Further misconduct has been revealed by the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry.
Commonwealth Bank’s insurance arm has refused to pay out on insurance claims for heart attacks based on the out-dated criterion they use to define ‘severe’ heart attacks. The Royal Commission has heard the CBA’s CommInsure admit to publishing misleading advertising about their cover and to knowing at the time that their definition of heart attack ‘didn’t reflect the universal definition’.
Not limited to heart attacks, CommInsure also refused to pay out for a breast surgery, based on another out-dated definition of ‘radical’ breast surgery which only included mastectomy. Once again, the insurance company’s definition was not found in the publicly available policy documents. In this case, the operation involved a combination of breast-conserving surgery and radiotherapy, which is now commonly used instead of a complete mastectomy. CommInsure had not updated its definition to keep up with medical advancements until 2017, meaning treatments before this year were not covered.
Other companies that have been asked to appear before the Royal Commission in relation to insurance practices include AMP, TAL, REST, Allianz and Youi. What is clear from the findings of the Royal Commission is that misconduct is not limited to any one area in the financial services industry.
If you have been victimised by the misconduct of an insurance company, or have any queries relating to issues featured in this article, please do not hesitate to contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.
The list commonly known as the ‘airport watch list’ (although it also applies to international travel by sea) is used by the authorities to prevent the unauthorised removal of a child from Australia.
Children in Australia cannot leave the country without the consent of their parents, and children subject to ongoing parenting proceedings also cannot leave without the consent of the other party or a court order, according to sections 65Y and 65Z of the Family Law Act 1975. Child abduction in breach of these sections is punishable by imprisonment of up to 3 years. If the child’s name is placed on the Family Law Watch List, the departing parent will be stopped and not allowed to leave.
To place a child’s name on the list, one must apply for a court order and if successful, present this order to the Australian Federal Police who can enforce at all international departure points. In granting the order, the Court would consider the best interests of the child, and whether there is a real and immediate risk the child will be removed and not returned to Australia. Also, the order can be unconditional (barring all travel) or dependent on certain conditions being met.
Once a child’s name is on the Family Law Watch List it will remain there until they turn 18, unless limited to a shorter time period. Many names remain on the list long after the threat is gone and failing to apply for a Discharge Order to remove a child’s name can have unintended negative consequences. The children who were once protected under the order may be caused inconvenience and distress if they begin to travel internationally as teenagers, for example on school sports trips or with friends after their HSC exams.
Apart from the Family Law Watch List, another possible solution is to apply for an application under section 67ZD to have the passport of the child and any other concerned person delivered to the court.
If you are concerned about your child’s overseas travel, or you have any queries relating to the issues raised by this article, please do not hesitate to contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.
What is Domestic Violence? Domestic violence is referred to being violent, abusive or intimidating behaviour in a relationship and includes social, physical, financial, sexual, emotional and mental violence. It does not have to occur within your home as long – as it happens within a relationship, it is deemed and classified to be a ‘Domestic Violence.’
Such an act occurs when someone close to you has the power and control over you and this control/abuse can be expressed in different ways.
Physical abuse:
This is where the perpetrator is hurting victim physically.
Emotional abuse:
This is when someone is emotionally abused and attacks your worth and independence.
Financial abuse:
This is when someone controls your finances and ensures that you are financially dependent on them in a manner you are always obliged to ask them for money. This is also classified as a form of domestic violence.
Social abuse:
This abuse takes place when someone insults or humiliates a partner in front of other people and ensures that the victim is isolated from family and friends and is controlled in what he/she does.
Spiritual abuse:
This form of abuse involves the perpetrator preventing the victim from having his/her own opinions about religion, cultural beliefs and values. This also includes manipulating your thoughts on spirituality in order to make the victim feel powerless.
Do you know someone who is undergoing domestic violence and what can you do about it?
Always reassure the victim that he/she can leave where he/she feel unsafe and that it is urgent that the victim talks to someone who he/she can trust such as a friend, counsellor or social worker. They should talk to the police if they feel unsafe and if their life is in danger. The police are there to protect them.
Kindly also advise the victim to reach out and obtain advice from either their solicitor or call 000 or 1800 RESPECT. Translation services are also provided via 13450 number. Please also check out your rights at www.domesticviolence.nsw.gov.au, phone:1800 656463 (NSW). Kindly remember that if you are a victim, you do not have to put up with the situation believing that you do not have a choice. You do have a choice and at no stage does one need to succumb to these excruciating circumstances.
We are all aware of the recent death of Ms. Kaur at her Glenwood home on 15 January 2018. Her husband Mr. Jagdish Singh was subsequently charged with murder. It was only upon the police investigating the matter, did the unfortunate domestic violence incidents relating to the family become public knowledge. If the community members, family members or friends had in fact known to help Ms Kaur and reach out, maybe her life could have been saved.
If you are aware of anyone or if you are undergoing domestic violence, please contact the emergency hotlines outlined above.
Please also do not hesitate to contact Freedman & Gopalan Solicitors at 02 8917 8700 in order to discuss the situation. All discussions held will of course be kept confidential and you do not have to feel obliged at any stage to put up with it for the sake of family or community.
In the coming weeks the NSW Parliament will debate new laws that would create a new strangulation offence, in an effort to reduce domestic and family violence. Non-fatal strangulation is a key indicator of a fatal attack, with one in four domestic murders preceded by strangulation.
The NSW Crimes Act (1900) already contains two strangulation offences, however less than half of the prosecutions under these laws result in convictions. Under section 37 of the Crimes Act 1900 (NSW) the offence of choking, suffocating or strangulating carries a maximum sentence of 10 years, but first it must be proven that the victim was rendered unconscious or unable to resist, or that the strangulation occurred in the course of an indictable offence, such as sexual assault. Due to this high threshold, many strangulation incidents are prosecuted under section 61 as common assault, which carries a maximum sentence of 2 years.
The new law would only require non-consensual and intentional choking, strangling or suffocating and it would carry a maximum sentence of 5 years.
This new strangulation offence is easier to prove and would mean less strangulations prosecuted as the lesser offence of common assault. It would also be a red flag to authorities regarding future violence when considering ADVOs and granting bail.
If you have experienced domestic or family violence, or have any queries relating to the issues featured in this article, please do not hesitate to contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.
“Affray” is where one uses, or threatens to use, unlawful violence towards another person and causes a fear of personal safety, that individual to be upset or frightened. This is covered in Section 93C of the Crimes Act 1900 (NSW).
One can also be guilty of affray if:
- A third person was present at the scene to observe your violence; or
- A third person of reasonable firmness had been present at the scene and was personally affected by this violent behaviour.
Affray can occur in either a private or public place, regardless of whether or not a third party is even likely to have been present at the scene. In the Matter of R v Sharp (1957), the Court outlined that: “if two lads indulge in a fight with fists, no one would dignify that as an affray… whereas if they use broken bottles or knuckle dusters and drew blood, a jury might well find that it was, as a passer-by might be upset and frightened by such conduct.”
This offence carries a maximum penalty of up to 10 years imprisonment. An assault, for example, causing bodily harm only carries a maximum penalty of 5 years. An assault charge carries a maximum penalty of up to 2 year in prison.
The prosecution only needs to prove, by way of evidence, the violent conduct inflicted upon another person. This can be substantiated by video recordings, without the need to identify an alleged victim! Accordingly, affray appears to be increasingly implemented as a charge against individuals, in cases of minor assault. In addition, affray has been raised in instances where the prosecution lacks evidence to prove an assault charge.
In the recent matter of Aouli v R (2012) NSW CCA 104, Mr Aouli did not cause any injury to anyone. However, the Court found that the significant fear was “undoubtedly endanger[ing] members of the public.”
A charge to affray can only be rebutted by proving that the nature of the violence was undertaken as a means of self-defence or under duress. A defence may also be raised on the basis that the conduct could not, or did not, cause any witness to be alarmed.
In the event that you get charged for assault or affray, please do not hesitate to contact Freedman & Gopalan Solicitors (02 8917 8700).
Recently the Supreme Court of NSW dismissed a plaintiff’s claim in equity, on the basis that the deed he relied upon was not validly executed, and there was no legally binding contract between the parties.
In the case, the plaintiff James Brown agreed to be the lender for a hotel and function business that was struggling financially. The first defendant was Tavern operator, the company operating the business, and the second and third defendants, Gregory Nixon and Bronwyn Tallis, controlled the company.
The parties entered into a Heads of Agreement in May 2012 where Brown greed to pay certain debts in exchange for a being appointed director and shareholder of Tavern Operator. Following this, Brown made payments amounting to around $200,000 up until September 2012. On 21 September 2012, Nixon and Tallis signed a document, which was expressed to be a deed, stating that Brown had paid debts for the business and that one half of the property and one half of shares in Tavern Operators, would be transferred to him upon execution of the deed.
Brown commenced proceedings in 2015 asserting his supposed rights under the signed document. The Court considered two issues:
- The first issue concerned whether the signed document was a validly executed deed. The Court held that it was, having found that the witness who attested to Nixon and Tallis’ signatures was not in fact present when the document was being signed. In accordance with law, this means that the signed document is not an executed deed and therefore not enforceable.
Further, it was found that Brown had presented the documents to Nixon and Tallis with the impression that they were merely for “security”, to be kept “in a drawer”, in the event that there was a default in repayments to Brown. The Court held that, if Brown’s claim had succeeded, the defendants would have been successful in a cross-claim that there was unconscionable conduct by Brown in misrepresenting to the defendants what the signed document really was.
- The second issue concerned whether the Heads of Agreement entered into, could be considered a legally binding contract. In the event it did, Brown would be able to succeed in his claim regardless of whether the deed was validly executed. The Court found however, that the agreement was also not binding or enforceable as the only consideration given was past consideration.
In contract law, consideration, which is an act or forbearance put forward to induce the other party into the contract, is one of the elements required to establish a valid contract. Common law, per Re Casey’s Patents [1892], holds that past consideration is not considered good consideration. Hence, the Heads of Agreement in this case, could not be held a valid contract.
Brown was unable obtain any parts of the property or shares in Tavern Operators. This case indicates the importance of ensuring that each element of a deed or contract has been correctly addressed for it to be enforceable.
If you have been a victim of misrepresentation or unconscionable conduct in a deed or contract, or have any queries relating to issues featured in this article, please do not hesitate to contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.
Recently, an established Jeweller in India Kalyan Jewellers had released an advertisement screening the famous actor Mr Amitabh Bachchan, (and Swaitha Bachchan Nander for the Hindi Version and Malayam Actress for the South Indian version).
The advertisement portrayed a scenario where a pensioner wrongly received a pension twice a month instead of having received it only once a monthThe advertisement shows the father and daughter visiting a bank regarding the father’s pension being credited twice, and they had attended the bank to notify this and request the money to be returned. The bank officer then asked him to retain the funds wrongly received as the procedure to return the money was “tiresome and cumbersome”! “Who will even know” is what the manager asked Mr Bachchan in the advertisement. The advertisement then portrays the bank officials/officers conveying to a pensioner as to why he would bother to in fact do such an act in this day and age!
You can check out the advertisement at the below link if you haven’t watched as yet: https://twitter.com/SrBachchan/status/1019210031915560960
However, subsequent to the advertisement becoming very popular, it got into trouble for its portrayal of the bank officers, which according to banker’s association in India was conducted in bad taste. They stated that the advertisement degraded and aimed to create the distrust in the banking system, amongst public and reasonable people. The jewellery group issued a statement recently where it confirmed that the advertisement would be removed from all media with immediate effect and apologised stating;-
“We understand that the advertisement has hurt sentiments of some people including members of our esteem banking community, All India officer’s Confederation (AIBOC). Any such hurtful interpretation being drawn is unintended, we state that the advertisement was a work of fiction and not a reflection of banking employees at large. We sincerely regret the inadvertent hurt caused and withdraw the advertisement from all media within immediate effect”.
At all stages, one has to be vigilant and prudent to ensure that information conveyed is at no stage derogatory or defamatory to any other person or organisation at large. If such information is found to be derogatory or defamatory, a victim will be eligible to obtain damages for the same. To avoid the same, one has to be prudent at all times that the information passed around; (especially in the current social media) does not convey or disseminate facts which are untrue.
If you have been a victim of defamation or have any queries relating to issues featured in this article, please do not hesitate to contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.
Recently an article written about our Principal, Mittu Gopalan, was featured on the Sydney Morning Herald. She has received an outpour of support and is grateful for the kindness shown by so many people in the Australian community. The article has now been featured all over Australia and we are thankful of the continued support.
The article was written by our very own Maneesha Gopalan! A heartfelt and well-written piece on the effects words can have on one’s self-worth, and the effects racism still has in Australian society.
Recently, we had the pleasure of hosting year 10 student Hemisha, for her work experience. We thoroughly enjoyed having her and her enthusiastic personality around the office. Read below for Hemisha's experience at our firm in her own words.
"This week I embarked on my Year 10 Work Experience at Freedman and Gopalan Solicitors. Upon entering the workplace I had certain expectations and Freedman and Gopalan exceeded these expectations. They greeted me with kind, caring staff members who were ready to help at a moment’s notice and truly made me feel welcome at this prestigious law firm. This week I filed, archived, attended court, scanned and collated documents and assisted secretarial staff. I learnt many new skills and made plenty of new friends. I learnt how to destroy files, archive, use programs, conduct myself in a professional and appropriate manner and come to terms with the city around me.
The reason I chose to do my Year 10 Work Experience at a Law Firm was because I have an interest in legal matters and was still unsure if the path of becoming a lawyer was what I truly wanted to do. I embarked on this week with trepidation and curiosity and now finally after concluding my work experience and spending the last 5 days at Freedman and Gopalan I have decided that I am still unsure about becoming a lawyer. However, this week was very insightful into the everyday life of a lawyer and has cleared my doubts and perceptions I had in place before entering the workplace. I’ve learnt that the life of a lawyer often follows a schedule but is often unpredictable as well. I’ve learnt that becoming a legal representative means you deal with people from all walks of life and that sometimes you put must put your personal views aside for the benefit of a case.
I had multiple surprises this week and was lucky enough to attend court twice, once for a criminal and the other for a family court matter. One surprise for me this week was how friendly and welcoming the staff at Freedman and Gopalan were. Both the criminal and family courts were very different and similarities between the two were stark. The atmosphere of both courts was subdued and serious and a contrast between the two courts was that they both had different court proceedings. The criminal case I viewed was a mention compared to the interim hearing of the family court. The mention featured a magistrate and the interim hearing, a judge. In the interim hearing there was also a court officer, a transcriber and a trainee judge, a very rare sighting which I was lucky enough to see.
Overall, my week at Freedman and Gopalan was a pleasure and I was lucky enough to have been accepted for this opportunity at their firm. I thoroughly enjoyed my time and would recommend to anyone looking for Year 10 Work Experience to apply at Freedman and Gopalan to experience the life of a lawyer, meet their caring and charismatic staff that made me feel like a part of a team and for the new experiences and skills that I got to learn."