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Thinking of Suing for Defamation? Or Have been Sued? This Guide is for You!

By | Compensation, General Information

The law of defamation is used to protect someone’s reputation. Defamation occurs where someone hurts the reputation of another by spreading false information about them.

To be considered defamatory action, three elements must be satisfied:

  1. Information was communicated by a person to a third party (publication);
  2. The material identifies a person (identification);
  3. The information/material contains matter that is defamatory (defamatory matter).

The material will be defamatory if it could:

  1. Injure a persons reputation by exposing them to hatred, contempt or ridicule; or
  2. Cause people to shun or avoid them.

Provided that there are no defences available then the person who makes defamatory comments are liable to pay damages to compensate them for the damage caused to their reputation.

Due to the rise of the internet it is important to understand how defamation can occur. Defamation in an online sense would include people commenting on your Facebook posts. We have been following decisions in Zurich and Canada on defamation issues occurring on social media. We had speculated that it was only a matter of time before Australia caught up with the rest of the world. This speculation proved to be correct with the decision in Johnston v Aldridge [2018] SADC 68 where the plaintiff claimed for defamation by the defendant who had posted on Facebook but also on the comments made by other users on the original post written by the defendant.

The Defendant argued that it would have been impractical for him to police and remove any defamatory comments (not surprising considering the comments ran for 190 pages) but the presiding Judge did not accept this position and found the Defendant liable for the defamatory comments.

The next question is how to compensate for defamation. The damages as seen in the Rebel Wilson case provides some insight in to how difficult attaining damages are.  Damages can be substantial if the defamation causes an actual loss of business, or even a loss of opportunity. In the absence of proven economic loss, substantial “general” damages may still be awarded as a relief for hurt and distress. Last year, Rebel Wilson was awarded more than $3.9 million in compensation — the largest defamation damages payout ever ordered by an Australian court — after a jury found she missed out on film roles because the articles claimed she had lied about her age, real name and childhood. However, the Court of Appeal dismissed Rebel’s economic loss award in its entirety – from a massive $3.9 million to nothing.  This discount highlights the weakness of the loss of opportunity cases for claimants.  Rebel Wilson did receive damages for non-economic loss which was for humiliation and hurt feelings caused by the defendant reduced from $650,000 to $600,000.

It is significant to note the Court of Appeal’s decision to maintain the trial judge’s ruling that the statutory cap on damages awards for non-economic loss can exceed the cap where circumstances of aggravation are established.

There are time limits which apply to defamatory matters. Any action must be brought within one (1) year of publication of the matter complained.

My Health Record – Is it as Secure as Promised?

By | General Information

If you read our information guide on the My Health Record, My Health Record (“MHR”) is an online summary of your key health information, established by the My Health Records Act 2012 (“the Act”). In that summary your health information is intended to be viewed securely online, from anywhere at any time. It was also intended to enable Healthcare providers to gain access to your MHR when they need, to such as when you are in an accident or emergency.

If you didn’t opt out of MHR, the MHR gathered all your health information from you, your healthcare providers and Medicare. This information can include medical conditions, medication, allergies, test or scan results and treatments all accessible within the one place.

In our guide we speculated that this open access of information could create new risks from the online transmission and storage of personal information in the MHR system.  By having this system easily accessible by storing it online, leaves your information vulnerable to snoopers, criminals and hackers. This risk could also extend to your children’s information as well.

Recently, it was reported that a number of participants had another person’s medical details incorrectly entered into their own records. In other instances, some records had been viewed by fraudsters, and in another a child had the incorrect parent assigned to their records.

There have also been a number of breaches reported to the Office of the Australian Information Commission.

If errors like this can happen, is it really a reliable source of information for doctors when you have been in an accident or emergency?

There have been fears raised about perpetrators of family violence being able to become an authorised representative of a child’s MHR. Amendments were passed to the Act on 26 November 2018 providing that a person cannot become an authorised representative of a child’s MRH if the life, health or safety of the child or another person would be put at risk. Unfortunately, this can only be identified by Court order, which means that if a person has not applied to the Court for domestic violence protection orders, there remains a risk to their, or their child’s safety.

Online access to a child’s MHR would provide information about the location of a child and family and/or their treatment providers and the nature and date of treatment. Family lawyers in particular should be aware of this when advising clients. There may be risk of family violence their clients and/or their children if the other parent were to gain access to the health record information or location revealed through the MHR system.

The opt out period has now been extended to 31 January 2019, after which all children and adults will have an electronic health care record created for them. Everyone should consider their own personal circumstances and decide whether the MHR is appropriate for them.

This Call May be Used for Quality and Training Purposes….and Evidence if We Sue You!

By | Compensation Law, General Information

We have all heard the pre-recorded statement that the telephone call will be used for quality and training purposes. But what if that warning is not played, and what can they, or someone else, do with the recording?

And what about that recording button on your mobile phone. Can you record a conversation with someone and use it against them?

This short article generally explores the privacy rights around recorded phone calls, and the uses of the recording as evidence in Court proceedings.

It all begins in the Invasion of Privacy Act 1971 as to whether recording of a conversation is legal.

There is no offence if the recording is of a telephone conversation to which you are a party, or your recording unintentionally picks up another conversation that you are not a part of – some of you might have seen the episode of Suits where Samantha uses Alex’s daughter to ‘accidentally’ record a conversation to then be used in a deposition. Although it might have worked in Suits, this does not work in real life. This would in fact be a breach of the Invasion of Privacy Act 1971.

So, recording a conversation to which you are a part of is not illegal.

The next question is whether you can use that recording as evidence for whatever reason? Maybe you want to record your ex in a family law dispute? Maybe you want to record a witness in an injury claim?

The Invasion of Privacy Act 1971 provides that it is an offence to communicate or publish that recording, or a report of the recording, of the private conversation. The penalty is imprisonment of up to 2 years or a fine of up to $5,222.00.

However, you can use the recording if the other party to the conversation gives their consent, whether it is expressly given (ie they say they agree to you communicating or publishing the phone call) or it is implied (when the pre-recorded statement says the telephone call will be used for quality and training purposes and you continue with the phone call anyway).

The use in legal proceedings is limited, and makes the recording inadmissible as evidence in civil or criminal proceedings unless consent is given to use the recording.

So what can you do with the recording if you can’t use it as evidence? Perhaps you can produce a diary note of the conversation from the recording. Perhaps you can produce an affidavit as to what was discussed in the conversation from the recording. In either case, the document might put you in breach of the Invasion of Privacy Act 1971 by producing a report of the recording.

It appears at this stage the extent of which you can use a telephone call recording without consent is yet to be truly tested in the Court.

In the example of an injury claim where you are recording a witness, do you need to disclose the recording or written record of the recording? Setting aside the issue of whether it is legal to communicate or publish the phone call, we turn to the Uniform Civil Procedure Rules 1999. If you have the witnesses consent, you can obviously disclose the recording, or written record. If you don’t want to disclose it, rule 213 of those Rules allows you to claim privilege to the document.

There are three types of privilege that you can claim: advice privilege, litigation privilege and third party privilege.

Advice privilege applies where the communication in question was made for the purpose of giving or seeking legal advice. Advice privilege can also protect confidential communications between a client and third parties made for the dominant purpose of enabling the client to obtain legal advice – such as a Barrister.

Litigation privilege relates to documents brought into existence for the purpose of use in legal proceedings, or for obtaining or collecting evidence to be used in the legal proceedings. This includes statements of potential witnesses, and surveillance film taken for potential use in litigation.

It is important to note that if you were to claim privilege to a statement, that privilege is waived by conduct which is inconsistent with the maintenance of the privilege – such as discussing the contents of the privilege statement with a third party.

If you need any advice regarding recorded conversations, contact one of our lawyers on 13 58 28.

When You Shouldn’t Pay Your Water Bill

By | General Information

If you are a tenant or a landlord, you may be paying more for your water consumption than you should be.

Most landlords would have been told by their agent that if their properties are not ‘water efficient’ then their tenants will not have to pay for water usage.

This has given rise to two pervasive misconceptions:

  1. Landlords are required to have their properties inspected by a plumber to certify that the property is water efficient, often then being told that they require new cisterns and taps to be installed;
  2. If a property is not certified as water efficient, tenants are free to use as much water as they like, and will not have to pay for it;

Is your property water efficient?

You do not need a plumber to tell you if your property is water efficient. If you have a bucket and can do some grade 8 maths you can find out for yourself:

The requirements to be water efficient are as follows:

For Showers and any internal tap (including over the laundry tub), turn the tap on fully and measure the amount of water which comes out in 10 seconds, then multiply this by 6. If this number is less than 9 Litres, congratulations, these outlets are all water efficient.

If your taps are not efficient, there is no need to replace them.  You can install a flow restrictor for under $10.  It just takes a few minutes work to meet the requirements.

For a toilet the process is a little more complicated to work out manually. First it must be dual flush (head to Bunnings). To be water efficient full flush must use less than 6.5 Litres, and the half flush less than 3.5L, and the average of the two, according to the following formulae must be less than 4 Litres.

Average Flush = Full Flush + (4 x Half Flush)
          5

So how do you measure the volume of a flush?

First turn off the tap which provides water to the toilet cistern, remove the lid of the cistern and mark the height of the water on the inside of the cistern. Press the Full Flush button, then refill to the original height measuring the amount of water required.

That’s it! If you’re a landlord, and you meet this requirement, you can confidently and proudly tell your managing agent that your property is water efficient.

It also needs to be stated in your rental agreement that tenants are to pay for their water usage, so you may need to wait until the lease is renewed.

If you are a tenant, and you find out that your home is not efficient. You should speak to your property manager about whether you should be paying for your water usage, and if not, you could, perhaps be compensated accordingly.

If the premises does not meet the water efficiency requirements above, then the tenant can be charged for a reasonable quantity of water supplied to the premises. The following factors are considered in determining a reasonable quantity:

  • water usage information for the local government area
  • size of the premises
  • terms of the tenancy agreement
  • whether there are water saving devices installed on the premises
  • number of people occupying the premises

So become water wise and you may just help your hip pocket as well as the environment.

Remembrance Day is this Sunday 11th November 2018

By | General Information

Remembrance Day is this Sunday 11th November 2018.

This Sunday marks the 100th anniversary of the Armistice which ended the First World War (1914–18).

McNamara and Associates.  Please find below service times for Remembrance Day within our local community.

  • Ipswich:  Memorial Hall, 63 Nicholas Street, Ipswich @ 10.30 am
  • North Ipswich:  The Workshops Rail Museum, North Street, North Ipswich @ 10.30 am
  • Redbank Plains:  Seasons Care Home, 15 Argyle Street, Redbank Plains @ 10.45 am
  • Redbank:  Redbank Memorial Reserve, Bridge Street, Redbank @ 10.30 am
  • Goodna:  Soldiers Memorial Stone, Corner of Queen and Church Streets, Goodna @ 10.40 am
  • Springfield:  Springfield Light Tower, Robelle Domain Parklands @ 10.45 – 11.15 am
  • Boonah:  Memorial Park, Corner of Park and Bell Street, Boonah @ 10.50 am
  • Beaudesert:  Jubilee Park, Brisbane and Albert Streets, Beaudesert @ 10.40 am
  • Peak Crossing:  Peak Mountain View Park (Opposite Peak Crossing State School) @ 10.30 am
  • Kalbar:  Engelsburg Park, 25 Edward Street, Kalbar @ 10.45 am
  • Laidley: Cenotaph Memorial, Whites Road and Patrick Street, Laidley @ 10.45 am
  • Gatton:  Weeping Mothers Memorial, Littleton Park @ 10.35 am

HISTORICAL APPLICATION TO SUPREME COURT – Institutional Child Sexual Abuse

By | Compensation, Compensation Law, General Information

In 2016 the State Labour Government introduced (via the Limitation of Actions (Child Sexual Abuse) and Other Legislation Amendment Act 2016) amendments to the Limitations of Actions Act 1974 effectively removing statutory limitation period for anyone who was the victim of institutional child sexual abuse and had not brought a claim.

Last week one of our Senior Personal Injury Lawyers, Abe Arends instructed Counsel in an application by a client to set aside a settlement agreement the client had reached with a prominent Brisbane School in 2002. Our client was sexually abused by the then school counsellor of the school, and settled a claim for psychological injury as a result of that abuse. The limitation date had well and truly expired and that was one of the issues our client faced if he continued with the claim and therefore our client settled for a sum which at the time we argued was manifestly inadequate.

For those who have previously settled claims, the Act also gives the courts the power to set aside those agreements if the court wishes to exercise its discretion and consider it “just and reasonable” to do so.

Congratulations to Abe and the team for their commitment to this matter. This is the first of these types of applications in Queensland.

The Judge has reserved his Decision on the matter.

Join the Drive for Safer Roads

By | Compensation Law, General Information

Every year approximately 1,300 people die on Australian roads. Queensland’s death toll alone accounts for an estimated 300 fatalities. Additionally, over 3,000 people in Queensland are seriously injured in road accidents leaving them disabled, out of pocket and unable to return to work.  Tragically, 90% of all road accidents are easily preventable if the driver was not speeding, under the influence of alcohol or merely paying attention to the road.

A few safety driving tips for when you’re driving:-

  • Switch your phone to silent or flight mode as soon as you get behind the wheel and let everyone know you’re driving ‘phone-free’ and remove pressure to be in contact.
  • Driving tired affects reaction times and impairs judgement. Take a break or don’t drive if you’re tired.
  • Regularly check your speed to ensure you are travelling within the posted speed limit; most crashes happen at less than 10 kilometres over the speed limit.
  • If the weather, traffic or road conditions are poor, you may need to slow down, increase the distance between you and the vehicle in front, and travel below the speed limit to stay safe.

Every person has the right to travel and arrive home safely when using Queensland roads and by being aware, you can do your bit to reduce the chance of an accident. However, as we cannot control other people’s actions while driving, it is important to know what you are entitled to if you were ever to find yourself or a loved one injured, disabled or killed from an accident.

If you or a loved one have sustained an injury in a car accident you may have the right to make a common law claim for damages. In Queensland you have three (3) years from the date of injury or accident to settle your claim or file court documents or you will forever lose your right to make a claim.

For more information about motor vehicle accident claims contact one of our injury lawyers on 13 58 28.

Watch Out Keyboard Warriors!!!

By | Compensation, General Information

What would you do if someone decided to spread horrible lies and rumours about you? You may do nothing because you believe that it will all just simply blow over in time. However, what if this does not happen? What if the rumours and lies grow? What if they actually damage your lifestyle and make it impossible for you to either get work or perform your current work? In this nightmarish situation, you are able to turn to the law in the hope that it will save you.

Defamation law aims to protect the reputations of people by punishing those who spread false information about them. If someone communicates information to another person which identifies you, and this information could injure your reputation by either causing people to avoid you or expose you to ridicule, hatred or contempt, then they have defamed you. If this were to occur you would be entitled to sue this person for damages and receive monetary compensation from them.

While the concept of defamation has been present in society for a while, it has gained an increased presence in the age of social media. Social media is well known as a platform for which people can share their opinions freely. While this was aimed to create many positive relationships and interactions between people, it has unfortunately also become a vehicle used by people to viciously attack others. These faceless cowards utilise the anonymity that social media can provide to say things to people that they would never be brave enough to say to their faces – bringing the dawn of the age of the keyboard warrior.

Often these keyboard warriors do not fear any repercussions for their actions due to their belief in the veil of anonymity. However, this is where they are wrong as the law is catching up to them!

We have been closely following decisions from international Courts.

In Canada, the Court found that even if not all the comments in a post were defamatory, the comments exposed the injured persons to hatred, ridicule and contempt by social media followers.

In Zurich, the Court found the support of followers simply by liking or commenting on a social media post could also make those followers liable for defamation.

Australia is catching up. On 27 June 2018 the South Australian District Court delivered a decision in Johnston v Aldridge [2018] SADC 68.

The Defendant in South Australia was found to be a secondary publisher by making a post that created the opportunity for defamatory comments to be made. The Defendant argued that it would have been impractical for him to police and remove any defamatory comments (not surprising considering the comments ran for 190 pages) but the presiding Judge did not accept this position and found the Defendant liable for the defamatory comments.

You may ask why someone who does not make the comments should be held responsible. The reasoning for this stems back to who has control over social media posts. Ultimately, this control is held by those who create them. By posting something on social media you have the power to block these keyboard warriors and delete their comments. This undoubtedly gives you great power and with that power comes great responsibility. This responsibility requires you to do the right thing and ensure that people’s reputations are not mindlessly slaughtered, with your post being the catalyst.

It is only a matter of time now before the Australian Courts agree that the commenters or ’likers’ are also liable, just as the Courts have found in Zurich.

If you are a keyboard warrior, perhaps next time consider the affects your comments might have on another person/business because you could be the next defendant in a defamation claim.

Armoured Vehicles

Rheinmetall Defence Australia Awarded $5 billion contract to Build the Next Generation of Armoured Vehicles

By | General Information

It has just been announced that Rheinmetall Defence Australia has been awarded a $5 billion contract to build the next generation of armoured vehicles with some 225 Boxer CRV’s being built in our very own Ipswich, using Australian steel.

It is intended that these vehicles will replace the current Australian Army’s Light Armoured Vehicle fleet, to be used for everything from regional stability and peacekeeping to high-threat operations.

This contract could mean more than 350 long-term jobs, significant opportunities for local SMEs and associated work with an ongoing delivery and maintenance in Ipswich.

There may even be a further stage in the future to construct 450 more vehicles in a $15 billion project.

This news leads us to reflect on the other great industries in Ipswich. With key industry sectors in energy and environment, food and agribusiness, advanced manufacturing, education and training, transport and logistics, property and construction, and defence, Ipswich is home to a broad range of industries that have flourished historically and are poised for substantial growth going forward, particularly with the new military vehicle contract.

Our own firm is based in the historic Queen Victoria Silver Jubilee Memorial Technical College which operated as a TAFE college until 2006, cementing us in a piece of iconic Ipswich history, alongside the CPM Group, Hutchinson Therapy Services, Gibson Architects, the Pumpyard Brewery, Dovetails Restaurant and now to top it all off – Ben Ungermann’s ice cream parlour!

We look forward to Ipswich’s future development and being able to assist all of these industries grow along with our city.

If you have any legal concerns you may wish to visit our website for information relevant to your matter and other legal topics – https://mcna.com.au/

Be our friend on Facebook for future legal updates and information! https://www.facebook.com/McNamara-Associates-141566852640942/.

Business Structure

Best Structure for my Business

By | Business, General Information

When starting a business, there are a number of important decisions to be made. One of the very first things to consider is how to structure your business. How you decide to model your business will determine much of how the business will grow and how you will maintain it moving forward. Finding the right structure is imperative to the success of the business and there are risks and benefits to each different type of structure. All small businesses face unique challenges and specifically tailored legal advice is the best way to ensure you choose the best path.

Key Questions in Deciding on Business Structure

When determining how you want to structure your business, you should carefully consider which will best reflect your future goals and have the most long term benefits. Each structure has different costs, both upfront and ongoing, which will affect how beneficial the structure will be for your particular situation.

Some of the most important things to consider when selecting a business structure are:

  1. What type of business you are going to run
  2. The risk profile of your business
  3. Potential growth; is the structure realistic for the type, size, and growth of business?
  4. Involvement of others
  5. How you want to make decisions going forward
  6. Cost of startup/registration and maintenance
  7. Difficulty of set up; what documents will you need?
  8. Liability; different structures help with asset protection and personal liability
  9. Profit scheme
  10. Malleability of business structure and ease of potential dissolution
  11. Tax advantages/disadvantages

Four Common Business Structures

            Sole Trader/Sole Proprietorship: Most of Australian small businesses use this structure. This is the simplest business structure available, is easy to set up, and reasonably cost effective. A sole trader manages and operates their business under their own name and is legally responsible for every aspect of the business (unlimited liability), though they can still hire others to work for them. This type of business structure might be best for contractors, traders, entertainers, home businesses, and small businesses.

The advantages to this business structure are the relatively low costs, ease of structure change, and fewer regulations. The disadvantage are the ‘unlimited liability’ involved and more limited growth potential.

            Partnership: A partnership involves an association of two or more people who are both jointly and severally legally responsible for all aspects of the business. Partnerships are relatively easy to set up and are cost effective. However, it is extremely important to carefully choose your partner as you will equally share liability for their actions. In this structure, a partnership agreement will be in place to outline how the partnership will operate.

The advantaged to this business structure are the ease and low cost of set-up and dissolution. The disadvantages include the higher level of liability involved and the shared decision making.

            Company Structure: A company is a separate legal entity, and is the best type of structure for a growing business. Because a company is its own legal entity, individual shareholders are not liable for all debts and liabilities incurred by the company, but only up to the amount unpaid on their shares (usually zero). Similarly, the directions of the company are protected from debts and liability of the company with some exceptions. This feature makes a company structure suitable for high-risk businesses and start-ups.

The advantages of this business structure include the limited liability, the tax benefits, and potential for growth. The disadvantages include the high cost of starting and maintaining a company and lack of control in decision-making.

            Trust: A trust is simply an entity that holds property/income for the benefit of others. In a business structured with a trust, there will be an individual or corporate trustee who controls the trust and distributes assets to the trusts beneficiaries. An individual trustee is personally liable for the trusts debts, but corporate trustees are normally protected by limited liability.

The advantages to this business structure are the limited liability and the ease of raising capital. The disadvantages however, are the expense and difficulty of set up and dissolution and lack of decision-making control.

Tax Effects

            Each business structure is affected by taxes differently, an important factor to consider when first setting your business up. Partnerships, companies, and trusts receive tax benefits whereas the sole trader structure does not. However, the profits earned by a sole trader are considered personal income for tax purposes while the profits earned by companies are taxed and need to maintain meticulous records.

The best way to ensure the success of your business is to seek legal advice from a professional trained in such issues. Together, you and your attorney can formulate the best plan to set your business up for success.

Legal Costs

Who Pays the Family Law Legal Costs?

By | Family Law, General Information

Your ex has threatened to take you to Court and go after you for legal costs? Or you are in the unfortunate position of having to take your recalcitrant spouse to Court to have progress? Who pays the legal costs?

The general rule in the family law courts is that each party pays their own legal costs.

However, there are exceptions and circumstances that fall outside the general rule where one party may be required to pay part or all of the other’s costs.

Section 117 of the Family Law Act 1975 deals with legal costs in family law matters.

The section starts by saying that each party bears their own costs, but also says the Court may make Orders as to legal costs as the Court considers just.

Subsection 117(2A) then lists the factors the Court should consider in deciding whether to make an Order on costs, summarised as follows:-

  1. The financial situation of the parties;
  2. Whether either party is receiving Legal Aid funding;
  3. the conduct of the parties to the Court proceedings including, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters (have they followed Court rules and procedures);
  4. whether parties have complied with Court Orders;
  5. whether either party was wholly unsuccessful in the Court proceedings;
  6. any offers made by the parties and the terms of any offer;
  7. such other matters the Court considers relevant.
They breached an Order

Where there has been non-compliance with previous Court Orders a claim that one party pay the other parties’ legal costs would usually get the Court’s initial attention, however the assessment of whether a costs Order is made depends on weighing up all the above listed factors.

Send them a letter before applying to the Court

If the need for applying to the Court has arisen by the failure of one party to engage in any negotiations, exchange of documents, or unreasonable delay this would assist to seek costs.

The fact that the Court considers the conduct of the parties and any offers made gives good reason to attempt negotiation with the other party prior to resorting to Court proceedings.

It is imperative that prior to any application to a Court the parties’ and their lawyers should engage in correspondence to attempt resolution without needing to apply to the Court.

If you make a reasonable or favourable offer that is not accepted by the other party, and the Court considers the other party’s position to have been unreasonable, there may be an argument that they should pay some or all of your costs.

The straw that got the costs Order made

The consideration of whether to make a costs Order is a matter of discretion by the Court. This means the Court weighs up all the competing factors and can decide differently for each case. For this reason, if a party simply made an offer that was not accepted then that alone may not be enough to result in a costs Order. However, if a party in a letter makes a very favourable offer, the other party has breached a Court Order, and the other party’s position at Court appears unreasonable, then the combination of factors might mean a costs Order is made.

Because the Court may consider a costs Order if parties do not follow the Court rules and procedures correctly, it is recommended that legal advice be sought throughout the course of your Court proceedings to avoid failure to comply with Court rules developing into a situation where the other party seeks legal costs. It is worth noting however that the Court will usually give unrepresented parties some forewarning when it comes to non-compliance with rules prior to making a costs Order against them.

What about the children

The consideration of the relative financial positions of the parties is an important consideration, particularly in parenting matters. If the Court is satisfied that making a legal costs Order against a parent would have a negative financial effect on a child’s household the Court in those cases will usually not make a costs Order.

Documentation

Whether you are seeking a costs Order or attempting to dodge one, it is important that all relevant information be set out in an Affidavit and filed at Court. Any information relevant to the seven (7) considerations in section 117(2A) should be included. A detailed breakdown of your income, expenses, assets, and liabilities should be provided. Copies of letters or offers exchanged by the parties should be attached.

All or some costs?

A Court can make an Order to pay legal costs on a Court Scale or the actual amount of the other party’s legal costs.

Court Scale costs are usually much less than actual legal costs, and the Court may fix costs at 100% of the Court scale or any lesser amount the Court decides as just.

The actual legal fees of the other party are sometimes called “Indemnity costs” or “solicitor and client costs”. The Court will usually only grant payment of the actual legal fees of another party in the most deserving of circumstances and the Court will need to be satisfied that the legal fees are reasonable and not excessive.

The assessment of whether there is a chance of a legal costs Order being made is something that should be done by an experienced family lawyer.

This brief article is intended to give a basic knowledge of the rules surrounding legal costs Orders in the family Courts.

Our family lawyers Ipswich at McNamara & Associates would be happy to discuss this and any other aspect of your family law matter. Please do not hesitate to contact our office to arrange your first initial consultation free of charge.

Rickuss-and-Gimara-Visit

Rickuss and Gimara Visit

By | General Information

On Friday, our Gatton office had the pleasure of hosting the Member for Lockyer, the Honourable Ian Rickuss, and the President of the Uganda Law Society, Mr Francis Gimara, on their tour of the local Magistrates Court and law firms.

It was very interesting to learn from Mr Gimara that Uganda use the Torrens Title system, which is used here in Australia.

Thank you again to Mr Rickuss and Mr Gimara for their visit and we wish Mr Gimara well on his visit here to Australia.

88 Limestone St

Have You Heard the News? McNamara & Associates has Moved and so Have Your Securities.

By | General Information

If you have documents held with our firm in safe custody we take this opportunity to let you know that those documents have now been carefully transferred to our safe at 88 Limestone Street in Ipswich.

A few months ago McNamara & Associates’ North Ipswich and Wharf Street offices relocated to one central location at the historic and beautifully restored former TAFE building on 88 Limestone Street.

If you haven’t been to visit us at our new office, we look forward to seeing you there soon. The building retains its period features with a modern twist. We are very happy in our new home which provides spacious conference rooms to meet with our valued clients.

We are currently in the process of notifying clients by email and post of where their documents are now being stored. Please be patient with us as we go through thousands of security packets and contact individual clients. The process is going to take some time but we are working hard to notify all clients as soon as possible.

We encourage any clients that have documents stored with us who have changed contact details to get in touch with our office to update their address, phone and email contact to enable us to keep all of our records current and ensure that we can get in touch with people when necessary.

This is also a good opportunity for clients to contact us if they wish to update or review their Wills & Powers of Attorney and make sure the documents are still appropriate for their circumstances.

Please phone us on 13 58 28 any time between 8.30am – 5.00pm Monday to Friday to speak with one of our helpful staff members.

Charity Ride By McNamara & Associates Team Ipswich

Legal Help for Cyclists

By | Compensation Law, General Information

Cycling Popularity 

Whether cycling for leisure or to commute, millions of Australians ride a bike each week. Growing in popularity since the early 2000’s, cycling has increasingly taken hold in Australian culture. Fueled perhaps by the success of Australian sports heroes such as Cadel Evans or a surge in fuel prices, the number of cyclists has risen dramatically in the past decade, moving from 13% of the population in 2005 (2.1 million people) to 19% in 2015 (3.7 million). In particular, cyclist numbers increase during Spring and Summer, as pleasant weather coincides with summer breaks and vacationing tourists taking a ‘cycling holiday.’ 

Cycling Accidents 

Unfortunately, the increase in cycling has also translated to an increase in cycling accidents. In fact, the Australian Institute of Health & Welfare reported an increase of 7.5% p.a. in life-threatening cases involving cyclists from 2001 to 2010. Similarly, driver aggression and inattention towards cyclists has increased as well, with incidents of cyclist-vehicle door opening crashes (‘dooring’) escalating in at least one Australian state by 125% from 2000 to 2010. 

With almost two million more cyclists on the road, safety has become a critical concern, inspiring many Australian cities to redesign roadways and adjust laws to accommodate the growing number of cyclists. If you or someone you know is one of the millions of people participating in cycling, it is important to be prepared and know what resources are available in the event of a cycling related injury. 

What is a ‘Cycling Accident? 

A broad number of situations are covered under the umbrella of ‘cycling accident,’ including: accidents involving bicycles and vehicles resulting in injury, injuries caused by ‘dooring,’ injuries caused by unsafe or poorly maintained infrastructure, courier accidents, and any other accident involving a bicycle which results in injury on a roadway or a public place.  

Where to Begin? 

If you find yourself injured in a cycling accident, first obtain as many details of the event as possible: exchange information with the at-fault party and any witnesses, take note of the vehicle (make, model, and plate number), take photographs of the vehicle, your bike, your injuries, and the scene of the accident, take special note of factors such as weather, traffic, time, and date.  

Contact the Authorities 

If you are injured in the accidentcontact the police because an official police report is often necessary in order to file a cycling accident claim. It is best to contact the police immediately and have them attend the scene of the accident but if you choose to wait, keep in mind that there are limits to how late you can file a report. If you do not report the accident within the allotted time period, you may still be able to report it after completing additional paperwork. However, this is not a guarantee so the sooner you contact the police the better.   

If you are involved in a cycling accident you should always contact a lawyer. Even if the at-fault driver cannot be identified, you may be entitled to compensation under Compulsory Third Party (CTP) insurance. CTP covers accidents on public roads, compensating for personal injuries, and on road accident compensation claims, including those involving bicycles.  

It is important to contact a lawyer immediately because cycling accident claims have very strict time limits, usually requiring that you give notice within 9 months and commence a claim in court within 3 years from the date of injury. In cases where the identity of the at-fault driver is unknown, you are required to give notice within 3 months though if there is a reasonable reason for delay, you can push the time limit up to nine months after the accident. The sooner you get your claim started, the better. 

Damages 

If you are injured, seek medical attention soon, if not immediately, after the accident. By seeking medical advice/attention right away you can get treatment for current injuries, identify injuries you overlooked, prevent further injury, and demonstrate medical evidence that your damages resulted from the accident. 

It is also important to ascertain what other damages may have been caused by the accident. Get an assessment of your bike, any bike equipment, and accessories (like a GoPro). Obtain documentation of how much the damage cost you to fix or replace.  

What are the Chances of Success? 

A criminal claim for a cycling accident may not result in compensation, but civil claims have a much higher chance for success because of the different burdens of proof in criminal and civil cases. Criminal cases require proof of negligence beyond a reasonable doubt, but civil cases have a lower threshold and focus on the likelihood that negligence took place. The simple fact that an accident happened implies negligence and other factors (such as cellphone use) can affect the overall balance implicating a driver’s negligence.  

A successful claim will result in compensation. The amount of the compensation will reflect the amount of your damages and the circumstances of your claim. In general, the amount you are compensated is meant to restore you to where you would have been had the accident not occurred.  

Stay Safe! 

Though cycling is popular, viable, and efficient, roadways in Australia remain a dangerous place. However, there is help available. If you find yourself injured in a cycling accident, don’t hesitate to contact a lawyer and exercise your legal rights. Most importantly, stay safe!  

Are You a Victim of a Terrorist Act?

Are You a Victim of Terrorist Act?

By | Compensation Law, General Information

On 11 September 2017 we paused to remember the terrorist attack on the World Trade Centre in America in 2001. This marks the 16th anniversary of when nearly 3,000 people were killed.

Remembering this attack also brings to mind that many people were, and may still be suffering ongoing mental health illnesses.

On 21 October 2013 the Australian Government introduced the *Social Securities Amendment (Supporting Australian Victims of Terrorism Overseas)* Act 2012 whereby victims of acts of terrorism of prescribed terrorist acts could have access to a financial assistance scheme.

Unless special circumstances applied, primary victims of those terrorist acts only had two (2) years from the declaration of the schemes operation, 21 October 2013, to make their applications. That time expired on 21 October 2015. Secondary victims only had twelve months, ie until 21 October 2014.

Although it may be too late for primary and secondary victims of Australia to seek financial assistance from this scheme in respect to the World Trade Centre incident in 2001, people can now claim assistance for a number of other acts of terrorism that have been declared. The additional acts of terrorism now include:-

– 2017 Stockholm, Manchester, Baghdad and London (3 June 2017) attacks
– March 2017 London attack
– December 2016 Berlin attack
– July 2016 Nice, France attack
– March 2016 Brussels attacks
– November 2015 Paris attack
– September 2014 Kabul, Afghanistan kidnapping
– March 2015 Tunis, Tunisia arms assault

Primary victims will only have two years from the dates of these attacks to lodge an application for financial assistance. Secondary victims will only have twelve months.

For more information about terrorist act compensation or for assistance in completing the necessary application form please contact one of our injury lawyers on 13 58 28.

Rafter and Rose

Rafter and Rose

By | General Information

Walking into this beautiful laneway café in Ellenborough Street is like entering a secret garden. Rafter and Rose is as much about the antique shabby chic furniture, lime washed brick walls and rustically quaint garden as it is about the coffee and food. The atmosphere is as enjoyable as the food.

I have eaten here many times, as have most locals. It is a favourite weekend breakfast haunt, and the pet-friendly policy adds to the comfortable atmosphere. The café is a labour of love and combines the talents of Ellie, her aunt Candy (aka the Queen of cakes), and her mother, Lisa.

So, how would I describe the food? Good, honest, homegrown and homemade, with a twist. There is a simple respect for quality ingredients that resonates in each bite. The meals are filling and delicious. The food is grown with care, made with love, and served with a smile.

Double ChocMy real difficulty with Rafter and Rose is that I am always coming away from lunch wishing I had left room for dessert. If you love sweets as I do, I recommend a dedicated morning or afternoon tea at Rafter and Rose. If you are able to pass up on the famous choc-macadamia brownies, you may be tempted by the array of scones with homemade jam, the fresh almond croissants or the rosewater and pistachio cake.  But beware! If you opt to share these generous serves you’ll wish it was all for you.

The coffee is equally divine and is sure to please the fussiest of coffee drinkers. There is no shortage of beverage options to satisfy everyone. Even my notoriously fussy son loves Rafters, particular the homemade iced tea, which comes with fresh cut fruit.

If you love the ingredients, you have the option of buying seasonal fruit or vegetables from Lisa’s garden, local honey, or homemade jam and preserves.

The popularity of Rafter and Rose it well deserved and it definitely rates as an Ipswich favourite.

Facebook Versus Personal Injury Claims

Facebook Versus Personal Injury Claims

By | Compensation, General Information

When you commence an injury claim it is likely that the Respondent to your claim will appoint investigators to investigate the factual basis of your claim, or perform those investigations themselves.

These investigations might range from simply taking statements from witnesses but can be as extensive as conducting video surveillance of you.

It has become all too common for Respondents to perform full reviews of a claimant’s social media profile, whether it be Facebook, Twitter, Instagram, Linkedin, Snapchat, YouTube or any other social media platforms.

We have increasingly seen the Courts make Orders for claimants to disclose not just the public aspects of their Facebook profiles, but also the private aspect that is only viewed by friends.

If you use any of these social media platforms you may be required to disclose the entire content as they may relate to the circumstances of your claim.

The types of information you may need to disclose may include things like instant messages, text messages, photographs, typed posts and/or videos and audio clips.  However, disclosure could also extend as far as computer system information and meta-data (data contained within an electronic file relating to the identification, origin or history of the file) – although we are yet to see a Court Order for disclosure to this extent.

The meta-data means that even if you deleted posts on social media they can be made available for the Courts viewing.

It is increasingly important that claimants remain mindful of any content that is posted on social media.

The scope of the disclosure that may be relevant is interpreted broadly by the courts.  For example, a document may be relevant precisely because it does not say something when it would be expected that it would. With the example of Facebook, it might be suspicious if you go from a post per hour type of person, to a post per month.

Examples of occasions where a claimant’s claim may be adversely affected by a Facebook or Instagram post are:-

  1. a post of you socialising with friends when you allege to be suffering from depression;
  2. a post of you skydiving when you allege to be suffering from a significant physical injury.

These types of posts may cause your credibility to be questioned.

Claimants have a duty to the court to ensure that they disclose all relevant documents in their possession as well as documents held by others. If you can exercise some control over those documents they are disclosable. This means that if a friend takes a photograph of you and posts that photograph on social media, that photograph may be disclosable.

WHAT IF THE DOCUMENT NO LONGER EXISTS?

You must tell your lawyer if you previously had any relevant documents that have since passed out of your control, been destroyed or have otherwise ceased to exist.  In those cases, the court may order you to file and serve an affidavit stating:-

(a)       that a document does not exist or has never existed; or

(b)       the circumstances in which a document ceased to exist or passed out of your possession or control.

It is a serious offence for a party to intentionally destroy, withhold, conceal, alter or falsify a document that is required to be disclosed.  An individual who commits such an offence risks criminal prosecution.

In consideration of the importance of social media if you have started an injury claim you should give access to your lawyer by adding them as a friend to fully investigate what documents may need to be disclosed in the injury claim.

As for the future, we strongly advise that you bear in mind that the Respondent to your claim may investigate your social media profiles before posting comments, pictures or videos. If your profile is closed to the public, the Respondent may obtain an Order from the Court for you to disclose the entire content of your social media profile.

For more information about personal injuries claims or the impact of social media contact one of our injury lawyers on 13 58 28.

Amanda and Gareth

Strictly Coffee

By | General Information

I have an unashamed love of Ipswich!

I live in Ipswich, work in Ipswich, shop in Ipswich and eat in Ipswich. There is so much to love about this city and the amazing people who run some fantastic local businesses.

When we (McNamara’s) recently moved into our beautiful, new/old building at 88 Limestone Street, I was excited to be that little closer to some of my favourite local haunts. I also realised that many of these places were unknown to my colleagues, so I thought it a perfect opportunity to start a post on my some of my favourite local businesses.

My reviews are in no particular order, and are by no means all encompassing. I am certain there are some great places in Ipswich that I have not discovered, and I hope that readers may share some of these places with me.

Strictly Coffee

Strictly Coffee

This is one of my favourite coffee spots in Ipswich, although our relationship is not exclusive. Located on Brisbane Street, across from the Icon building, this coffee mecca is one of the most popular coffee shops in Ipswich.

Its popularity is well deserved. I am always guaranteed a perfect coffee! I acknowledge this is a bold statement, and it is one that I do not make lightly, particularly given the undeniable importance of caffeine in my universe. But there it is.

Gareth makes a superb coffee using freshly ground Di Bella beans, poured to perfection into a bio degradable cup….. decorated with the work of up and coming Australian artists. There is so much to love about this place.

If you are looking for a delicious cup of coffee, in a cosy atmosphere, with fabulous service, then a sit-down coffee at Strictly Coffee is a must. This place tends to attract a friendly crowd, and the large tables encourage conversation. I have met many great people over a soy latte and colouring book at Strictly.

If you are fanging for a slice of cake with your coffee, or you are hoping to drop in on the weekend, you won’t be quite so lucky. The food options are deliberately limited at the moment as the name “Strictly Coffee” would suggest, and they are closed Saturday and Sunday.