Will your court matter require you to give your fingerprints to the police?

Posted on July 2, 2010 by admin

Some matters that are dealt with by the court, allow an order to be made by the court to attend upon a police station to provide your identification particulars, usually photograph and fingerprints. You need to be conscious of what these matters are and what the implications are for failing to do this. Section 134 of the Law Enforcement (Powers and Responsibilities) Act sets out the power in the following terms: 134 Orders for the taking of identification particulars

(1) A court that finds an offence to which this section applies to have been proven against a person may order the person to present himself or herself in accordance with the terms of the order and submit to the taking, by the officer in charge of the police station specified in the order, of all particulars as are necessary to identify the person.

(2) The particulars may include the person’s photograph, finger-prints and palm-prints.

(3) The order is to contain a warning to the person that a failure or refusal to comply may result in the person’s arrest.

(4) A person who does not present himself or herself in accordance with the terms of the order may, at the direction of the officer in charge of the police station, be arrested without a warrant and taken into custody for such time as is reasonably necessary for the taking of particulars in accordance with the order.

(5) This section applies to the following offences:

(a) any indictable offence,

(b) an offence under section 42 of the Road Transport (Safety and Traffic Management) Act 1999 of driving a motor vehicle on a road or road related area negligently occasioning death, negligently occasioning grievous bodily harm, furiously or recklessly or at a speed or in a manner that is dangerous to the public,

(c) an offence under any of the following provisions of the Road Transport (Safety and Traffic Management) Act 1999:

(i) section 9(1A), (1), (2)(a) or (b), (3)(a) or (b), (4)(a) or (b),

(ii) section 12(1)(a) or (b),

(iii) section 15(4),

(iv) section 16.

(v) section 22(2),

(vi) section 29(2),

(vii) section 43.

(viii) section 70. (c1) an offence under section 5 or 6 of the Prevention of Cruelty to Animals Act 1979,

(d) an offence prescribed, or of a kind or description prescribed, by the regulations. If your matter before the court falls into any of the above categories then the court has, and is likely to execute, the power to make such an order. As you can see from the section, failure to comply with the order will result in the police exercising their powers of arrest and detention for the purposes of obtaining the identification particulars.

Should you have any doubt about whether this applies to your matter then do not hesitate to contact Michael Burke, Maria Walz or Kara Greiner of the Burke Elphick and Mead Criminal Law Team.

The culture at Burke Elphick & Mead™ is what sets us apart from other firms. We are a close-knit team of committed lawyers, who are passionate about people and their rights. Our clients have access to professionals with experience and expertise across most facets of the law, including. Business and Commercial Law, Family Law, Criminal La, Civil Law, Wills & Estates, Conveyancing, Motor Vehicle Claims, Accident and Insurance Claims, Compensation Claims, Workers Compensation. Should you have any further queries, please do not hesitate to contact our office.
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Dads told to spend more time with kids

Posted on May 21, 2010 by admin

The ABC reported yesterday that The Australian Institute of Family Studies says many children get to spend less than 30minutes a day with their dads during the week.

The full report follow this link to the abc.net website http://www.abc.net.au/news/stories/2010/05/20/2904358.htm

If you have a family law matter, Merridy Elphick and Ashley Bithrey are our family lawyers working at the Newcastle office of Burke Elphick and Mead Lawyers.

Burke, Elphick and Mead Lawyers deliver a large range of legal services including business and commercial law, family law, criminal and traffic law, employment, wills and estates, compensation, motor vehicle and insurance law.Should you have any further queries, please do not hesitate to contact our office.
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The Trade Practices Act and Workers Compensation – Conflicting Entitlements?

Posted on May 7, 2010 by admin

Where a Corporation, in trade or commerce, supplies goods that are manufactured by it and the goods has a defect that causes injury to an individual, that individual may recover compensation from the corporation for their injury. This principle is contained in section 75AD of the Trade Practices Act 1974 (NSW) and is often referred to as “manufacturer’s liability”.

Accordingly, if an individual suffers an injury as a result of a defect in a good manufactured and supplied by a corporation, that individual may commence a claim against the corporation. However, where an entitlement to workers compensation exists, this cause of action is not available.

This is so due to the operation of s.75AI of the Trade Practices Act. This section states as follows: Section 75AD, 75AE, 75AF or 75AG does not apply to a loss in respect of which an amount has been, or could be, recovered under a law of the Commonwealth, a State or a Territory that:

(a) relates to workers’ compensation; or

(b) gives effect to an international agreement. An example of the operation of section 75AI is as follows; An individual purchases new tyres from a tyre dealer and has them fitted to their vehicle; this dealer is a corporation that is both the manufacturer and supplier of the tyres. 4 weeks after purchasing the new tyres, the individual is travelling to work, when a tyre blows out causing them to lose control of the vehicle and subsequently crash into a tree. The individual suffers severe injuries as a result of the accident. As the individual was travelling to work they have entitlements under the Workers Compensation Act. If the individual had not been travelling to or from work (thus not been entitled to workers compensation), they may have brought a claim against the tyre manufacturer under s.75AD of the Trade Practices Act for supplying them with defective goods that caused injury. However, because of the operation of section 75AI, the existence of the workers compensation entitlements means that the individual is, unfortunately, unable to commence a claim against the manufacturer under section 75AD and is limited to receiving only statutory workers compensation benefits.

Alice Davis and Ana Grguric work with Emma Mead who is our Personal Injury Specialist. They can assist with your Personal Injury enquiries. They are based at the Newcastle office of Burke, Elphick and Mead Lawyers.

Burke, Elphick and Mead deliver a large range of legal services including business and commercial law, family law, criminal, traffic, employment, wills and estates, compensation, motor vehicle and insurance Should you have any further queries, please do not hesitate to contact our office.
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Power of Attorney and Enduring Guardian

Posted on March 12, 2010 by admin

What is a Power of Attorney and Enduring Guardian and Why do I need one?  Suppose you are in an accident or become very ill. Suppose that as a consequence you are left in a coma or incapacitated. Who will pay your bills? Who will do your banking? Who will handle your money for you and ensure you receive proper care?

Contrary to popular belief, your parents, spouse or significant other are not always automatically empowered to make those decisions on your behalf. In many situations, without your express authority through a properly executed instrument, nobody else has the right to handle your finances or decide what health care you receive if you lose the capacity to make that decision for yourself. As to your finances, if you have not appointed anybody, it may be necessary for the Guardianship Tribunal—a government body—to appoint someone to be your legal guardian.

You would have no say in who the Guardianship Tribunal appoints. That is why it is essential to have a Power of Attorney and Enduring Guardian document drafted to ensure that you have that base covered. By hopping on the front foot, you can control who makes those decisions in the event something unforeseen happens to you. It’s your life and they’re your finances, so why not have your say.

So what’s the difference between a Power of Attorney and Enduring Guardian?           A Power of Attorney is a document that authorises a person to manage your financial affairs. The document has many applications, however the most obvious application is in the event due to some unforeseen circumstance you lose the capacity to look after your own finances. An alternate application is if you were travelling overseas and had bills and expenses that needed to be paid back home. In that circumstance you could appoint someone as Attorney for such time as you were travelling abroad. An Enduring Guardian document is a stronger document.

It empowers your appointee to make lifestyle choices on your behalf should you become incapacitated. An Enduring Guardian empowers the appointee to make almost whatever lifestyle choices you direct through the document. These usually include things such as what health care you receive, what medical procedures you undergo and what in-home care you receive.

These two documents are relatively simple, quick and cheap to draft. They afford you the peace of mind in knowing that in the event of unforeseen circumstances, you have a person appointed to deal with your financial and lifestyle matters and a set of guidelines and instructions which they must follow in making those decisions for you. Of course, everyone hopes to never be in the position of needing a Power of Attorney or Enduring Guardian. However, it is best to have the document there as a safeguard should something unforeseen happen to you.

The document does not give anyone any power until such time as that unforeseen circumstance occurs. Almost everyone should have these two documents to protect their interests.

Nick Pidcock at the Newcastle office of Burke Elphick & Mead Lawyers can assist you in making sure you have your affairs in order. Please Contact Nick with your Wills and Power of Attorney Enquiries.

Burke, Elphick and Mead deliver a large range of legal services including business and commercial law, family law, criminal, traffic, employment, wills and estates, compensation, motor vehicle and insurance Should you have any further queries, please do not hesitate to contact our office.
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Potential Penalties for Company Directors

Posted on March 12, 2010 by admin

It is important for Company Directors to appreciate the extent of their duties and obligations under the Corporations Act 2001 and Income Tax Assessment Act 1936. The Australian Taxation Office is able to pursue Directors personally for unpaid PAYG amounts of Company employees that have not been forwarded to the ATO.

Company Directors are jointly and severally liable for the debt claimed. Directors of Companies have a duty to ensure that they know every detail about the Company’s cash flow, and ensure that the Company’s tax obligations are being met. You are never a Director “in name only”.

Your duty as a Company Director in that respect does not end simply because you have delegated certain tasks within the running of the Company to another Director. You must always have your finger on the pulse. The Directors are jointly and severally liable for any amount claimed under the Penalty Notice.

This means that if you are the Director of a Company being pursued by the ATO, then the ATO is able to pursue you personally for the whole of the amount claimed without having to pursue the other Directors. If you are issued with a Directors Penalty Notice, there are steps which you can take to remit the debt to the ATO.

Under section 222 AOB of the Income Tax Assessment Act you have the following options open to you:

  • Pay the amount owed to the ATO
  • Make an agreement with the Commissioner of Taxation in relation to the Company’s liability
  • Appoint an administrator of the Company under section 436A of the Corporations Act.
  • Begin to wind up the company within the meaning of the Corporations Act Once you have been provided with notice of the Directors Penalty Notice, you may wind up the Company and your personal liability to the ATO will be remitted.

Time limits apply. You typically have 14 days within the date of the Penalty Notice to start winding the Company up. The Penalty Notice is usually provided by post and as such, the rule on postal service will allow for an extra 4 business days on top of the 14 day window, however, you should always act fast if you find yourself in that situation.

A Company does not begin to be wound up until the members of the Company (not the Directors) resolve by special resolution that the Company should be wound up. As such, once a Directors Penalty Notice is served an extraordinary meeting of the Company’s shareholders should be called so that it may be resolved that the Company be wound up. Of course the primary objective is to avoid ever being in a situation where you are required to respond to a Directors Penalty Notice.

This can very simply be avoided by ensuring that you are fulfilling your obligations as a Director including ensuring that the Company is meeting all of its tax obligations and ensuring that funds withheld from employees, be forwarded to the ATO are not going elsewhere.

Nick Pidcock is the Commercial Lawyer at the Newcastle office of Burke, Elphick & Mead Lawyers. Please feel free to contact him with her Commercial Law enquiries.

The culture at Burke Elphick & Mead™ is what sets us apart from other firms. We are a close-knit team of committed lawyers, who are passionate about people and their rights. Our clients have access to professionals with experience and expertise across most facets of the law, including. Business and Commercial Law, Family Law, Criminal La, Civil Law, Wills & Estates, Conveyancing, Motor Vehicle Claims, Accident and Insurance Claims, Compensation Claims, Workers Compensation Should you have any further queries, please do not hesitate to contact our office.
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Congratulations to Alice

Posted on February 19, 2010 by admin
Alice Davis

Alice Davis

Congratulations to our newest employee, Alice Davis who has been admitted as a solicitor today.

After completing her placement with Burke, Elphick and Mead Lawyers in 2009, Alice continued clerking with the firm on a casual basis until she joined the team full time in early 2010. Alice will now be working with Emma Mead and the Personal Injury Team.

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Time Limits for Compensation

Posted on February 11, 2010 by admin

The Motor Accidents Compensation Act, 1999 is clear that claims for compensation for personal injuries suffered in a car accident (when it is not your fault or not completely your fault) are to be lodged against the Compulsory Third Party insurer (the Green Slip insurer) of the car at fault within six months of the date of the accident. Beforehand, there is also the added requirement of reporting a car accident (where someone has been injured) to the Police.

The Police need to be notified within 28 days of the accident. In some instances, the Police will not come to the scene of the accident when there has been limited damage to the cars, the cars are driveable and people have suffered only minor injuries. Of course, when there is a major accident/collision and people have suffered significant injuries, the Police will attend. In some cases, the Police arrive after the ambulance and the injured person has been taken to hospital.

Nevertheless, the Police will take a statement from you. The next step is lodging the Claim Form against the insurer of the car at fault. An Accident Notification Form is a form that can be lodged within 28 days of the accident and within 10 days of the insurer receiving it, they must make a provisional determination on liability (and there is a presumption that if you are a pedestrian or a passenger liability will be admitted).

The advantage of lodging the Accident Notification Form (ANF) is that your medical expenses are paid almost immediately. There is however a cap that medical expenses and wage loss is paid up to $5,000.00. It is then that the longer form Claim Form is needed, and that Claim Form must be lodged within six months of the date of the accident. Once that Claim Form is lodged the insurance company has three months to investigate the circumstances of the accident and make a decision on liability.

During that time the insurance company will obtain a Police Report (and send you or your lawyer a copy) and interview their own driver, witnesses and may want to take a statement from you. If you do not have a lawyer, the insurance company will approach you directly, but if you have a lawyer, your lawyer will be in a position to give you advice whether you should or should not give a statement to the insurance company.

Once your claim is accepted, the insurance company will pay your reasonable medical expenses on an as-incurred basis and, in claims of financial hardship, pay wage loss. Most claims can be resolved in 18 to 24 months, but claims involving children and catastrophic injuries including paralysis and brain injury can take longer.

There is a three-year time limit to commence Court proceedings, but not an automatic right to go to Court when the insurance company accepts liability for your claim. In all instances, we recommend that you obtain legal advice, as the time limits are strict and claims out of time can be rejected, meaning you miss out on getting your medical expenses, rehabilitation and wage loss paid. The important thing is getting you back on your feet and back to your old life and back to work.

Emma Mead is our Personal Injury Specialist who can assist with your compensation enquiries. She is based at the Newcastle office of Burke, Elphick and Mead Lawyers.

DISCLAIMER
These articles were published with the express permission of Burke Elphick & Mead Lawyers. The information was correct at the time of publication, but personal injury laws are subject to legislation change from time to time and it is recommended that you contact Burke Elphick & Mead should you have any specific questions relating to any of the topics above.
Our Lawyers Merridy Elphick, Emma Mead, Michael Burke, Maria Walz, Ashley Bithrey, Ana Grguic and Kara Greiner also offer assistance in a number of areas, including Family Law, Personal Injury, Insurance or Compensation, Commercial Transactions or Contracts, Wills, Estates, and Powers of Attorney or Buying and Selling a Home or Business. Should you have any further queries, please do not hesitate to contact our office.
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Can I claim compensation if I don’t know who the owner or the driver is who caused my car accident?

Posted on February 11, 2010 by admin

Yes, but there are rules to making a claim against an unknown or unidentified driver, who is known as the “Nominal Defendant”. If you were involved in a car accident and have been injured, whether you were a pedestrian, passenger or driver, and the unknown driver or Nominal Defendant is at fault, you can still make a claim. The same time limits apply and the same notice provisions apply.

The accident must still be reported to the Police within 28 days of the accident. Secondly, the Claim Form is lodged against the Motor Accidents Authority, who will then refer your claim to one of the Compulsory Third Party insurers, who will take on the claim as if that insurer was the insurance company of the unknown driver.

Due Search and Enquiry
You must be able to show that you have taken all reasonable steps to find out who the driver is. This is called due search and enquiry. The Motor Accidents Compensation Act, 1999 is clear that the Claimant (that is, the injured person) must do everything reasonable to try and find out the identity of the car and/or the driver involved.

These things should also be done as soon as possible, and especially before “the scent goes cold”. Such things that you would need to do include:

  • Contact any witnesses to the accident;
  • Go back to the scene of the accident and doorknock on businesses or houses to see if anybody witnessed the accident.
  • Put an ad in the local paper and/or regional paper in the Public Notices section asking for anyone who witnessed the accident to come forward and contact you with any details.

In some instances, doing these things may not be practical, as you may have suffered serious injuries and are in hospital for a great length of time. If someone can make the enquiries on your behalf, that is reasonable. Importantly, reporting your accident to the Police means that the Police can take any steps they believe are necessary to try and track down the driver at fault. In doing these things, you protect your right to bring your claim for compensation for your medical expenses, wage loss, pain and suffering and care (if you qualify) when the driver cannot be identified.

If you feel you would like to discuss your options please contact Emma Mead who is our Personal Injury Specialist based in the Newcastle Office of Burke Elphick and Mead Lawyers.

DISCLAIMER
These articles were published with the express permission of Burke Elphick & Mead Lawyers. The information was correct at the time of publication, but personal injury laws are subject to legislation change from time to time and it is recommended that you contact Burke Elphick & Mead should you have any specific questions relating to any of the topics above. The culture at Burke Elphick & Mead™ is what sets us apart from other firms. We are a close-knit team of committed lawyers, who are passionate about people and their rights. Our clients have access to professionals with experience and expertise across most facets of the law, including. Business and Commercial Law, Family Law, Criminal La, Civil Law, Wills & Estates, Conveyancing, Motor Vehicle Claims, Accident and Insurance Claims, Compensation Claims, Workers Compensation Should you have any further queries, please do not hesitate to contact our office
Posted in Accidents & Insurance Law, Compensation Law, Legal | Tagged , , , | Leave a comment

Family Law Reviews

Posted on February 11, 2010 by admin

The Attorney General has recently released key reports examining the operation of the family law system and how the Family Courts deal with cases involving family violence. For the full report follow this link to the Attorney General for Australia website

http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/MediaReleases_2010_FirstQuarter_28January2010-ReleaseofFamilyLawReviews

If you have a family law matter, Merridy Elphick and Ashley Bithrey are our family lawyers working at the Newcastle office of Burke Elphick and Mead Lawyers.

Burke, Elphick and Mead Lawyers deliver a large range of legal services including business and commercial law, family law, criminal and traffic law, employment, wills and estates, compensation, motor vehicle and insurance law. Should you have any further queries, please do not hesitate to contact our office.
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Family laws could put kids in danger

Posted on January 29, 2010 by admin

This was an interesting article on the ABC website http://www.abc.net.au/

Family laws could put kids in danger
By Online political correspondent Emma Rodgers
The reluctance of some parents to report domestic violence in bitter custody battles could mean some children are returning to violent homes, Attorney-General Robert McClelland says. A report commissioned by the Federal Government into family and shared parenting laws says several barriers prevent parents raising allegations of violence in the home, for fear they could be seen by the courts as uncooperative.

Disincentives to report violence include a financial penalty if the allegations are not proved and the potential for a parent to be deemed “unfriendly” by the court. When asked on AM today if the disincentives meant children could be at risk of being exposed to further danger, Attorney-General Robert McClelland replied: “The answer to that is, potentially, and it needs to be addressed.” “There has been a fear reported that the allegations of violence may not be raised in the apprehension that the court may say, ‘You’re not being a cooperative parent’.”

The review has also found that the shared parenting laws have been misinterpreted, and were never meant to give a 50-50 custody split to each parent. The review’s findings are likely to anger some fathers’ rights groups who have previously complained that fathers do not get awarded enough time with their children in custody decisions. But Mr McClelland says the laws are about the rights of the child, not the parents’ desires. “It’s not for Parliament or any interest group to declare presumptions as to what is in the best interests of each and every child,” he said. “While the Parliament has and continues to reflect the community desire that there be shared parental responsibility, at the end of the day it is for judges and magistrates to decide.”

The Government is now considering its response to the review, but may not go as far as to make legislative changes to the shared parenting laws. “The Family Law Council suggested an education program may be adequate, and certainly the reports themselves highlight what the correct law is. The correct law … isn’t that the court presumes that there will be a sharing of time. Getting that message out will be first and foremost,” Mr McClelland said.

The review found that while most of the parents involved in shared parenting arrangements were happy with the way they were working, there were concerns for those who were at risk of ongoing violence. It also found that the family law system has “some way to go” in effectively responding to allegations of violence.

Merridy Elphick is our Family Lawyer working out of the Newcastle Office of Burke Elphick and Mead Lawyers.

Burke, Elphick and Mead Lawyers deliver a large range of legal services including business and commercial law, family law, criminal law, traffic law, employment law, wills and estates, compensation law, motor vehicle and insurance law. Should you have any further queries, please do not hesitate to contact our office.
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