Case Study: 13 wins for the worker over a 7-year fight

Case Study: 13 wins for the worker over a 7-year fight

By Andrew Wright 

After working in plaintiff employment law for over 20 years’, one of the most important qualities required is an indomitable attitude to fight for your client’s rights. Whilst this field of work provides an ongoing set of challenges, getting wins for ‘the little guy’ make it certainly worthwhile.   

A recently closed case I had the privilege to work on was Workers’ Compensation Regulator v Adcock [2022] ICQ 016. Dubbed ‘a world record’ for the number of appeals occurring over the past seven years with regards to Mr Adcock’s claim for worker’s compensation, there is cause for celebration after winning 13 of 13 appeals against Work Cover/ Workers’ Compensation Regulator.  

The Facts  

Mr Adcock was working as a FIFO camp cook in Roma, Queensland. He sustained an ankle injury from slipping over whilst carrying a box out of a freezer on 25 August 2015. As he was not capable of resuming employment, Mr Adcock made a claim under the Workers’ Compensation Act 

Mr Adcock’s injury was accepted as compensable under the Workers’ Compensation and Rehabilitation Act 2003 (Qld). However, WorkCover consistently tried to cease Mr Adcock’s weekly payments and benefits, as well as backdate the cessation by two years. 

Timeline of Events
  • 25 August 2015 – Date of injury.  
  • 29 October 2015 – Mr Adcock lodged application for workers compensation.   
    • WorkCover rejected workers compensation application.  
  • Mr Adcock submitted review application to the Employer (‘Respondent’)  
    • Respondent referred matter to WorkCover for further investigations.  
    • WorkCover rejected Mr Adcock’s application, and the Respondent confirmed this decision.  
  • 22 September 2017 – Mr Adcock appealed rejection again to QIRC.  
    • QIRC set aside Respondent’s rejection and ordered that Mr Adcock’s application for workers’ compensation be accepted.  
  • 20 January 2018 – WorkCover terminated Mr Adcock’s entitlement to compensation.  
    • Mr Adcock applied for review of decision.  
    • Respondent set aside WorkCover decision and determined that Mr Adcock had ongoing entitlement to compensation.  
  • 16 May 2018 – WorkCover terminated Mr Adcock’s entitlement to compensation again.  
    • Mr Adcock applied for review. 
    • 24 July 2018 – Respondent referred matter back to WorkCover for further investigations.  
    • Following further investigations, WorkCover terminated and backdated Mr Adcock’s entitlement to weekly payments of compensation and medical expenses to 26 August 2016, only 1 year and 1 day after the work injury. WorkCover communicated this decision on 6 November 2018.  
    • Mr Adcock sought review of the decision by the Respondent who determined that Mr Adcock was not entitled to payments of weekly compensation after 26 August 2016, and only had entitlements to medical expenses and hospitalisation until 21 February 2018. 
  • 25 June 2021 – Mr Adcock successfully appealed decision, finding that his incapacity had not ceased until 30 November 2017. Ongoing medical benefits were awarded until 27 February 2018.  
    • Decision was appealed by Workers’ Compensation Regulator.  
    • 24 May 2022 – The appeal was set aside and Mr Adcock was entitled to workers compensation until 30 November 2017, and medical benefits until 27 February 2018.  

The Outcome  

In the main two-day trial on 26 and 27 October 2020, Adcock v Workers’ Compensation Regulator [2021] QIRC 227, the Commission considered evidence of four expert medical witnesses, evidence from Mr Adcock himself, and another witness we called upon.  

Mr Adcock had the onus of convincing the Commissioner that his injury and subsequent disability gave him an incapacity for work preventing him from working as a cook, or in any other position which, based on his work history, might reasonably be available to him.  

The Commission considered previous cases which similarly dealt with the legal concept of incapacity for work. The Commission found that Mr Adcock’s ability to work ‘in any suitable employment’ was diminished or taken away entirely, making him ‘partially’ or ‘totally’ incapacitated.  

After years of arguing (and succeeding) on behalf of Mr Adcock it was found that WorkCover and/or the Workers’ Compensation Regulator had erred in their decision to cease payments to my client. The final appeal by the Worker’s Compensation Regulator was dismissed, and Mr Adcock was awarded workers compensation until 30 November 2017, and medical benefits until 27 February 2018.   

 

Client Experience 

“After 13 appeals of my workers compensation matter across seven years, I am very relieved it is over. Under Andrew Wright’s guidance I kept at it and stuck to my guns, and Andrew stuck to his. I couldn’t have asked for a better person to represent me. 

Andrew’s level of service was above exceptional, he always kept me up to date. I’d send him a text and he would respond straight away. The whole team was brilliant, including the reception staff. I really couldn’t give the firm more kudos.  

I want to show my kids and grandkids that I fought for the worker against the ‘big guys’; it was Andrew and his team who helped me do that.”Malcolm Adcock, Plaintiff 

 

Andrew Wright, Partner at Boylan Lawyers, directs the employment and industrial law practice areas. Mr Wright’s advantage is that he can act on matters within all facets of employment law, a practice that is uncommon despite the overlapping issues clients face. Mr Wright covers all employment issues from industrial relations, workers compensation, sexual discrimination, equal opportunity, to superannuation claims. He has the expertise to decide what application and jurisdiction (State or Commonwealth) will be of most benefit for his clients without ‘double dipping’ or missing out on any entitlements.  

If you have an employment law matter you would like to discuss with Andrew Wright, call us on 08 8632 2777 to arrange a 30-minute consultation.   

If any of these 10 changes happen in your life, it’s time to update your will

If any of these 10 changes happen in your life, it’s time to update your will

Old couple sitting on the couch smiling 

By Sebastian Hill

For your estate plan to be as effective as possible, it needs to be as up to date as possible. Quality estate planning is like having insurance in place for your family. It is insurance which protects the distribution of your assets, and ensures it’s done in the way you want. It also reduces the likelihood of family disputes arising, and unnecessary legal hurdles for your family after you die.

Not every life change needs to be updated in your estate plan, however there are some key changes which will most likely mean it’s time to update your will. Some of these life events include births, deaths, marriages, and changes in assets.

 

 

 

What can happen if you die with an outdated will?

Jean* died with an outdated will whereby the two Executor’s she had listed were unable to act because they had aged and lost capacity. There were also beneficiaries listed who had passed away and could no longer receive their entitlements.

Jean’s niece, our client, was the next person in line to be the Executor. She was required to take responsibility in dealing with the Public Trustee to prove the lack of capacity of the past Executors, and that the beneficiaries had died. The Estate took an additional 6-months to be distributed and cost the family considerable amounts of time and money.

*Names changed for privacy

 

How to know if you should update your will

Look at your current will and assess if the directions reflect your current position of what you’d like to happen when you are no longer here. Here are ten considerations which might prompt an update: 

  1. Change of mind – You might have changed your mind about who you have elected as your Executor, Substitute Decision Maker, Beneficiaries, etc. You may have also changed your mind about how you want to allocate your assets.
  2. Relationship status – Have any of your relationships changed? Such as entering a new relationship, married, re-married, divorced, or separated? If you are separated from a spouse but not divorced, they could still be legally entitled to your assets if your will is not updated.
  3. New family members – Have any children or grandchildren joined the family and need to be accounted for in your will?
  4. Health or disablement – Your medical needs may have changed, and you might need to nominate an enduring power of attorney or substitute decision maker. You might also need to make care provisions if you have dependants. Conversely, someone included in your will might have lost their ability to execute their responsibilities, meaning a new person will need to be elected.
  5. Deaths – We sincerely hope you haven’t had to face this, however if anyone elected in your will as an Executor or beneficiary has since died, this will now need to be updated in your estate plan.
  6. Changes in financial circumstances – If you have new assets in your name, or if you’ve experienced a significant increase or decrease in your estate, an update is required.
  7. Cash donations or gifts – What was once a substantial cash legacy in your will, might no longer be in real terms. With inflation on the rise, you may need to update any fixed sums in your will to a percentage instead.
  8. Gift allocation – Have you bought any artefacts or items which you intend to be inherited by specific beneficiaries?
  9. Ownership structures – If you own a business, entity, or asset whereby the ownership structure has changed, your estate plan should reflect this.
  10. Expressed wishes – Are your funeral instructions (burial/cremation) or other wishes after you die in line with your current wishes?

If any of the above changes have occurred in your life, we highly recommend you consider updating your will. You can provide us your instructions today via our online questionnaire here. If you prefer to speak to us over the phone, give our friendly customer service team a call on 07 8632 2777.

The minimum wage has increased, but my pay hasn’t. What should I do now?

The minimum wage has increased, but my pay hasn’t. What should I do now?

 

By Alison Martens

On 1 July 2022 the National Minimum Wage increased by 5.2% and the award minimum wages increased by 4.6% (fairwork.gov.au). This means that about $40 extra per week would be landing in the pockets of those employed under these agreements. 

For employees, this is good news, however some might be left wondering why their pay cheque hasn’t increased yet. Below I break down what steps you should take, or why your pay might not increase.

Check your eligibility

Not everyone in Australia will have their wage increase because of this decision by the Fair Work Commission. The decision affects the pay of approximately 2.7 million Australians who are on the national minimum or those who work under an award. If you’re not sure which award applies to you, you can use this tool here.

Calculating your new pay rate

If you fall within an award or receive the national minimum, you can calculate your new pay rate (including allowances) with this tool here.

Once you have calculated your updated wage, we recommend speaking with your employer to discuss having the updated rate reflected in your employment agreement.

If you work within the aviation, tourism, or hospitality sectors, it is important to note that the wage increase has been delayed until 1 October because of their slower economic recovery post Covid.

Employer refusing to increase wage

If your employer refuses or is unnecessarily delaying the increase of your wage, and you fall outside of one of the delayed sectors, you should seek legal advice.

You can obtain generic initial advice from the Fair Work Commission, however if your situation is more complex, it is best to obtain personalized advice from an employment lawyer. It can be hard to navigate these situations with employers, therefore obtaining the correct advice up front is important.

Our employment law team offers free 30-minute consultations, which will help you understand what your next steps should be suited to your personal situation. To book in, call Boylan Lawyers on 08 8632 2777.

Alison Martens, Senior Associate at Boylan Lawyers, has built an impressive career within the employment law area over her seven years practicing.

Case Study: Why you shouldn’t make handshake deals when it comes to the family farm

Case Study: Why you shouldn’t make handshake deals when it comes to the family farm

 

By Sebastian Hill  

Handshake deals between family members are a common precursor to many intergenerational farming disputes. As a disputed estates lawyer, I deal with the fall-out of handshake deals every day. Most notably, I was the instructing solicitor for one of South Australia’s largest intergenerational farming disputes in recent times, Roberts v Roberts [2021] SASC 72.  

 

The Facts

The dispute was between a father and son, whereby I acted for the applicant Mr Grant Roberts (Grant), the son of respondent Mr Jack Roberts (Jack). The dispute regarded an alleged oral contract between Grant and Jack, for the purchase of the family station, Pulgamurtie, for $2.6 million. Pulgamurtie is approximately the same size as Singapore and located outside of Broken Hill in remote New South Wales (NSW).

Over the years, and particularly in the four years Grant engaged me to work for him, Pulgamurtie increased significantly in value. By the time of trial, it was more than three times the value of the oral contract. Jack denied any agreement or discussion about the sale of Pulgamurtie to Grant for the originally agreed price of $2.6 million.

Grant had dedicated his life’s work to Pulgamurtie, always with the intention of one day owning the station. Our legal team argued that Grant had improved, maintained, and worked on Pulgamurtie, he also purchased plant and livestock. Grant acted to his detriment in reliance on Jack’s representations and encouragement that he would be the owner.

 

The Outcome

It was a privilege to act for Grant and direct a team of seven staff over four years through numerous applications, conferences, trial, and appeal court proceedings. My team was successful in arguing that Grant had established the elements of a cause of action in proprietary estoppel.

It was ordered that Grant be transferred title to Pulgamurtie for $3.8 million; based on the agreed purchase price adjusted for a change in value over nine and a half years since the first agreement. 

 

How to avoid handshake deals

The situation above arose from a simple handshake deal that was never properly dealt with. Handshake deals are usually a verbal promise in conversation that is never settled in a legal agreement and can be common among family members. If the promises aren’t kept, disputes can arise, and families end up in court.  In Grant’s case, his parents and his brother and sister all gave evidence at trial. 

The only way to avoid future disputes is to have an agreement prepared that expressly states everyone’s intentions. Now, that is much easier said than done. Often there is a very delicate balance of power between family members which should be carefully navigated to avoid raising any red flags.

Getting advice early is the number one way to avoid disputes, and your lawyer will be able to help you find ways to raise this in a sensible manner with your family members.

Sebastian Hill is the Managing Partner at Boylan Lawyers and specializes in disputed estates, intergenerational farm disputes and transfers, family law, and other practice areas. In 2022, Sebastian was named a finalist in the Partner of the Year Awards Wills and Estates category for his work on Roberts v Roberts.

Contact us today to organise a free 30-minute consultation with Sebastian Hill by calling 08 8632 2777 or email hello@boylanlawyers.com.au.

It takes a village to have a child: surrogacy in South Australia

It takes a village to have a child: surrogacy in South Australia

By Simone Cureton

They say it takes a village to raise a child, however in surrogacy world, we say it takes a village to make one. I am fortunate enough to work in one of the brighter areas of law, which involves helping Australian families work with their surrogates and create the family they’ve always wanted.

What is surrogacy?

Surrogacy is an arrangement between a couple/person and a surrogate wherein the surrogate agrees to become pregnant (or seek to become pregnant) and surrender custody of, and the rights in relation to, the child born as a result of the arrangement. Surrogacy is an option for people who are unable to carry their own child and must be ‘eligible’ in accordance with the Surrogacy Act 2019.

In Australia, only altruistic surrogacy is legal. This means that the surrogate mother cannot receive any payment or equivalent material reward. Only the pregnancy related costs (including medical) can be reimbursed.

What are the legal requirements of surrogacy?

In South Australia, the Surrogacy Act 2019 sets out the legislative requirements for the preparation of a Lawful Surrogacy Agreement (‘LSA’). The LSA is not an enforceable document, except in relation to the financial aspect of the Agreement.

It is an important document recognizing the intention of the parties, and is necessary to gain a parentage order after the baby is born.

What is it like being a surrogacy lawyer?

I have the pleasure of acting for many surrogates and intended parent/s on a regular basis. Being a past-surrogate myself, I have a deep understanding of the journey that all parties will go through.

I had the pleasure of acting for Sarah and Ben who entered into a Recognised Surrogacy Agreement with Danni and Troy. Danni carried Sarah and Ben’s child as a traditional surrogate. In 2020, all four adults were blessed with a baby girl, Evie.

In a surrogacy arrangement, following the birth, the surrogate is registered on the birth certificate as the parent. Sarah and Ben made an application for parentage in the Youth Court of South Australia which I helped facilitate. In this matter, I acted for both Danni and Troy, and the parents, Sarah and Ben.

Judge Eldrige made the Order for Parentage formally recognizing Sarah and Ben as Evie’s legal parents. Evie’s birth certificate was then amended by Births, Deaths and Marriages to reflect Sarah and Ben as her parents.

There is nothing quite like seeing a family come together and celebrating an exciting new chapter in their lives. Surrogacy is a team effort, and is exciting, scary and amazing all at the same time! I am passionate about surrogacy in Australia, both educating others and advocating for fulfilling and successful surrogacy arrangements.

If you are interested in this area of law and would like more information, contact us on 08 8632 2777 or email hello@boylanlawyers.com.au.