Author: bc-lawyers

Medical professionals have a duty of care to patients to ensure their safety and well being. A case of medical negligence happens when treatment falls below an acceptable standard. The negligence can be by omission i.e. failure to do something, or commission, i.e. doing something that caused injury or harm. If standards are not met, you may have a claim. How to prove medical negligence? Where the treatment you have received has fallen short of an acceptable standard, you may be entitled to compensation. To prove medical negligence has occurred, you must prove that the treatment received fell below the standard of care and skill that a reasonable professional would have provided in the same circumstances. It must also be shown that your injury would have been avoided if your care had been appropriate. Normally this is done by getting an opinion from another doctor in the form of a written report. Making a medical negligence claim If you think you have been hurt by inadequate medical advice or treatment, then talk to us about making a claim for medical negligence. You might think taking legal action is stressful and expensive but we can take care of things and help you on a No Win No Fee...

An article in today’s Advertiser has revealed a soon to be launched website that aims to streamline divorces and help divide property between separated couples, in a bid to reduce legal fees and assist parties to remain amicable. At Belperio Clark, we are committed to helping clients achieve outcomes in respect of both property and parenting matters in the quickest, easiest and most cost effective way. However, a ‘one size fits all’ approach is fraught with danger, and may lead to unsatisfactory outcomes for many. Each family’s situation in the midst of a separation is different, and needs to be handled with care and attention. The upcoming website appears to have been constructed around a database of past Court judgments and settlements, taking into account the separated parties’ assets and circumstances, and comparing them to other couples’ situations and the ways in which those have been dealt with in the Court. It is important to note that family law matters that reach a trial stage and achieve outcomes imposed upon them by a Judge account for approximately only 5% of all family law matters. These matters often include dysfunction, where parties find themselves simply unable to negotiate (with or without the assistance of...

With new land tax provisions coming into effect on 1 July 2020, many land owners have already received letters from RevenueSA ‘requesting’ that they visit the RevenueSA portal to upload and/or confirm required information. For many, this may be a demanding and complex task, as required information may include details of trust arrangements (including supporting documents), details of related companies and various nominations. These letters 'request' taxpayers to log in to the portal by various dates in June 2020, so as to give RevenueSA more time to process the information. However, this is not compulsory by law. Relevant legislation provides the following: Trustees must disclose the existence of trust relationships by 31 July 2020. Trustees under discretionary trusts must nominate a designated beneficiary by 30 June 2021 or the ability to nominate may be lost.Trustees have until 30 June 2021 to nominate the beneficiaries of a fixed trust, or the unitholders of a unit trust, for the 2020/2021 land tax year. Accordingly, there is no legal requirement to log on to the portal and attend to the above matters immediately. That said, it may be beneficial to do so as early as possible, so as to give yourself sufficient time to plan for the upcoming changes (and in particular, what nominations can and should be made). For more details, see RevenueSA’s updated website and recent...

disclaimer/use of this informationthis information is general in nature and does not constitute legal advice. you must not rely on it. legal advice based on your specific circumstances should be sought by you. On 7 April 2020, the National Cabinet announced a Mandatory Code of Conduct (Code) to apply to small and medium sized commercial tenancies impacted by the COVID-19 pandemic. The Code aims to alter the rights of affected landlords and tenants for commercial tenancies and is intended to have nationwide application. However, each State needs to introduce legislation or regulation to adopt, implement and enforce the Code. What is the Code? The Code applies from 7 April 2020. It will apply to commercial tenancies for as long as the Commonwealth’s JobKeeper program operates. The Code applies to: small or medium sized commercial enterprises (including retail, office and industrial tenancies) with an annual turnover of less than $50 million per year (measured at the franchisee level for franchises and at the group level for retail corporate groups). It is thought the intent is for the grouping to apply to all corporate tenants, not just retail groups; andthat are eligible for the Commonwealth’s JobKeeper program.   The key requirements The Code is based on good faith leasing principles and is designed to encourage...

When preparing a Will, confusion often arises when considering whether to also prepare an Advance Care Directive (ACD) or a Power of Attorney (POA). Each of these documents serves a separate yet equally significant purpose, and are important to have in place for the security that each provide.            A POA is useful in situations where you still have capacity (essentially the ability to understand what you are doing) but are otherwise unable to act for yourself, for example if you are overseas or are in hospital. It gives another person, your Attorney or ‘donee’, the authority to deal with your affairs such as purchasing property or operating your bank account. Nominating an Attorney does not mean you lose control of your affairs, and you can always limit their authority. It is important to have a valid and up-to-date POA document in place to ensure that a Court does not appoint someone to look after your affairs if you ever become incapacitated. If you wish your POA to continue despite your loss of capacity, you need an Enduring Power of Attorney (EPOA).           Alternatively, an ACD allows you to appoint another person to make decisions about your health care and welfare in the event that you become unable to make those decisions in...

Many people find themselves in a situation where there is a judgement debt against them without their knowledge. A judgement debt is an enforceable Court order, and can affect your credit rating. It might be the case that you did not receive the original claim in the post, and therefore were unaware of the proceedings, or it might be the case that you have a reasonable excuse for not having complied with the timeframes or procedures, and have an arguable case against the judgement debt. If you are aware of a judgement debt that has been made against you, it is very important to act urgently and seek legal advice. You may be able to apply to set aside a default judgement if you can prove the following: You have an arguable case on the merits; andYou have a reasonable excuse for not having complied with the rules with respect to filing a defence within the 21 day time limit. A reasonable excuse must be one which illustrates why you could not or did not file your defence on time. There may be many reasons for this, such as not receiving the claim, moving address, are on holiday, an error with respect to the address for service, the claim being posted to a company, agent, or accountant, or otherwise...

Earlier this year it was announced that the two remaining locations of Hog’s Breath Café in South Australia were being forced into liquidation. This resulted in outrage from the wider community, with the sudden nature of the announcement causing significant inconvenience and turmoil to employees of the franchise and those who had made prior reservations at the restaurant. In a swift turn of events, Hog’s have announced that they will re-open their doors at Glenelg under new management in hope of reigniting the success that the restaurant chain have known in the past. This incident is a stark reminder that when entering into a franchise, due diligence must be carried out in relation to any legal documents you are signing as well as the Franchise Agreement. A franchisee typically has significant obligations under the agreement in an insolvency event, and those obligations can extend to the individual through personal guarantees. A senate inquiry into the operation and effectiveness of the Franchising Code of Conduct produced a report earlier this year. This report advised that it is vital for a prospective franchisee to obtain ‘professional and informed legal and accounting advice before entering into a franchise agreement or contracts related to a franchise opportunity’. (Parliamentary Joint Committee on Corporations and Financial Services – Fairness in Franchising March...

An investigation by the Australian Consumer Watchdog and subsequent interim report by the Australian Competition and Consumer Commission (ACCC), focusing on the warm climate regions such as the Riverland in SA, has revealed concerning practices. These range from disputes over quality assessments to some wine grape growers experiencing wait times of up to 9 months in order to receive payment for their grapes. There is typically a significant disparity between wineries and growers. The ACCC noted that this imbalance is restricting the growth of the Australian wine industry. 4 key points were highlighted in this interim report: Quality assessment - the lack of an objective measure for quality assessment is causing difficulty for growers on delivery. Uncertainty on pricing – the lack of certainty in pricing causes difficulty for growers in managing profitability for their vineyards. The ACCC has recommended implementing indicative pricing for growers. Nevertheless there may be legal ramifications to winemakers by way of price signalling. Long term payments - the Wine Industry Code of Conduct implements a staggered payment method, which takes into consideration both the timing for growers cash flows, and also the timing for wine production after delivery and for orders from retailers and distributors. The ACCC’s report has identified many growers are waiting for periods...

It is common for businesses to provide a warranty against defects to consumers such as to the nature, quality or performance of the Goods or Services. Warranties can be provided in documents, advertisements in your business premises, or in discussions with the customer.  In such situations the warranty document you provide must comply with specific Australian Consumer Law (ACL) requirements. The ACL requirements override anything else you state. You may say that you will: Repair or replace goods (or part of them) Resupply or fix a problem with services (or part of them) Provide compensation to the consumer if any fault arises within 12 months of the purchase of the goods or the supply of services or a combination of goods and services by saying ‘1 year warranty’. In such circumstances the ACL may still give the consumer rights if defects occur after 12 months. Furthermore the ACL sets out what you need to state in a document about warranties, such as procedures to be followed. There is also what is referred to as the Mandatory Text requirement. This is essential for you to state. It is specified in the ACL. The text relates to the guarantees that cannot be excluded. The text specifies the circumstances when the consumer has the choice to have goods or services repaired,...

For many, preparing a Will can be a daunting task. There are often concerns about the time involved or even thinking about death. However, given the rising number of inheritance disputes, having a professionally drafted Will is more critical than ever. Your Will ensures that your assets are distributed in accordance with your wishes. Take for example a couple who have been dating on-and-off again for 3 years but then the relationship ended. The law may conclude on the facts that they were in a de facto relationship for a time. As such, even though the relationship ended, the surviving individual may claim against the family and the estate will be in litigation for sometimes several years. DIY Will kits are relatively inexpensive to purchase. However the money you save upfront can be far outweighed by the issues faced by your loved ones upon your passing. If errors are made within the document, including whether the strict witnessing rules are adhered to, then the document could be deemed invalid. DIY Will kits are unable to provide you with options and guidance regarding complex situations including blended families, trusts or self-managed super funds. Neglecting to attain expert advice could leave your assets vulnerable to unnecessary tax and prolong the grant of probate.  Making sure your...

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