Statutory will: Compensation proceeds

By wjmadden Re K’s Statutory Will [2017] NSWSC 1711 concerned an application for an order authorising a will to be made on behalf of an incapacitated minor (a 7 year old boy), K. As a result of an award of personal injury compensation against a local health district, K was possessed of a substantial estate.
Detailed reasons were published in this matter arising from (at [27]):
… (a) a contention of K’s mother that the will to be authorised for K should include provision for establishment of testamentary trusts for the benefit of a range of people, and institutions, beyond those presently engaged in …read more

Source:: Bill Madden

Wrongful life issues? Claim by child fathered by an undercover police officer.

By wjmadden TBS v Metropolitan Police Commissioner [2017] EWHC 3094 (QB) is an interlocutory decision dealing with an application by the defendant to have the claim struck out. The facts of the matter are (to say the least) unusual, but to some extent touch on wrongful life topics. As stated at [1] -[2]:
The Claimant was born in September 1985. His mother was a political activist who is referred to as ‘Jacqui’. His father was Bob Lambert. Lambert was an undercover police officer who, using the pseudonym Bob Robinson, pretended to share Jacqui’s political views and formed a liaison with her which resulted …read more

Source:: Bill Madden

Supreme Courts tell legal regulators their limitation defences are bollocks

By Stephen Warne In England, the stern sounding Bar Standards Board brought disciplinary proceedings against a black barrister, Portia O’Connor, the first barrister to become a partner in one of the very modern alternative business structures they allow in old Blighty these days. They succeeded but the decision was overturned on appeal and the appellate tribunal was not complimentary about the procedures of the Board. So the barrister sued the Board for discrimination. The regulator relied on limitation defences. The Supreme Court has just decided that the defences were misconceived: O’Connor v Bar Standards Board [2017] UKSC 78. Should …read more

Source:: Lawyer`s lawyer

Australia has finally achieved marriage equality, but there’s a lot more to be done on LGBTI right

By Marius Smith By Paula Gerber, Monash University
It took a long time, but on Thursday Australia became the 26th country to achieve marriage equality.
The LGBTI community is euphoric and relieved with this hard-fought victory. But there is also trauma from the drawn-out postal survey campaign, which saw attacks on rainbow families and communities. It left many feeling vulnerable and distressed. In some cases, it brought back painful memories of the bullying and abuse they were subjected to in their adolescence.
But once the celebrations from Australia achieving marriage equality have subsided, the fight for LGBTI people to live lives free from discrimination will continue.
Marriage …read more

Source:: Castan Centre for Human Rights Law

EIFY: terms of use

By war Following on from this week’s earlier post about the copyright issues in the EIFY case, McDougall J also held the “clickwrap” agreement was enforceable, but the breach did not result in any compensable loss.
You will remember that EIFY and 3D Safety provide competing web-based induction services for the construction industry. The principals of 3D Safety had accessed EIFY’s site in the course of developing its websites for Mirvac and Thiess.
Before a browser could access the web-based induction services provided by EIFY, he or she had to check a box acknowledging that he or she had read and agreed to the …read more

Source:: IP Wars

Costs recovery in pro bono cases in Victorian state courts: Part 1

By Stephen Warne I was asked to talk to my colleagues at the Victorian Bar recently in relation to costs recovery in pro bono cases. It is now more certain that costs may be recovered from the other side by litigants who engage their lawyers in a greater variety of pro bono bases. That is as a result of both recent developments in the judge-made law and changes to the Supreme and County Courts’ rules. Over the next few days, I will publish, in digestible chunks, the paper I distributed. What follows is the first part.
The issue
The amendments to Order …read more

Source:: Lawyer`s lawyer

Safe harbours to be Extended

By war The Commonwealth Government introduced the Copyright Amendment (Service Providers) Bill 2017 into Parliament today.
As its name suggests the purpose of the Bill is to extend the class of persons who can claim the benefits of the safe harbour provisions in the Copyright Act 1968 provided in sections 116AA to 116AJ.
The way the amendments will work is essentially to remove the references to “carriage service provider” and replace them with a new reference to “service provider”.
For this purpose, “service provider” will be defined to mean:
116ABA Definition of service provider
(1) Each of the following is a service provider:
(a) a carriage service provider;
(b) …read more

Source:: IP Wars

Tribunal finds the applicant’s professional valuations are “approved valuations” for the purposes of the margin scheme

By chrissievers In Decleah Investments Pty Ltd and Anor as Trustee for the PRS Unit Trust and Commissioner of Taxation [2017] AATA 2418 the Tribunal found that the professional valuations obtained by the applicant were not “approved valuations” for the purposes of the margin scheme in Division 75 of the GST Act. The Tribunal found that the only “approved valuation” before […] …read more

Source:: Chris Sievers – Barrister

New book: Tensions and traumas in health law

By wjmadden This new book Tensions and Traumas in Health Law (Ian Freckelton & Kerry Petersen) builds upon the earlier titles Controversies in Health Law (1999) and Disputes and Dilemmas in Health Law (2006). Under the same editorship, it is substantially larger (37 chapters instead of 18 and 30 respectively).
The chapters are broken up into 10 parts covering Human Rights Issues; Ethico-Legal Issues; Global Health Issues; Consent Issues; Privacy and Confidentiality Issues; Reproductive Technology Issues; Health Research Issues; Death and Dying Issues; Legal Liability Issues; and Reform and Regulatory Issues. …read more

Source:: Bill Madden

Investigation of medical staff: Access to documents

By wjmadden Amos v Western NSW Local Health District; Arnold v Western NSW Local Health District [2017] NSWCATAD 359 arose following an incident when a cardiologist collapsed during a procedure, which later resulted in an investigation by the director of medical services at the hospital. Following that investigation, three doctors made a complaint about the handling of the incident.
The NCAT application sought a review of the hospital’s refusal to release certain documents which came into existence as part of the investigation.
The hospital’s decision was ultimately affirmed, with the Tribunal finding that the public interest factors against disclosure of the personal information were …read more

Source:: Bill Madden