Business & Employment
Should I get a lawyer to review my commercial agreements?
Getting legal advice about a commercial contract or agreement may depend on the size of the agreement and how much risk is involved.
For example, if you operate a bakery, you may have no issues in agreeing with your flour supplier for the exclusive supply of all your flour for the next six months. You know your market, and you know how to spot a great deal.
On the other hand, an agreement to provide cleaning services to a large corporation with many sites may require your business to work exclusively for one client. You’ll need legal advice to discover and assess any risks before you put all your eggs in one basket.
Likewise, if a specialised legal area covers the agreement, you’ll need specialist advice. For example, if you’re agreeing to sell your newly developed app to a third party, you’ll need expert intellectual property advice. Or, if you’re entering into a commercial lease agreement, you’ll need advice about your rights and obligations for renewal and end of lease.
What if I have a business partnership with no formal agreement?
While your partnership may be operating perfectly well without a formal agreement, that may not always be the case.
For example, if one partner dies, the Partnership Act may require that the partnership is dissolved, rather than allowing the surviving partner to explore other options.
If you don’t have a formal partnership agreement, we recommend legal advice so that you’re aware of all the risks of your situation. It’s also worthwhile exploring whether it’s possible to make a formal agreement.
How do I end a business agreement?
Bringing a business agreement to an end can be a major decision.
How you go about doing this depends on the terms of the agreement and whether you have a written contract (or other document), or whether the terms are informal: for example, a verbal agreement or a series of emails.
If you wish to bring a business agreement to an end, contact us. We’ll review your situation and give you advice that’s best for you and your business.
Family Law
My divorce from my previous marriage isn’t finalised. Can I marry my new partner in the meantime?
Marriage laws in Australia require that if you’ve been married in the past, you must produce documents that show that you’re no longer married. This will be a divorce order issued by a Court, or if your previous spouse passed away, a death certificate.
In most cases, you can’t marry again until you’ve provided this evidence to the Australian Government. If you can’t locate these documents, contact us for a no obligation first interview and we will help you sort it out.
I was married overseas. Is my marriage valid in Australia?
Usually, foreign marriages will be valid in Australia if they satisfy two criteria:
- Proper celebration of the marriage according to the laws of the other country; and
- They must not offend Australian marriage laws, meaning that both parties must be of the legal age, they must have freely consented to the marriage, neither one is married to anyone else, and their relationship isn’t prohibited (for example, intending to marry a sibling or other close family member)
I married my same-sex spouse overseas before marriage equality laws came into effect. Is my marriage valid in Australia.
If you were married in accordance with the laws of another country, your marriage would probably be valid under Australian law. However, you will need to check that other legal documents are valid if you made them before the new marriage laws. For example, Wills, binding death nominations (for superannuation), insurance beneficiary nominations and other nominations.
You and your spouse should seek legal advice about this as soon as possible.
What happens if my marriage doesn’t meet Australian legal requirements?
Whether you were married in Australia or overseas, if your marriage doesn’t meet Australian legal requirements, annulment is possible. An annulment is a court order declaring the marriage invalid, and either party is free to marry again. But if you need orders about property or children, we can help you apply to a court for those orders.
Either party can ask a court to annul a marriage. The applicant must prove that the marriage offended Australian marriage laws, for example, they were forced into the marriage, they were too young to marry, the celebrant wasn’t properly registered, one of the parties was already married, or the couple was in a prohibited relationship.
If you are faced with the possibility of an annulment, you should seek legal advice from an experienced marriage annulment lawyer.
How long does a parenting order last?
Parenting orders remain until the child turns 18 years old, they are adopted, marry, or commence a de facto relationship. The orders don’t change unless a party applies to a court for a variation.
Can a parenting order be changed?
Courts are usually reluctant to vary orders unless both parents consent, so there must be an excellent reason. This may include changes, or proposed changes, to family circumstances which make the Orders unworkable or that place the child at risk of harm. But if one party isn’t complying with the orders, the other party can apply to the court for enforcement.
Parenting orders are a highly complex and sensitive area of family law. We appreciate the difficulties of the process and the need for sensitivity and understanding. We’re also experts in parenting orders. Contact us to find out more and to arrange your obligation free first interview.
Do I need permission to relocate with my children?
If you’re planning to relocate, try and discuss the issue with your former partner. You may be able to reach an agreement and then consent to vary any court orders.
Relocation is a significant change in the lives of your children, whether it’s across the city, to a regional area, interstate or abroad.
If there are parenting orders in place, you will need to seek permission from the other parent (or the court if they refuse) to relocate. If the relocation is likely to cause significant disruption to the amount or quality of time that the other parent can spend with the children, the court may not allow you to relocate.
Relocation is often a complicated issue. It’s best to seek legal advice to work out your options and how to approach it with your former partner.
How do I stop my former partner from taking my child overseas?
We can help you apply to a court for an order that prevents a passport being issued to your child, or that prevents your child from being taken out of the country.
If your former partner wants to take your children overseas, you may be reluctant to agree, especially if there’s a risk or suspicion that the children won’t return. Some jurisdictions may not enforce Australian court orders, which can also cause concern. If you’re worried about your children being taken overseas without your permission, you’ll need urgent legal advice. We can help you apply to a court for an order that prevents a passport being issued to your child, or that prevents your child from being taken out of the country.
How do I ensure that I can spend Christmas and school holidays with my children?
The summer school holidays are an important time of year for children, especially school children. The extended break is an opportunity to spend more quality time with parents, especially after separation or divorce. It’s no coincidence that the summer holidays can attract more conflict than any other time of year.’
If you have a parenting plan in place but no consent orders, it’s worth considering applying for orders to ensure you get adequate time with your children over the summer. The lead-up to Christmas is the busiest time of year for courts making these orders, so you’ll need to consult with us at least a few months in advance.
Does my child need an Independent Children’s Lawyer?
Most of the time, it’s not necessary to appoint an Independent Children’s Lawyer (ICL). However, a court will make an appointment in some situations.
These include:
- Where there may be abuse or neglect
- Where there is significant conflict between the parents
- Where older children have indicated how they want to divide their time between the parents
- Where there may have been family violence
- Any party can apply to a court to appoint an ICL. And even if the parties don’t apply, a court can appoint an ICL if it thinks the children (and the court) would benefit from an honest broker.
The primary role of the ICL is to ensure the child’s best interests are represented and taken into account. As part of our family law team, we have a highly experienced Independent Children’s Lawyer who can provide you with further information about the role of ICLs.
What are my de facto relationship entitlements?
Provided that you lived with your former partner for at least two years on a genuine domestic basis or otherwise qualify as a de facto relationship under the Family Law Act 1975, your entitlements to the property of the relationship will be worked out using a four-stage test established by the Court. We are experts in implementing this test to provide you advice on your entitlements which are assessed on a case-by-case basis. Contact us to find out more.
Will I get to keep my pet?
You may love your pet like one of your children, but family law treats pets as personal property. There are no custody or visitation rights.
They will form part of a property settlement, just like jewellery and other valuables. We can help you settle any pet issues with your former partner.
Will my inheritance form part of the property settlement?
If you inherit money or assets before separation, the law may consider this a financial contribution by you to the relationship.
If you inherit after separation, you may have a convincing argument that you should be able to keep the whole inheritance.
Inheritance laws will apply. How those laws will affect your situation will depend on whether you’re married or in a de facto relationship. If it’s likely that you or your former partner will inherit from a deceased estate, it’s worth getting legal advice to work out where you stand.
How long does it take?
Your family law mediation can be held within days of your first enquiry if that is convenient for all parties. Your family law mediation can be arranged for a half day, a full day, or several sessions, depending on the number and complexity of the issues in dispute.
Do I have to be in the same room as my partner?
If you are uncomfortable or feel unsafe we will ensure that you do not need to be in the same room as your partner. This can include by arranging “shuttle mediations” which allow you to resolve your dispute without coming into contact with your partner or electronic court hearings so you do not need to be present in person.
While there are some occasions where the Court may Order you to be present in person in the same Court room as your partner we will ensure safety plans are in place for you and that these occasions are minimal.
Are there any circumstances when a minimum time requirement for cohabitation won’t apply?
In some circumstances, a court may waive minimum time thresholds, including:
- The parties have a child or children together
- One party has made significant financial or non-financial contributions, and they would suffer a serious injustice if the time limit were not waived
We’ll help you work through these concerns regardless of how long you were living together.
What is a post-nuptial agreement?
Post-nuptial agreements are BFAs that a couple makes during marriage. They’re not as common as pre-nuptial agreements and are often used because the financial position of one or both parties has changed significantly since marrying.
They may also:
- Protect one partner from debts and other liabilities if the other partner is starting a business
- Ensure a share of the business for one partner
- Separate an inheritance or another financial windfall from the assets of the relationship
- Protect the interests of one partner if they have used separate property to buy the marital home.
Can a BFA be terminated?
If both parties agree and in specific circumstances, a BFA can be terminated. However, it must be done in writing through a Termination Agreement or a new BFA. We can help and guide your through this process.
The Family Court will terminate or set aside BFA consent orders only in limited circumstances. For example:
- If one party fails to disclose assets or business interests
- If the needs of a child of the relationship have changed significantly, causing hardship for one of the parties.
- If one party was forced to enter into the agreement
- If one or both parties didn’t receive independent legal advice before agreeing
- If there are no consent orders, contract law will apply. The parties can agree to terminate the BFA. Failing that, principles of fraud, duress, or mistake may apply.
If you believe there’s an issue with your BFA, you’ll need to speak to a family lawyer as soon as possible.
How can I update my BFA?
If your BFA needs to be updated, for example, if spousal maintenance is increased or decreased, a new BFA must be made after termination of the existing BFA.
Both parties must agree. The parties must receive independent legal advice before termination.
Is it always the man who pays Spousal Maintenance?
It doesn’t matter whether the person making the payments is male or female.
Spousal maintenance is designed to help with necessary living expenses. It’s for people who don’t or can’t meet these expenses without help from their former partner.
It will only be awarded to one party if the other party can afford to pay it, considering their child support obligations as well as any property settlement agreement.
Is it essential to be able to prove the date of separation?
If you and your former partner can’t agree on the date of separation, you’ll need proof. There may be documents that will assist with this, for example, utility accounts and bank accounts being changed to separate names, signing a lease for rental accommodation, or any witnesses to you or your partner moving out of the home.
Can the amount of Spousal Maintenance be changed if my circumstances change?
A spousal maintenance order can be changed if there is a change in your financial circumstances. Speak to us as soon as possible if you experience a significant life change; for example, you lose your job and are struggling to find new work, or if you’re diagnosed with a serious illness.
What happens if I start a new relationship?
A new relationship can impact a parties entitlement for property settlement and spousal maintenance. For instance, the Court may reassess maintenance payments if either party remarries or establishes a de facto relationship with another partner.
Often, this means that spousal maintenance payments will cease. In some rare circumstances, if your financial situation becomes worse when you re-partner or re-marry, the Court may order a continuation of spousal maintenance. We encourage you to always seek advice if you are planning to start a serious relationship but especially if you have not yet completed your financial settlement from a previous relationship.
When does spousal maintenance end?
A Family Court spousal maintenance order will usually cease payments in one of the following circumstances:
- When there’s an event (for example, the person receiving payments gets a regular income)
- By a certain date
- At the end of hearings in the Family Court for property settlement, financial agreement, child support or another issue
- When one party dies
- When one party remarries or starts a new de facto relationship
If you’re concerned about your payments coming to an end, or any aspect of your obligations to pay spousal maintenance, contact us for advice.
What happens if the other party doesn’t comply with our Court Orders?
If one party isn’t complying with the Orders, the other party can apply to the Court for enforcement. Whether that enforcement application will be successful and the penalty the Court may impose will depend on the type and severity of the breach and whether, for parenting orders, there was a reasonable excuse for a breach.
Enforcing Orders is a complex area of family law. We appreciate the difficulties of the process and the need for sensitivity and understanding. Contact us to find out more.
Motor Vehicle Accidents
What is the MAC?
The MAC is the Motor Accident Commission of South Australia. It was responsible for CTP insurance claims for accidents that occurred before 1 July 2016. CTP insurance is now the responsibility of various private insurers. MAC continues to be responsible for road safety education, research and projects, but no longer has an insurance division for more recent claims. If your accident was before 1 July 2016, MAC will be the insurer responsible for your claim. From 1 July 2019, MAC ceased to exist.
Who is my CTP Insurer?
From 1 July 2016, five insurers have taken over CTP insurance in South Australia: Allianz, AAMI, QBE, NRMA (SGIC) and Youi. Every driver with CTP insurance is allocated an insurer. Your vehicle registration papers include the name of your allocated insurer. You can also contact the CTP Personal Injury Helpline on 1300 303 558 for more information or review via the SA Gov Compulsory Third Party (CTP) Insurer Search at EzyReg – CTP Insurer Search
What happens if I had a motor vehicle accident in another state or territory?
Each state and territory has laws about motor accident compensation. The laws of the state or territory in which the accident occurred will apply to your claim, and they may be different from South Australian laws, including how much you can claim and for what. If you have been injured in a motor vehicle accident in another state or territory, it may be best to seek legal advice from a lawyer based in the relevant state or territory.
What do I need to prove to be able to claim compensation?
To successfully claim compensation, you must establish the motor vehicle accident occurred due to the negligent actions or omissions of another driver or the motor vehicle’s owner. This means that driver or owner failed to take reasonable care when they had an obligation so to do. You must also have evidence of your injuries and expenses; for example, doctors’ reports, receipts for medical invoices, x-rays and photographs. We’ll tell you what documents we need to determine whether negligence caused the accident.
Can I claim compensation for property damage?
Yes, you can, although CTP insurance only covers personal injuries. Property damage includes damage to your vehicle, a wrecked bike or damage to a truck’s load. Property damage can be claimed against the driver at fault for the accident (which they may hold insurance for) or against your own insurance (in the event you have full/comprehensive insurance cover for your vehicle). There may be time limits that apply to claiming compensation for property damage.
What type of medical expenses are paid?
Payable medical expenses include those that are directly related to your injury, such as surgery, x-rays and other medical tests. You may also claim for medical-related costs, such as travel and accommodation if it’s necessary for you to travel to receive treatment. You may also claim for therapeutic aids and anything else you need for rehabilitation, including domestic assistance, home modifications and treatments such as massage, gymnasium and hydrotherapy.
Workers Compensation
I’m a casual employee. Am I eligible to make a Workers’ Compensation claim?
Under workers’ Compensation law, a worker can claim compensation for an injury arising out of, or in the course of, work. The term “worker” is broad and includes permanent employees, casual employees, some independent contractors and some categories of volunteers. We will check your status to determine whether you’re eligible to claim.
What does it mean to be “at work”?
Under workers’ Compensation law, an injury must have happened during work, or whilst doing something sufficiently connected with work to attract compensation. This may sometimes include travelling between workplaces, or for off-site meetings, or attend social functions associated with work.
How do I make a claim?
If you’re injured because of an accident at work, you need to notify your employer immediately. You then have six months to make a claim for compensation – in practical terms, this means that if you want to claim compensation for a medical expense, you have six months from the date the medical expense was incurred to claim compensation for that medical expense.
To make a claim for compensation, you must:
- Complete a ReturnToWorkSA Claim Form (which you can get from your employer or online);
- Attend a doctor to obtain a ReturnToWorkSA Work Capacity Certificate.
- Submit the Claim Form and Work Capacity Certificate to your employer.
Your employer is required to provide the Claim Form and Work Capacity Certificate to their workers compensation insurer (called a “Claims Agent”).
The Claims Agent will then investigate the claim and make a decision to accept or reject the claim. The decision must be provided in writing (in a document called a “Determination”).
If the Determination says your claim is rejected (or “not accepted”), or you disagree with the terms of the acceptance, you can apply to the South Australian Employment Tribunal to review the Determination.
Any Application for Review must be filed with the Tribunal within one month of you receiving the Determination to be “in time”. You can get an extension of time to lodge an Application for Review (if it has been more than one month since you received the Determination).
What is income support?
If your injuries leave you with a restricted capacity for your normal work duties that results in a loss of income, you may be entitled to income support.
Income support is paid on a weekly basis (often called “weekly payments”), and is based on the difference between your normal earnings before the injury (called “average weekly earnings”) and your actual weekly earnings following the injury.
In most cases, an injured worker will only be entitled to income support for a period of up to two (2) years from the date of the work injury (or from the date they first missed work due to incapacity caused by the work injury).
If you think your income support/weekly payments are not being paid at the right amount, you should seek legal advice as soon as possible, as you may need to make an Application for Review to the South Australian Employment Tribunal (and time limits apply in this regard).
What if I do not make a full recovery from my work injury and have a permanent impairment?
If you do not enjoy a full recovery from your work injury, and suffer a permanent impairment, you may be entitled to lump sum compensation.
Lump sum compensation is only payable for permanent impairment arising from physical injuries, and you cannot claim lump sum compensation for permanent impairment arising from a non-physical (psychological or psychiatric) injury.
The lump sum compensation amount is based on the degree of Whole Person Impairment arising from the work injury, which must be assessed in accordance with the Return to Work Scheme Impairment Assessment Guidelines.
In most cases, a worker cannot ask for an assessment of their injury (for the purposes of claiming lump sum compensation) until their medical treatment has finished and their condition has reached “Maximum Medical Improvement”.
The process involved in assessment permanent impairment can be complicated, and the final monetary outcome can vary substantially depending on a number of factors.
An injured worker’s entitlement to lump sum compensation is an important part of their claim. In some cases, it is the only real “compensation” injured workers receive for their work injury.
We would recommend seeking legal advice before making a claim for lump sum compensation.
Can I return to work even if I’m still affected by my injury?
An employer should provide you with suitable employment if practicable. This may mean modified or alternative work duties.
If your employer is not offering suitable employment, but you think they can, you can make a formal request to your employer for the provision of suitable employment. If they do not offer suitable employment in response to your formal request, you can apply for the South Australian Employment Tribunal for an order requiring your employer to provide you with suitable employment.
Medical Negligence
Can any medical error be a case of negligence?
Sometimes things can go wrong, even if the health practitioner has been careful. That’s why it’s common to warn patients about the risks before a procedure or treatment. Entitlement to compensation arises when we can show that the health practitioner caused your injury because they failed to meet reasonable professional standards. We’ll also need to tell the health practitioner’s insurer about any pre-existing medical conditions you had, and whether they have had any impact on your current injury.
Will I need more than one expert opinion?
Medical malpractice claims can be complicated, and so to work out whether you have a reasonable prospect of success, we will need to gather as much evidence as possible and piece it all together. This can include medical reports, test results, proof of income and living expenses. We may seek second opinions from medical specialists. While this may be expensive, it can also help to clarify how to proceed and your chances of success.
Who owes me a duty of care? The doctor or the hospital?
If a hospital employs a doctor, nurse or another health professional, it may be liable for a medical negligence injury because the health professional was acting as its agent. This will depend on the arrangement that the health professional has with the hospital. If your injury happened in a hospital, we will take a close look at the circumstances to work out whether to pursue a claim against the health professional, the hospital, or both.
Who is responsible for paying compensation?
If your claim settles and you receive a settlement payment, or it goes all the way to a Court hearing and you’re awarded compensation, the payments will almost always come from one source: the insurer. Professional indemnity insurance is usually required for health practitioners, which often covers claims of medical negligence.
In what types of claims does DBH have experience?
We act for clients in all aspects of medical negligence claims, and our lawyers have expertise in acting for clients with significant injuries, such as strokes, amputations, birth injuries and brain damage.We also manage complex claims, including claims against hospitals, and are well-versed in complex medical conditions and technologies.
Disability Claims (TPD)
How do I find out whether I have TPD insurance?
If you have superannuation, it’s likely that you have TPD insurance. You can contact your superannuation fund to find out. If you’re employed, it’s a legal requirement that your employer pays super contributions on your behalf. You may also have separate cover for income protection insurance, paying premiums directly to an insurance company for the cover. Income protection insurance usually covers TPD. You can find out more by contacting your insurer. We can also help you find any lost super funds.
If I have more than one super fund, can I make multiple claims for TPD?
In some circumstances, you may be able to make multiple claims on multiple policies; however, this isn’t straightforward. Sometimes you can only claim under one policy, and as it’s possible that one policy is likely to offer a bigger pay-out than another policy, we recommend that you seek advice from specialist DBH lawyers before deciding how to claim. You should also seek financial and legal advice about rolling over your superannuation policies into one policy.
If I’ve made a different type of injury claim, does that disqualify me from making a TPD claim?
You may have claimed for Workers’ Compensation, a motor vehicle accident, or another type of claim for the same injuries. Even so, you should still be able to make a TPD claim. Our specialist TPD lawyers can advise you as to whether you are eligible.
Do I need a lawyer to represent me when claiming TPD insurance?
It’s not essential to have legal representation when you’re making a disability claim. However, sometimes an insurer will look for a reason not to pay a TPD insurance claim. A rejection can be difficult and expensive to overcome, so it’s safer to engage a lawyer to collect all the evidence, assess it and to work out the best approach before submitting the claim.
When should I make my TPD claim?
The timing of your claim will often depend on when your injuries have stabilised, and when your long-term recovery prospects are known. This may take months or even years. Usually, there aren’t time limits on making claims. However, there can be exceptions and so the sooner you make a claim, the better off you’ll be.
Birth Injuries
Is there a time limit for making a birthing injury claim?
South Australian laws allow up to three years from the date of an injury for people to make an injury claim. This time limit includes mothers who have suffered birth trauma. However, babies who suffer injuries have until their 21st birthday to claim. This is usually enough time for the injuries to stabilise.
There are some situations in which it’s not possible for you to claim within these time limits (known as limitation periods). That’s why we recommend that you come in and see us for an obligation free first interview, even if you’re out of time.
Do I need a specialist birth injury lawyer?
Although birth trauma claims form part of medical negligence claims, there are some good reasons why a specialised birth injury lawyer can represent you more effectively. A good birth injury lawyer will have a deep understanding of birth injury issues such as brain injury. They also need to be able to work out the point at which something went wrong to cause the injury. For example, there was a complication with the baby’s heart rate, or something was overlooked during the monitoring of labour. Whatever it was, the ability of the lawyer to pinpoint the issue often makes a big difference to the cost, speed and success of birth injury claims.
How do I start?
The first step is to book an obligation free first appointment with one of our lawyers. We need to hear your story and work out if you have a claim. First appointments can often last for two to three hours, but no matter how long it lasts, there will be no charge if you decide not to go ahead. If you do go ahead, there will be a charge but it will not be payable until the end of the case and only if you are successful in receiving compensation.
What costs should I expect?
We will offer you a no win, no fee arrangement. This means that if you don’t receive compensation, we don’t bill you. Because we spend a good deal of time with you at the first interview, we can work out whether it’s likely that you’ll receive compensation from the insurer, usually as a settlement payment. If you are successful, the insurer usually pays most of our legal costs. This arrangement doesn’t include disbursements, which are out-of-pocket expenses for things such as expert medical report fees.
Is there funding I can apply for to help with the cost of my claim?
Because we know that disbursements alone can add up, we can help you secure funding from a third party provider. During our “obligation free” first interview, we can help you make an application, and we’ll tell you whether we think your funding application will be successful.
Hearing Loss
What evidence do I need to show that I have a hearing loss claim?
You will need an audiogram (hearing test) from an Audiologist to show that you have hearing loss that’s consistent with noise exposure.
If you do not have an audiogram, we can put you in touch with an Audiologist who can perform the hearing test for you (normally free of charge).
In addition to an audiogram (hearing test), we will also need documents that show that you worked in noisy environments. They may include:
- Tax returns
- Superannuation records
- Centrelink documents
- Photographs of you at work
- References or other certificates (for example, certificates of commendation)
Can I claim for tinnitus?
If your work environment caused your tinnitus, it’s possible to claim medical expenses such as hearing aids which are used to mask the tinnitus. If you also have NIHL, the insurer may accept a claim for tinnitus. This will likely increase the lump sum amount of industrial hearing loss compensation to which you’re entitled.
We’ll assist you with a claim for tinnitus if you also have NIHL, but please note that our no win no fee arrangements don’t apply to tinnitus injuries unless there is also a diagnosis of NIHL.
I worked in more than one noisy environment. Which employer is responsible?
South Australian laws require that hearing loss claims are made against the most recent noisy workplace. Once we’ve discussed your injury and seen your documents, we’ll work this out for you.
How do I claim if my employer no longer exists?
If your former employer has gone out of business, merged with another organisation, or for any other reason no longer exists, ReturnToWorkSA will take on liability for your claim. In other words, ReturnToWorkSA will be legally responsible for paying any compensation to which you’re entitled.
If I make an industrial hearing loss compensation claim, am I prevented from claiming other types of Workers’ Compensation?
You can claim other types of Workers’ Compensation, even if you receive a lump sum compensation payment for industrial hearing loss.
Class Actions
Should I consider class action representation?
When many people suffer because of an organisation’s wrongdoing, it’s only fair to hold it accountable. This can also ensure that the organisation changes its operations and attitudes.
Taking private legal action often isn’t an option because it’s a significant financial risk, especially if you’re unsure whether your claim will be successful. Class actions may provide a more cost-effective legal solution and a quicker resolution.
Is there a difference between class actions under South Australian laws and those under federal laws?
Yes, there are some differences. People involved in class action lawsuits under federal laws must “opt-out” of the action if they want to take their own legal action against the organisation. Whether your claim falls under federal or state laws will depend on the type of claim. For example, state laws usually apply to claims for injuries.
When we know your circumstances, we can advise whether federal or state laws apply, and what this means for your claim.
What does it mean to opt-in or opt-out of a class action?
Once a class action commences, federal laws say that any person who may have the same or a similar claim from the same circumstances must be part of the class of people.
This is regardless of whether they have made a legal claim. If they do make a claim (and there’s no requirement for them to do so), they’re included in the class. If they don’t want to be involved in the class action, they must “opt-out,” meaning that they must tell the Court that they don’t want to be included. If you choose not to opt-out of a class action, any Court judgement will apply to you. We can give you advice about whether opting-out is right for you and we can opt-out on your behalf if you wish.
How does a class action commence?
Under federal laws, a class action commences if there are at least seven people making claims arising from the same or similar circumstances, and there is an important legal issue or fact linking the claims.
South Australian class action rules say that there must be a group of people with a common interest. There’s no minimum number of people required to bring the action.
We will discuss the commencement of a class action with you, including tailoring a strategy that best suits your needs, whether to claim in a state or federal court, and how we will locate other potential claimants.
Do I need to find people who’ve had a similar experience?
You don’t need to find other people to join the class action. We can do this for you.
However, it’s useful for us to get as much information as possible from you, as this can help us search for other claimants.
Are there disadvantages in getting involved in a class action?
While class actions can be cost and time effective for claimants, it’s true that there are some disadvantages.
For example, any settlement or court judgement won’t be tailored to your unique needs.
Most likely, you’ll be assessed as falling into a category (based on the extent of your injuries or loss), and payment of the judgement or settlement will be according to the allocated amount in that category. In some cases, it’s possible that the amount that you receive will be less than if you claimed on your own. On the other hand, because your legal fees are significantly less in a class action, you may not be any more out of pocket than if you opted to go it alone.
Other disadvantages include your lawyers having less time to spend considering your individual needs as they are acting on behalf of the group, and you may have less say in the conduct of the case because you are part of a group.
We will discuss the advantages and disadvantages of joining a class action at your no obligation first interview with us.
I can’t travel to Adelaide to see my class action lawyer at DBH Lawyers. Can I still join a class action?
Yes, you can. If you can’t get to one of our office locations in the Adelaide metropolitan area, we can arrange to meet with you via Skype or telephone call.
If there is a group of people in the same regional area, we will often make the trip to visit all of you at once for face-to-face meetings.
Public Liability
What is meant by the terms “duty of care” and “negligence”?
These terms are two key legal principles in the law of public liability. “Duty of care” means that the owner or occupier of the land had a responsibility to take reasonable steps to keep it safe for users.
If the owner/occupier has failed to take reasonable steps and you are injured due to that failure, they have breached their duty of care. “Negligence” is another term used to describe a circumstance in what a duty of care has been breached.
What if the incident was partly my fault?
If the incident was partly your fault you may still be able to claim compensation, but your compensation entitlement may be reduced to account for your actions or omissions (in so far as they contributed to the incident).
This principle is known as contributory negligence.
You will still need to establish another person, company or government department has breached their duty of care to you.
We can provide advice on whether there may be contributory negligence, and the effect it may have on your entitlement to compensation.
Who is liable to pay my compensation award?
The person, company or government department who owed you a duty of care, and breached the duty of care (leading to your injury) is liable (or responsible) to pay your compensation award.
In most cases, the relevant person, company or government department will have “public liability” insurance that will indemnify them in relation to a claim.
In practical terms, this means that if your claim is successful, the relevant insurance company will pay the compensation award.
What if the liable party does not have insurance?
If there’s no policy of public liability insurance in place, the relevant person, company or government department will need to pay the compensation award from their own funds.
If they do not have sufficient funds to pay the compensation award, you may not receive compensation for your injury, even if you can establish they have breached their duty of care.
Can I make a public liability compensation claim if I’m injured at work?
If the negligent person or entity is your employer, you will not be able to make a public liability claim, and your ability to seek compensation for your injuries will be limited to a workers compensation claim.
If the negligent person or entity is not your employer, you may be able to make a public liability claim, in addition to any workers compensation claim.
If you think you may have both a public liability claim and a workers compensation claim for your injury, we would recommend seeking legal advice with a view to maximising your compensation entitlement. At DBH Lawyers, we have extensive experience with these types of claims, and can help you figure out the best way forward.
Wills & Estates
How long does it take to make a Will?
The length of time required to make a Will depends on:
- Whether you’re able to locate all your assets and how much detail you can give us about them;
- Whether you can provide full names and addresses of all your beneficiaries and their relationships to you;
- Whether you’ve considered who gets what, should any of your beneficiaries die;
- Whether you’ve considered who will be your executor, and who will step in as executor, should your first choice be unable to act;
- Whether you have any business assets and how you wish to deal with them;
- Whether it’s necessary to set up a family trust to protect your assets;
- Whether we need to look at ways to minimise potential tax liabilities;
- Whether there’s any possibility of a claim being made on your estate by a person who thinks they should have been a beneficiary, or by a beneficiary who says they should have received more.
For simple Wills, it usually takes one to two weeks to make a Will, but it can be prepared more urgently if required.
Can I make my own Will using a do-it-yourself Will kit?
Will kits, otherwise known as DIY Wills, are popular because testators don’t have the legal costs of lawyers drafting their Wills. But many people don’t realise how specific the legal requirements are, especially when it comes to signing and witnessing a Will. And some Will kits are sold Australia-wide, even though each Australian State and Territory has its own laws for making a Will.
If a DIY Will is invalid, it’s often not discovered until after the testator’s death. Sorting it out may amount to thousands of dollars in legal fees, paid from the estate. This means that there’s less for the beneficiaries. So, if you’re not extremely careful when using a DIY Will kit, things can go pear-shaped. On the other hand, getting a lawyer to draft your Will may cost you just a few hundred dollars. It’s worth considering.
When should I update my Will?
It’s wise to update your Will whenever there’s a significant life change.
For example:
- You have a baby or adopt a child
- Your partner or spouse dies
- You separate or divorce
- You marry (because marrying will invalidate any prior Will)
- You’re in a de facto relationship
- You move to a new address
- You buy or sell a significant asset
Even if there’s no big change in your life, we recommend reviewing your Will every three to five years.
What are Powers of Attorney and Advance Care Directives?
Power of Attorney:
A Power of Attorney is a document that grants someone else (your attorney) the ability to make legal or financial decisions on your behalf, should you be unable to do so. Your attorney can also sign documents on your behalf. Powers of Attorney are commonly activated when a person is overseas or lacking mental capacity. Your attorney is usually someone you know and trust.
Advance Care Directive:
An Advance Care Directive is a legal document appointing someone to make personal, medical and lifestyle decisions on your behalf, should you be unable to do so. This person is known as your Substitute Decision Maker and should be someone you know and trust. It can’t be someone who is paid to care for you (such as your doctor, nurse or a professional paid carer).
The Substitute Decision Maker must act in your best interests, consider your wishes and if possible, make the same decision that you would have made.
We recommend that you instruct us to draft the following documents at the same time as you make a Will:
- Power of Attorney
- Advance Care Directive
We can draft these documents for you and will provide more information when you book an appointment to make your Will.
What does an executor do?
An executor is the person responsible for dealing with your estate after you’ve passed away. For your Will to be valid, you must nominate a person to be the executor of your estate.
Executors must locate all the assets of the estate. Some may be sold to pay off any debts. Payment of all debts must occur before finalising the estate. Any remaining assets are then distributed to the beneficiaries according to the terms of the Will.
Executors must act with diligence, and they must finalise the estate as soon as possible. The executor must not be negligent or steal from the estate.
What is probate?
This is the process of registering the Will with the Court. It authorises the executor to deal with the assets and debts of the estate and distribute to the beneficiaries.
Where a person has died and there is a valid Will, the executor may need to apply to the Supreme Court for a grant of probate. This is the process of registering the Will with the Court. Probate is a letter from the Court. It authorises the executor to deal with the assets and debts of the estate and distribute to the beneficiaries according to the terms of the Will. A grant of probate is often an essential step in the process of distributing an estate. Without it, an executor may not be able to legally deal with the estate.
If I made a Will in another country, is it valid in South Australia?
Let’s say you were living in another country and you made a Will while you were living there. If made according to the laws of that country, often it will be recognised by South Australian law.
However, we recommend that you make a new Will as soon as you can after relocating to South Australia. This may make it simpler to distribute your estate, should you happen to pass away.
What happens to my Will after it’s signed?
You can choose what happens to your Will after it’s signed, dated and witnessed.
- We can store it on your behalf in our water-proof, fire-proof document storage room.
- We can also register it with the Law Society of South Australia’s Wills Register, which may help your executor find the original document if necessary.
- Alternatively, you may wish to store it in a safety deposit box at a bank or other institution.
The original document needs to be secure and safe from damage. You should keep a copy for yourself, and provide copies to your executors with instructions about where to find the original Will.
How do I find the Will?
Wills may be found amongst important papers, at banks, in safety deposit boxes, with their lawyer or accountant, or even with the Public Trustee.
Sometimes, it’s a challenge to work out whether the deceased had a Will and where to find it. The deceased’s computer may have some clues about the location of the Will. Or there may be invoices for legal fees that indicate a Will.
The Law Society has a Wills Register that records the location of many original Wills in South Australia. It’s often a good source of information.
We’ve helped many clients locate original Wills. We can help you too. If you’re struggling to find a Will, contact us to discuss your situation.
What happens to the superannuation of a deceased person?
Superannuation doesn’t form part of a deceased estate.
Many people believe they can deal with their superannuation in their Will, but the truth is that a superannuation fund may not distribute death benefits to the estate.
Without a valid Binding Death Benefit Nomination, the trustee of your superannuation fund has a discretion: they can decide whether to pay your superannuation entitlements to your estate or to any of your dependents, for example, your spouse or children.
So, your dependents may need to make a claim for a superannuation death benefit and prove that they were dependent upon you at the time of your death. This is why it’s usually a good idea to have made a Binding Death Benefit Nomination. It may save your loved ones a lot of time and heartache after you’ve passed away.
If you have any questions about superannuation death benefits and your dependents, we can help.
How much will it cost me to challenge a Will or deceased estate?
In some cases, the deceased estate pays the legal costs. But bear in mind that if legal costs come out of the estate, there will ultimately be less for you.
In South Australia, it’s becoming more common for parties to pay their own legal costs for inheritance claims. This removes some of the protection from legal costs that claimants previously enjoyed, but it also deters people who may not have a genuine claim.
You’ll need to carefully consider making a challenge. For example, how likely is it that you’ll be successful? Can you negotiate a settlement with the beneficiaries?
We recommend legal advice from experienced Will dispute lawyers. Our team can help.
Who is a domestic partner?
Domestic partnerships are like de facto relationships.
In estate claims, two people are domestic partners if:
- They have lived together on a genuine domestic basis (as life partners) for at least three years; or
- For a shorter time if they have a child together; or
- For a shorter time if they have registered their relationship
The South Australian government allows unmarried couples to register their relationships as a way of ensuring certain legal rights without having to marry. For more information, see the South Australian Government’s information page on registered relationships.
How do I find out what’s in the Will?
Once probate has been granted, the Will becomes a public document.
You can ask to see the Will at the Supreme Court of South Australia’s Probate Registry, or we can get a copy of the Will for you.
If you want to see the Will before the grant of probate, we can try to locate it for you. It may take longer if the person used a Will kit to make their own Will.
What happens if there’s no Will?
If there’s no Will, or if the Will is invalid, different rules and processes apply.
The person is considered intestate (meaning that they have died without a Will) and there will be a separate process to find someone to divide up the estate. For more information, see Estate administration.
What if I want to make an inheritance claim more than six months after the grant of probate?
South Australian laws set out strict time limits for inheritance claims. It’s usually difficult to get an extension of time to make a claim, but it’s always worth checking.
If the estate has already been distributed, you will not be granted an extension of time to make a claim.
If you’re wondering whether you can still make a claim, even after the time limit has passed, contact us as soon as possible for advice.
Do I need a grant?
A grant of probate, letter of administration with the will annexed or letters of administration is required in estates due to the nature of the assets held by the deceased person that will not be released by a third party without a grant being obtained.
For estates in which the deceased held assets such as land, a nursing home bond, bank accounts exceeding a certain threshold (determined by the bank), shares and even some superannuation policies, a grant will be required.
A grant is not required for assets held jointly with another person and this property can be dealt with by removing the name of the deceased person following their passing to reflect ownership of the surviving owner.
What type of grant do I need?
The type of grant will depend on if the deceased left a valid will or not.
If a valid will appointing an executor who is willing and able to act was left by the deceased, a grant of probate will be required.
Where a will was left and no executor was appointed or is willing and able to act, a grant of letters of administration with the will annexed will be required.
Where there was no will, the deceased is deemed to be intestate and a grant of letters of administration should be applied for.
How long does obtaining a grant take?
There are many factors that impact on the time taken to obtain a grant from the Supreme Court including;
Whether the deceased left a valid will and the condition of the will or any errors contained in the will. Sometimes, affidavits are necessary to submit with the application, such as:
- an affidavit explaining the condition of a will;
- an affidavit establishing that the will was properly executed; or
- an affidavit explaining the name of an executor being spelt incorrectly or a name being omitted from the will;
Number and type of assets held by the deceased and the time taken for third party asset holders to respond to requests for information;
Availability of details relating to the deceased’s assets and liabilities.
We understand that obtaining a grant is complex and stressful at an already difficult time. We aim to streamline the process for you through out the course of your matter to reduce stress for everyone involved.