a claim must be lodged with the Trustee.
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FAMILY PROVISION ACT CLAIMS
A person, if they are an eligible person, can make an application under this Act to seek to alter the terms of a
deceased’s Will.
An eligible person includes:
1. The person’s spouse at the time of their death.
2. Someone with whom the person was living in a domestic relationship at the time of their death.
3. A child of the deceased person.
4. A former spouse of the deceased person.
5. A person who was wholly or partly dependent upon the deceased person and a member of the household.
An application under the Act must be made within eighteen months of the death of the deceased.
In determining the application, the Court will consider
· The character and conduct of the eligible person.
· Any contribution made by the eligible person towards the deceased’s property or welfare.
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DEBT RECOVERY
A claim to enforce a debt must be made within a period of six years.
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MOTOR VEHICLE ACCIDENTS
Obligations of drivers:
Rule 287 of the Australian Road Rules requires the following information to be given including:
Driver’s name and address
· Name and address of the vehicle’s owner
· Vehicle registration number, and any other details needed to identify the vehicle.
The particulars must be given to a Police Officer if someone is killed or injured, the vehicle is towed away or a
party declines to give particulars to the other driver.
A claim for personal injuries under the Motor Accident's Compensation Act requires that:
1. The accident be reported to the Police within 28 days.
2. A personal injury claim form be lodged within a period of six months.
3. Where liability is denied by the insurer, to commence proceedings within a period of three years.
Contributory Negligence:
Responsibility for an accident may be apportioned between the respective drivers and that apportionment of
contributory negligence will reduce the damages that would otherwise be payable.
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VICTIM'S COMPENSATION
Applications for compensation must be made within two years of the act of violence. The Victim's Compensation
Tribunal has power to extend the two year limitation period and frequently
does so in cases of sexual assault committed upon minors.
The maximum sum that can be awarded by the Tribunal is $50,000. The maximum amount of compensation for financial
loss as a result of an act of violence is $10,000. The maximum amount
for loss of personal effects is $1,000 and these amounts form part of the
overall maximum of $50,000, they are not additional payments.
Eligibility to claim:
· There must have been an act of violence.
· In the case of primary and secondary victims, they must have suffered an injury
listed in the schedule of compensable injuries:
Primary Victim includes a person:
· Injured as a direct result of a crime.
· Injured as a direct result of trying to stop someone from committing an act of
violence, helping or rescuing someone or arresting an offender.
Secondary Victim includes a person:
· Who sustains injury as a direct result of witnessing a crime against the primary
victim.
· Family member of a deceased primary victim.
If a person dies as a direct result of a crime, members of the immediate family
may apply for compensation and they include a spouse or defacto spouse, a
parent, guardian or step-parent, a child or
step-child, a brother, sister, step-brother or step-sister.
THE CLAIM MUST BE LODGED WITHIN OF 2 YEARS AFTER THE RELEVANT ACT OF VIOLENCE.
This publication is provided by Higgins Lawyers to its clients for their information on a complementary basis. It represents a brief summary of the law applicable as at March 2009 and should not be relied on as a definitive or complete statement of the relevant laws. Readers should not act or rely on this information without first seeking our professional advice concerning their particular circumstances.
