Answers to Frequently Asked Legal Questions
Worker's Compensation
Employment Law
Wills & Power of Attorney
Veterans Affairs
Personal Injury
If your injury occurred at work or was significantly contributed to by work, you might be able to lodge a claim for workers compensation. Both psychological injuries and physical injuries are covered. You will need to find out who the insurer is; in the ACT you will either be covered by private workers compensation or by Comcare/EML/a self-insurer under the Safety Rehabilitation and Compensation Act (SRC Scheme).
Once liability is granted, your compensation entitlements flow from your medical certificate. The common entitlements under both the private and SRC Act schemes are reimbursement of lost salary subject to statutory limits, reasonable treatment expenses, and reasonable household expenses if required. In certain circumstances you might be entitled to a one-off payment for permanent impairment if you reach a certain level of impairment in the SRC Act Scheme. In private workers compensation schemes, it is often possible to negotiate a lump sum commutation of your workers compensation entitlements. A lump sum commutation of your claim is not possible under the SRC Act Scheme.
No, not in the ACT or under the SRC Act Scheme. This is because “bullying and harassment” is not a diagnosable injury. You are however able to lodge a claim for a diagnosed psychological injury such as anxiety, depression or an adjustment disorder that has been significantly contributed to by bullying and harassment. However, the phrase “bullying and harassment” is essentially overused and often meaningless; it is much better to describe exactly what those actions that caused your injury constitute such as inappropriate supervisory conduct, exclusion, micromanagement etc.
No. Under both schemes in the ACT (Private and SRC Act Schemes) you can lodge a claim for an aggravation of a pre-existing injury as long as that aggravation occurred at work or was significantly contributed to by work. An aggravation can be acceleration or recurrence of an injury.
Absolutely not! It is not unusual for insurers to deny liability at the initial stage or even at reconsideration stage. We suspect that many people just give up at that point but that is often a mistake because it is often not until later that the matter is considered more carefully. Give us a call and we will give you a realistic appraisal of your prospects.
In our experience most cases that involve any form of administrative action are denied at first instance. This is because insurers tend to accept whatever the employer tells them. You will need to show that the action did not contribute to your injury in a substantial way or it was unreasonable, or it was unreasonably undertaken. We recommend you seek legal advice because this is a very specialised area of law.
Workplace situations can escalate far beyond your control. When you are working when distressed or injured, you are not in a “good headspace” and you are not performing at your best. Additionally, if you are in a conflict with your employer, there is usually a problem with the relationship of trust between you. Sadly, this often leads to performance management or code of conduct proceedings which in the long run leads to disciplinary action, often involving a dismissal. The law is complex. You need to seek advice.
An unfair dismissal is one that can be classed as harsh, unjust or unfair. It is a claim that is lodged with the Fair Work Commission and whether you can lodge a claim depends on the size of the employer, how long you have worked for the employer and the capacity that you are employed. Remedies that can be awarded by the Commission include reinstatement or compensation. There is a statutory limit of six months salary as a maximum for the amount of compensation. You only have 21 days from the date of effect of the termination to lodge your application.
Not necessarily. There might be other avenues that you can explore. Give us a call and we can discuss if there are any options available to you in your circumstances.
The Fair Work Commission (FWC) can order a stop bullying order if you are able to demonstrate that bullying has occurred. The FWC will only make this type of order if the conduct is conduct that meets the statutory definition of bullying which is that the conduct is repeated unreasonable behaviour that creates a risk to health and safety. Bullying does not include reasonable management action carried out in a reasonable manner. There is no entitlement to monetary compensation for these types of applications.
Yes. We help clients who are involved in Code of Conduct disputes regularly. We can advise on voluntary redundancies and assist you with seeking a voluntary redundancy if appropriate. We are also able to assist with General Protections and Adverse Action Claims.
Your prospects depend on any legal obstacles to be met/overcome, the strength of your evidence and medical opinions and the willingness of both parties to settle and agree on the outcome. We can assist with probabilities as no guarantees are possible.
When you make a personal injury claim, your earnings, medical history, accident/injury history and employment history are all relevant and must be disclosed on request-privacy is no longer guaranteed.
Whilst we will look to the earliest practical resolution it takes two parties, or more, to tango. There are many reasons for delay and no absolute deadline can be foreseen.
If a favourable outcome is negotiated or achieved a large % of your solicitor client costs and disbursements will be recovered from the other party/insurer; the actual gap required to be paid by you will depend on the jurisdiction and type of claim. If you are unsuccessful you will often be liable for the other side’s legal fees depending on the circumstances. These factors and risks will be explained orally and in writing at the outset.
The evidence is that self- represented claimants and litigants have considerably poorer outcomes than those with professional representation-not in every case but in a large majority; moreover the emotional and health tolls are greater.
To get a divorce in Australia, you must first satisfy several conditions. These include being an Australian citizen, you must have been resident in Australia for at least the past year, or intending to live in Australia indefinitely; satisfying the court that you and your spouse have been separated for at least one year; and, there must be no reasonable likelihood you and your spouse will reconcile. You will also need your marriage certificate.
If you have met the above requirements, you can make a divorce application, which can be a sole application or a joint application (that is, you and your spouse can apply together).
If you make a sole application for divorce, you will need to let your spouse know that you have applied for divorce (“serve the application”). You may need to file additional documents with your application for divorce, depending on your circumstances.
Sometimes applicants are required to attend Court in relation to their divorce – the Court will let you know. The Court may grant your divorce, dismiss your application, or adjourn the matter in order to receive further information.
Not really, no. Divorce and property settlement matters are dealt with separately in Australia. The cause of a marriage’s failure is irrelevant when determining the distribution of marital property following separation. A party’s unfaithful conduct does not impact the share that to which the unfaithful party would be entitled by law. (And remember, Australia is a no-fault jurisdiction in relation to divorce.)
Similarly, the fact that a spouse cheated in itself does not affect parenting arrangements.
It is difficult to estimate the total cost of a divorce for different parties, as each situation is different. The current filing fee for an application for divorce is $930. You may be eligible for a reduced fee if you hold a concession card or can demonstrate financial hardship.
You also need to remember that filing for divorce only dissolves your marriage. If you are seeking a property settlement and parenting orders through the court, you will also need to pay for these applications.
The general principle in family law matters is that each party pays their own costs. Courts do, however, have the power to order one party to pay the other party’s legal costs. This only happens where there are special circumstances to justify the order; for example, when one party breaches a court order, and the other party has to file an application to the Court as a result of the breach. Costs are rarely awarded.
No! In fact, in many cases, it is much more beneficial (and much less expensive!) to use family dispute resolution (FDR) to work out agreements both you and your spouse are satisfied with in relation to property and parenting arrangements. FDR may take the form of mediation, negotiation, or arbitration. Funded agencies such as Relationships Australia offer free or sliding-scale FDR sessions to separating spouses. It is a good idea to receive legal advice prior to undertaking FDR so that your legal interests are protected – that is, your arrangements are fair, and you understand what you are entitled to. Additionally, your solicitor can represent you at FDR and can often negotiate a better outcome for you.
However, in cases where family violence or abuse is alleged, FDR may not be appropriate.
It is highly recommended, however, that you apply with the Court to have any agreements you and your spouse come to regarding property and/or parenting made into consent orders, which are legally enforceable. These applications carry filing fees.
The Court will allocate a hearing date for your matter once you lodge your divorce application. The hearing usually occurs within a few months of the application being filed. The hearing does not take long, and as noted above, you may not need to attend. Once the Court grants your divorce, it becomes final one month and one day after the order is granted.
Please note that whilst this advice is correct as at the time of writing, laws change frequently and our website may become outdated. This information is also generic and of course might not be applicable to your particular circumstances. You need to ensure that before you take action based on any advice based on any website that you either seek further updated advice or check yourself that the information is correct and current and applicable to your particular circumstances.
If you die without a Will (or a valid Will) in the ACT, your Estate will be distributed according to legislation (‘the Laws of Intestacy’). For example, if the deceased person has a spouse and children, the assets will be split according to the legislative formula between the spouse and the offspring. If there is no spouse and no children, the Estate will go to the next of kin, from parents all the way to cousins or their children.
If a person dies with no legislated next of kin, the ACT Government is entitled to the Estate.
A Will is generally valid if the person making the Will has mental capacity; is correctly signed and witnessed; and, there is no evidence of coercion or tampering. Witnesses to the Will must be over 18, and cannot be beneficiaries or related to beneficiaries.
If there is doubt about your capacity, or you believe it may be in dispute, it is wise to seek a doctor’s confirmation of your capacity to make and execute a Will, and seek legal advice.
You should appoint someone capable and whom you trust. This could be your spouse, a relative or a friend. You can appoint more than one person as your Executor – and this can be a good idea, given that your Executor shall have to act to administer your Estate whilst they are grieving your loss. Your Executors can share the burden and support each other. However, if you choose more than one Executor, you must be confident they will work well together, as disputes can not only lead to hurt and angry feelings, but to delays in settling the Estate.
An EPA is a legal document that gives a trusted person (or persons) power to act for you and make legally binding decisions on your behalf, generally when you do not have capacity. EPAs are important because in the case of an accident or illness that causes loss of capacity (the ability to fully understand the nature and consequences of the document they are signing), a trusted person (or persons) can manage your affairs, including your day-to-day and personal care, health matters, financial matters, and similar.
The person making the EPA can state when the EPA has effect. In all circumstances except in relation to financial/property matters, the EPA can only come into effect when the person has lost capacity. In relation to financial and property matters, the person making the EPA can specify when the EPA commences.
We firmly advise people to consult a solicitor in relation to drafting their Will. There are many reasons why Wills can ‘go wrong’. For example, a lawyer can ensure your Will meets legal requirements, both in its contents and in the manner of its execution.
A lawyer can also help you understand what property you can bequeath in your Will – for example, superannuation ordinarily cannot be bequeathed in your Will, nor can jointly-titled property.
A lawyer can also provide advice help you structure your Will so it is less likely to be successfully challenged.
A lawyer can help you arrange guardianship of your minor children, and make provision for your funeral arrangements and communicate your intentions in relation to organ donation.
Most importantly, a lawyer can make sure your Will is valid. By law, a testator must have capacity (be of sound mind) to draw up a Will and determine the manner by which their property will be distributed upon their death. A lawyer can help prove you had capacity when your Will was drafted and executed.
If engaging a Wills & Estates lawyer appears to be too expensive, testators need to keep in mind the alternative. If your Will is not worded in a manner which demonstrates capacity to make a Will, and/or does not meet legal requirements and/or is open to dispute, your Will could be changed or even nullified.
The Department of Veterans’ Affairs (DVA) is responsible for determining entitlement for compensation. Three different pieces of legislation – the Veterans’ Entitlements Act 1986 (VEA); Safety, Rehabilitation and Compensation (Defence-Related Claims) Act 1988 (DRCA); and, the Military Rehabilitation and Compensation Act 2004 (MRCA) — apply to veteran’s compensation in relation to eligibility, and so determining eligibility can be difficult and complex.
The VEA covers wartime service and certain operational deployments, as well as certain peacetime service between 7 December 1972 and 30 June 2004. A Defence member who has not completed a qualifying period of three years’ service before 7 April 1994 is not covered, unless they were medically discharged, in relation to peacetime service eligibility.
Eligible persons may be entitled to
- a disability pension, if the disability is caused or aggravated during an eligible period of service;
- a pension at the age of 60 if they have qualifying service (having been allotted to, and having served in, an operational area or warlike service area); and,
- a White or Gold Repatriation Health Card, which provides for treatment for one or more medical conditions deemed to be Service-related, or a that provides treatment for all medical conditions, including those that are not Service-related, respectively.
The DRCA allows for rehabilitation as well as compensation for injuries and diseases suffered as a result of peacetime and peacekeeping service up to, and including, 30 June 2004, and operational service between 7 April 1994 and 30 June 2004.
Persons eligible under DRCA may be eligible for:
- a lump sum compensation benefit, if they are permanently impaired;
- periodic compensation payments, if they cannot work because of an compensable injury, disease or illness;
- payment of all medical and treatment costs they may reasonably require due to their compensable injury, disease or illness;
- provision of household services, aids and modifications, attendant care and similar; and,
help with the cost of vocational retraining or other rehabilitation.
MRCA provides rehabilitation as well as compensation for all Permanent, Reserve, and other entitled persons, who served on or after 1 July 2004.
MRCA benefits may include:
- vocational retraining and other rehabilitation; a lump sum payment, periodic payments, or a combination of both for permanent impairment (non-economic loss);
- periodic incapacity benefits for economic loss due to incapacity;
- the choice (with conditions) of a Special Rate Disability Pension (SRDP) ‘safety net’ payment for life or incapacity payments up to age 65;
- vehicle modifications or assistance;
- household services and similar;
- compensation for dependents in the event of the person’s death (with conditions);
- funeral benefits;
- bereavement payments;
- financial assistance to receive legal and financial advice;
- DVA White or Gold Cards or payment of reasonable treatment costs related to compensable medical conditions;
- other treatment costs, including those associated with pharmaceuticals; and,
- coverage of travel-related expenses associated with medical appointments associated with their compensable condition.
Which Act an applicant falls under, and the benefits that they may receive, depend on the date of injury (in relation to DRCA and MRCA) and/or the period of service that the injury or disease relates to (in relation to the VEA). Contact us and we will help you work out if your claims have been made under the correct Act and whether there are more beneficial entitlements that you might be entitled to.