Wed 02 2017

WA Insurance update – Issue 3

Contents

Workplace injuries

Pre-existing injury at work found not compensable
Court confirms burden of proof and test for causation in workers’ compensation
Solicitor’s failure to identify correct defendant denies plaintiff’s claim
Strict termination notification requirement confirmed
High Court confirms ‘but for’ test for causation

Manufacturer’s liability

Careless acts not reasonably foreseeable

Motor vehicle accidents

Turning driver not negligent in collision with overtaking motorcycle

Medical malpractice

Patient loses claim that doctor’s failure to diagnose and treat melanoma caused early death

Occupiers’ liability

Another collapsing chair results in award of damages

Battery and intentional infliction of harm

Cultural norms considered in evaluation of tortious conduct

Fast facts

Changes to the WorkCover WA Guidelines for the evaluation of permanent impairment
Injured workers entitled to PBS medications
Changes to regulations for medical and allied health fees

Workplace injuries

Pre-existing injury at work found not compensable

The District Court has dismissed a worker’s appeal against an arbitrator’s finding that she had not suffered an ‘injury’ as defined in the Workers’ Compensation and Injury Management Act 1981 (WA) (Act).

In 2010 Ms Slater fractured her ankle at work. In 2011 and while at work with a new employer, BHP Billiton Iron Ore Pty Ltd (BHP), she walked across a flat surface to fill up her drink bottle when her left ankle just ‘gave way’ and she developed bruising and swelling. There was no specific report of her twisting or stepping on uneven ground. Ms Slater was severely overweight and had flat feet.

After BHP denied liability on the basis that she did not suffer an ‘injury’ as defined in the Act, Ms Slater lodged an application for weekly payments and medical expenses.

The arbitrator found that Ms Slater’s injury was the natural progression of a pre-existing morbid condition and did not constitute an injury by accident under the Act. Although it occurred while she was at work, there was strong evidence suggesting it would have happened wherever she was and that no particular incident or activity would have accelerated or contributed to that incident at that time. The arbitrator therefore dismissed Ms Slater’s application.

His Honour District Court Judge Parry refused Ms Slater leave to appeal. Ms Slater contended that the arbitrator failed to apply Ansett Transport Industries (Operations) v Srdic (1982) 66 FLR 41 in determining whether there had been a personal injury by accident. His Honour found that, while the arbitrator did not cite Srdic or explicitly discuss the principles, his decision was consistent with Srdic. The arbitrator found that Ms Slater had not proved that it was more probable than not that she suffered a ‘personal injury by accident’ in 2011 as he was not satisfied on the evidence that the 2011 incident was in some way attributable to or associated with some incident of her employment.

His Honour found that in light of the evidence that her injury was the product or manifestation of instability and degenerative changes in her left ankle resulting from the 2010 injury, lack of active post-trauma rehabilitation and biomechanical dysfunction, she had failed to prove that the injury and symptoms reported were significantly related to her employment with BHP.

His Honour further found that the arbitrator’s reasons need not canvas all factual and legal arguments or issues. The arbitrator’s reasons were legally adequate and enabled the parties to understand the result. Ms Slater’s application was dismissed because she failed to prove that it was more probable than not that she sustained an injury within the meaning under the Act. The decision was found to be correct on the evidence before the presiding arbitrator.

This decision provides a practical example that, to be compensable, an injury must be in some way attributable to or associated with some incident of the worker’s employment. The medical evidence in this case was unanimous that the worker was suffering a pre-existing disease and that her injury was the natural progression of that disease and would have occurred irrespective of the work activity (walking on a flat surface). This is in contrast to the recent decision of Massih v Electricity Networks Corporation t/as Western Power [2016] WADC 146 where there was insufficient evidence that the injury would have occurred in any event.

Slater v BHP Billiton Iron Ore Pty Ltd [2016] WADC 148


Court confirms burden of proof and test for causation in workers’ compensation

A District Court judge has clarified the test of causation in circumstances where a worker claims medical expenses for treatment of a pre-existing condition.

Mr Massih had an accepted workers’ compensation claim for injuries to his neck, lower back and left knee sustained when he fell through a floor damaged by white ants while working for Western Power on 14 April 2014.

In 2015 Mr Massih was diagnosed with osteoarthritis of the left hip and hip replacement surgery was recommended. He lodged an application seeking funding for the surgery and related expenses. The arbitrator dismissed the application on the grounds that there was insufficient evidence to prove that the hip problems were caused by the work accident.

On appeal, Mr Massih contended that:

  • the arbitrator had failed to consider whether the left hip injury occurred on 14 April 2014
  • the arbitrator incorrectly required him to prove his case on a balance of probabilities to the higher standard of satisfaction applied in Briginshaw v Briginshaw (1938) 60 CLR 336 and
  • the arbitrator should have applied the but for test in determining whether Mr Massih’s hip problems were caused by an injury received during the accident at work.

Her Honour District Court Judge Schoombee found that the arbitrator had erred in applying the standard of proof in Briginshaw v Briginshaw in the workers’ compensation jurisdiction as this test is more onerous that the ordinary ‘on the balance of probabilities test’ and specifically deals with the higher level of satisfaction required in cases which involve serious allegations of ‘moral delinquency’.

Her Honour rejected the contention that the but for test should have been applied and stated that the principles regarding the burden of proof in tort law are to be applied to workers’ compensation cases such that:

  • Mr Massih carried the legal burden of proving his incapacity was caused, in the sense of materially contributed to, by the work injury and
  • Western Power had the evidentiary burden to show that there were pre-existing conditions which would in any event have resulted in the incapacity manifesting itself at that time.

Her Honour also found that Western Power had not presented evidence that the pre-existing osteoarthritis condition would have resulted in the same symptomology in 2015 regardless of the workplace accident. Her Honour was persuaded on the balance of probabilities that the pre-existing osteoarthritis of the left hip was rendered symptomatic because of the work accident in 2014 and that Mr Massih was entitled to funding for his surgery and related expenses.

This decision is somewhat controversial because the arbitrator did not expressly apply the higher Briginshaw v Briginshaw standard and the principle that ‘he who asserts must prove’ clearly applies to WA workers compensation cases (Mitchell v Canal Rocks Beach Resort [2002] WASCA 331 / Mayne Nickless v Mayne unrepresented CCT Lib No. 960736.) It otherwise serves to highlight the importance of obtaining positive evidence that a pre-existing condition would have resulted in the symptoms or incapacity irrespective of the workplace accident, as it is not sufficient if the worker has not provided evidence that the pre-existing condition would not have done so.

Massih v Electricity Networks Corporation t/as Western Power [2016] WADC 146


Solicitor’s failure to identify correct defendant denies plaintiff’s claim

The District Court has dismissed an application to extend time to commence an action in a personal injury claim, including a labour hire scenario.

Ms Bee wished to sue the owners of a business called Albany Traffic Control, the host employer. Albany Traffic Control was known by both Ms Bee and her solicitors prior to the expiration of the relevant limitation period. The solicitors for Ms Bee’s employer had indicated to her solicitors that the owner ofr the host employer was Advance Traffic Management (WA) Pty Ltd (Advance). Ms Bee then commenced proceedings within the limitation period against her employer and Advance. After the limitation period expired, the solicitors for Advance advised Ms Bee’s solicitors that it was the wrong company. The business name ‘Albany Traffic Control’ had been sold to Advance after the accident.

Ms Bee’s solicitors then requested a copy of the contract between the employer and the host employer which identified the correct entity as ACN 116 198 460 Pty Ltd, which at the time of the accident had been trading as ‘Albany Traffic Control’.

In order to extend time under section 39(3) of the Limitation Act 2005, Her Honour considered:

  • what ‘to establish that person’s identity’ means
  • what is a reasonable inquiry in Ms Bee’s context and
  • whether the knowledge of her solicitors is imputed as being knowledge of her own.

Counsel for the defendant argued that the section did not apply if the identity of the person responsible is known and, if the details of the responsible person were not known, then a routine search should have been conducted. Counsel referred to Cressey v E Timm & Son Ltd [2005] 1 WLR 3926 where the claimant argued ‘identity was not synonymous with name’ and that if a party had made a genuine mistake as to the name, then that party could obtain leave from the court.

The issue was whether the precise name of the company was something that Ms Bee’s solicitors should have known prior to the expiration of the limitation period. The solicitors made reasonable inquiries and the error was in the name of the company. Her Honour found it could not be Ms Bee’s imputed knowledge that the company search conducted was wrong. Ms Bee would have assumed that her solicitors made reasonable inquiries in relation to the company name. Her Honour found that Advance was a genuine mistake as to the name of the relevant company. Her Honour raised the option of seeking an amendment to the name of the defendant rather than proceeding with the application; however, Ms Bee’s counsel declined and proceeded with the application.

This case highlights the importance of due diligence in ascertaining the correct entity of a potential defendant because if the limitation period has passed, an error of identity is not sufficient to allow a extension to the limitation period. However if the plaintiff has made a genuine mistake as to the name of the defendant, then it is an error in name and not an error of identity. This is an error of the type envisaged by order 21 rule 5 of the Supreme Court Rules 1971 which can be corrected by amendment.

Bee v ACN 116 198 460 Pty Ltd [2016] WADC 152


Strict termination notification requirement confirmed

The District Court has confirmed the need for employers to strictly comply with section 93O of the Workers’ Compensation and Injury Management Act 1981 (WA) (Act) in giving workers notice of their termination date.

As highlighted in our July 2016 insurance update, Ms Reale lodged an election at WorkCover to pursue common law damages and then commenced proceedings against her employer, Wesfarmers Kleenheat Gas Pty Ltd (Kleenheat). Kleenheat applied to have the proceedings dismissed, contending that the Court did not have jurisdiction to make an award of damages as WorkCover had not had the power to extend Ms Reale’s ‘termination day’.

Ms Reale had been granted an extension by WorkCover on the basis that the notice had not been provided to her within the strict 14 day ‘window’ prescribed by the Act. The Court determined the initial termination day, which involved consideration of the date on which the ‘claim for compensation by way of weekly payments’ was made on the employer.

The Court held that the claim form constituted a claim for weekly payments, despite the fact that weekly payments did not commence until more than three months after the claim was made. At the time the claim form was lodged, Ms Reale had also signed an authority permitting the payment of leave entitlements while a decision was made on her claim. This persuaded the Court that she was claiming weekly payments.

The Court accepted that section 93O had not been complied with as the notice advising Ms Reale of the termination day had been provided around three weeks before the start of the 14 day ‘window’ for providing notice. The Court therefore accepted that WorkCover had the power to extend the termination day and the Court had jurisdiction to make an award of damages.

On appeal, Kleenheat’s solicitors contended that WorkCover had miscalculated the termination day. Kleenheat contended that Ms Reale should have known or could have inferred that payments had commenced within the initial three month period. Kleenheat also contended that, as it was self insured, no actual notice was required to be given to Ms Reale due to the specific provisions of section 57B of the Act.

His Honour Judge Stevenson rejected these contentions, finding that there was no evidence that weekly payments had been made prior to a second notice being issued to Ms Reale some months after she lodged her claim or that WorkCover had been notified that weekly payments had commenced as required by section 57C. His Honour observed that workers need ‘to know with certainty and actual knowledge that liability for the claim is accepted’.

His Honour held that the statutory obligation imposed on self-insured employers to make weekly payments if liability is accepted (which is different to the obligation on insured employers to provide written notice that liability is accepted) ‘does not preclude the existence of a separate obligation under section 93M(3)(b) to notify the worker that liability is accepted’.

The decision confirms the importance of strict compliance with the 14 day ‘window’ in giving workers notice of their termination date. It is also of particular interest to self insured employers and agents. While some self insured employers are already notifying injured workers that liability is accepted for weekly payments of compensation notwithstanding the provisions of section 57B, those who are not would be best advised to do so in order to avoid any uncertainty as to the applicable termination day.

Reale v Wesfarmers Kleenheat Gas Pty Ltd [No 2] (2016) WADC 153


High Court applies objective causation test to ‘reasonable administrative action’ defence.

The High Court has considered the test for causation for a workplace psychiatric injury.

Peta Martin was a producer of a local morning radio program of Australian Broadcasting Corporation (ABC) in Renmark, South Australia. Ms Martin did not have a positive working relationship with the presenter of the program, Bruce Mellett, so applied for a number of positions with different employers and alternative positions with ABC.

Ms Martin was interviewed by a panel (which included Mr Mellett) for the position of cross media reporter with ABC. She was not successful in obtaining the position and was advised that she would be required to return to her previous position, under the supervision of Mr Mellett. Ms Martin was subsequently diagnosed with an adjustment disorder and certified totally unfit for work.

Comcare disputed liability for Ms Martin’s claim on the basis that her injury resulted from reasonable administrative action and was thereby precluded from the definition of ‘injury’ in section 5 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRCA). Ms Martin appealed this decision to the Administrative Appeals Tribunal, contending that the adjustment disorder was due to the realisation that she would return to Mr Mellett’s supervision, and unrelated to her failure to obtain the position of cross media reporter.

The Tribunal Members found that Ms Martin’s mental condition deteriorated significantly when she was notified that she had not been appointed to the position of cross media reporter. They also found that as a consequence of administrative action but was not ‘reasonable’ due to Mr Mellett’s involvement in the decision-making process.

Comcare appealed to the Federal Court. Justice Griffiths determined that the Tribunal had erred in law in forming its conclusion that the decision not to appoint Ms Martin was not reasonable. Ms Martin cross appealed the Tribunal’s conclusion that her condition was a result of that decision.  Justice Griffiths found that there was no legal error in the Tribunal’s conclusion that her condition was a result of that decision.

Ms Martin then appealed to the Full Court of the Federal Court, which upheld Ms Martin’s appeal in relation to the Tribunal’s conclusion that her disease was suffered as a result of that decision as the Tribunal had failed to apply common sense to the facts as it found them.

Comcare appealed to the High Court on the basis that the Full Court incorrectly applied the test of causation required to meet the exclusion in section 5 of the SRCA. The High Court unanimously held that the Full Court had erred in applying the test of causation, stating that the Full Court had adopted a ‘common sense’ notion of causation, which did not adequately give regard to the statutory text and purpose of the SRCA.

The High Court held that the administrative action need not be the sole cause and that the casual connection is met if, without the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employment.

The Court had regard to an amending bill, the purpose of which was to ‘ensure that the wide range of legitimate human resource management actions, when undertaken in a reasonable manner, do not give rise to eligibility for workers’ compensation’. The High Court stated that this purpose would be defeated if the operation were dependant upon the subjective psychological drivers of the employee’s reaction.

The High Court dismissed the appeal which has the effect of restoring the orders made by Justice Griffiths which included orders that the matter be remitted to the Tribunal.

The High Court has confirmed the ‘but for’ test for causation and that it is not a ‘common sense’ notion in the context of the Comcare legislation when applying the ‘reasonable administrative action’ defence in stress claims.

Comcare v Martin [2016] HCA 43


Manufacturer’s liability

Careless acts not reasonably foreseeable

The District Court has dismissed a claim against a designer and manufacturer of machinery, finding that the risk of injury from the careless and negligent acts of third parties was not reasonably foreseeable.

On 16 February 2014 Andrew Simpson and another driver were working at Golden Grove Gossan Hill open pit mine, driving loaders with a stemming bucket attached, and backfilling drilling holes. The discharge chute on the stemming bucket driven by the other driver became blocked. Mr Simpson made his way over to the other loader, under the suspended stemming bucket, and attempted to remove the obstruction by reaching his left hand up into the discharge chute. The driver of the loader inadvertently engaged the hydraulically operated sliding gate in the discharge chute while Mr Simpson’s left hand was in the chute, causing him severe amputation and laceration injuries.

Mr Simpson brought a claim against his employer, Alliance Contracting Pty Ltd (Alliance), for negligence, breach of statutory duty and damages. Alliance brought third party proceedings against the manufacturer and supplier of the stemming bucket, Friob Pty Ltd (Friob), claiming Friob’s negligence, breach of contract and breach of statutory duty caused or contributed to Mr Simpson’s injury. The parties consented to judgment against Alliance. Alliance then sought a contribution from Friob towards the settlement paid to Mr Simpson.

District Court Judge Stone determined that Alliance failed to establish that Mr Simpson’s injuries and loss were caused by any breach of contract, breach of duty or breach of statutory duty by Friob and that Friob was not a party that is, or would if sued have been, liable to Mr Simpson in respect of the settlement sum.

In reaching that decision His Honour accepted that an Australian Standard represents the consensus of professional opinion and practical experience as to sensible safety precautions and a standard of reasonable conduct: Onetech Pty Ltd v Shaw [1999] WASCA 289 [17]; Fitzpatrick v Job t/as Jobs Engineering [2007] WASCA 63 [17]. His Honour was of the opinion that warning labels on or in the stemming bucket pointing out the location of the pinch point on the discharge chute would be impractical because they would be subject to abrasion and removal during normal operation and to being covered in dirt because of the nature of the mine site environment. The most practical location of warning labels was inside the cabin of the loader.

His Honour agreed that Friob clearly had a duty of care to Mr Simpson to design and manufacture the stemming bucket in a manner that avoided reasonably foreseeable risk of injury. In particular, he noted that an operator/driver of a loader with a stemming bucket would have appreciated, as obvious and extremely dangerous, the risk posed in approaching another loader while in operation, standing under an unsecured suspended load in the bucket, and inserting his hand or arm into the discharge chute to manually clear a blockage. At the very least, if the blockage cleared he would need to avoid the sudden flow of the 4½ to 5 tonne of stemming material.

Accordingly His Honour considered that, in the circumstances, it was not reasonably foreseeable to Friob that loader/operator/driver employees of Alliance such as Mr Simpson may use a variety of methods to clear a blockage at the gate of the discharge chute and they could carelessly or deliberately insert their hand or arm into the discharge chute in an attempt to manually clear a blockage at the gate.

This case highlights that in many cases careless or negligent acts may fall outside the scope of foreseeability for a manufacturer’s duty of care relating to fitness for purpose.

Simpson v Alliance Contracting Pty Ltd [2016] WADC 158


Motor vehicle accidents

Turning driver not negligent in collision with overtaking motorcycle

The NSW Court of Appeal has allowed an appeal in a claim involving a turning vehicle colliding with an overtaking motorcycle on a country road, as the evidence failed to establish that the claimant’s injuries were caused by the turning driver’s breach of duty.

The finding of liability turned on the two drivers’ conduct over a period of less than 30 seconds prior to the crash. The turning driver, Ms Dent, checked for approaching traffic, put on her right indicator and, as she turned into a driveway, she collided with Mr Calcagno’s overtaking motorcycle.

The trial judge identified two issues. Firstly, how long was Ms Dent’s indicator activated prior to impact and, secondly, what was the speed of Mr Calcagno’s motorcycle before he braked? The conclusions of experts were held to be imprecise and the serious injuries Mr Calcagno suffered in the crash affected his recollection of the events. The trial judge found Ms Dent’s account to be consistent throughout and that the variations in her estimates were not significant inconsistencies.

At trial Ms Dent was found liable, with a 25% discount for contributory negligence. Ms Dent appealed the decision and Mr Calcagno cross appealed the finding of contributory negligence.

The question on appeal was what precautions a reasonable person in Ms Dent’s position would have taken to avoid the risk of harm. Mr Calcagno alleged that Ms Dent had breached her duty of care by failing to look behind her before executing the right turn. However, the evidence from the experts did not suggest that if she had given adequate notice to following vehicles of her intention to turn right, the exercise of reasonable care also obliged her to look in the rear vision mirror to ascertain whether vehicles were approaching or attempting to overtake.

On appeal it was found that Ms Dent was not negligent in failing to check her rear vision mirror. The evidence did not suggest that the crash would have been avoided if she had done so. The period of her signalling right gave any vehicle approaching from behind sufficient indication of her intentions; given Mr Calcagno had an uninterrupted view of her vehicle, he should have initiated a pre-emptive response.

This decision neatly illustrates the ‘reasonable person’ test in that Ms Dent complied with road rules and gave sufficient warning before executing a right turn. Even though she failed to look in her rear vision mirror, it does not mean she departed from the requisite standard of care of a driver.

Dent v Calcagno [2016] NSWCA 289


Medical malpractice

Patient loses claim that doctor’s failure to diagnose and treat melanoma caused early death

The NSW Supreme Court has dismissed a patient’s claim that a general practitioner misdiagnosed a melanoma, and has indicated that even if he did so it could not be proven that the breach caused the metastasis.

In September 2009 the patient consulted his general practitioner about a painful lesion on his foot which was diagnosed as a plantar wart and he received cryotherapy treatment until September 2010. He then consulted another general practitioner on 4 January 2011 and his lesion continued to be treated as a plantar wart until 24 February 2011, when the lesion’s pigmentation had changed. By 11 March 2011 a second lesion was observed and the pigmentation of the original lesion had grown darker in colour. A biopsy confirmed the lesion was a stage 3 melanoma with nodal involvement and metastatic spread was only detected in June 2011. The patient died on 23 May 2012.

Justice Davies rejected evidence from the patient and his wife about the lesion appearing darker in colour and growing in size during the period his general practitioner was treating it as a plantar wart. His Honour preferred the contemporaneous notes of the general practitioners that recorded that the lesion was shrinking, and their oral evidence that they were conscious of the significance of pigmentation in the lesion and would have altered the treatment had that occurred.

The expert opinions were largely in agreement that the patient likely had a wart-like lesion that coexisted with the actual melanoma found on the biopsy, but it was impossible to determine which lesion precipitated the other. Justice Davies held that the diagnosis and treatment of the lesion as a plantar wart was consistent with its appearance at that time, and was considered widely accepted practice by the expert general practitioners.

On the question of causation, Justice Davies held that the relevant harm the patient needed to prove was that the general practitioners’ breach had caused the metastasis of the melanoma leading to his early death. If the patient proved that he had a melanoma and that it had not metastasised while the general practitioners were treating his lesion as a plantar wart, the expert evidence supported the finding that an early excision of the melanoma would have allowed him to lead a normal life.

Although some of the expert oncologists considered that the melanoma was present at the time the general practitioners were treating his lesion, none of the experts could say when metastatic disease was first present i.e. when it metastasised. As such the patient failed to establish causation.

This decision reaffirms the difficulties faced by patients in establishing causation where medical practitioners fail to diagnose and treat a cancerous condition. Even if the patient had managed to lead expert or epidemiology  evidence on the likelihood of his survival had the melanoma been excised earlier, he would have suffered a lost chance for a better medical outcome which is insufficient to establish liability pursuant to Tabett v Gett. Further, he would also need to contend with the very real possibility of a recurrence of the melanoma even if it had been excised earlier.

Coote v Kelly; Northam v Kelly [2016] NSWSC 1447


Occupiers’ liability

Another collapsing chair results in award of damages

The NSW District Court has awarded damages to a customer whose chair collapsed at a Kmart store.

Ms Lewis suffered injuries on 10 January 2014 when a green plastic chair she was sitting on in the store’s photo lab section suddenly collapsed beneath her.

Prior to the accident, one of the four ‘lab chairs’ had been broken. Kmart made no effort to furnish the photo lab with extra chairs to accommodate its customers. District Court Judge Gibson found that this encouraged frustrated customers to use green plastic chairs from the nearby garden department.

The garden chairs were not intended for commercial use. Underneath each chair was a warning that it was designed for domestic use and not to be placed on a polished floor. There were no systems or signs designed to prevent customers from taking chairs from the garden department to the photo lab. Kmart staff members knew they had to regulate and control equipment used within the store both by staff and customers to avoid accidents in such a busy store, but that did not occur.

With the lab reduced to three chairs during the post-Christmas sales, the store did not close a kiosk or urgently organise a suitable replacement chair. To keep the photo lab (and its income) flowing, Kmart and its staff allowed the development of a haphazard system of customers taking chairs for sale in other departments (itself a breach of store policy) for use in circumstances where those chairs were unsuitable to the point of being dangerous.

Her Honour was satisfied that Ms Lewis had established a breach of duty of care and that Kmart had failed to provide adequate seating for its customers in the photo lab, training for its staff and regulation of equipment use.

This case illustrates the application of the NSW Civil Liability Act which is similar to the WA Civil Liability Act. This case is consistent with the law in WA and the recent case of Minister of Education v Shire of Northam [2016] WADC 42 where an occupier was found negligent when a chair collapsed underneath a patron.

Lewis v Kmart Australia Ltd [2016] NSWDC 218


Battery and intentional infliction of harm

Cultural norms considered in evaluation of tortious conduct

In determining a claim for battery and intentional infliction of harm arising from alleged unlawful sexual penetration and subsequent bullying, harassment, threats and intimidation, the District Court of WA has considered cultural norms before awarding $30,000 in damages to the plaintiff.

The plaintiff (RS), had a long history of mental health issues and marital unrest. Prior to the alleged events she socialised mostly within the Indian community and had few outside friends.

RS alleged that the defendant (HS), a colleague, unlawfully sexually penetrated her from January 2009, whereas HS claimed that it was a consensual extramarital affair. RS first reported it as an assault to her employer in May 2011; two years later she reported it as a sexual assault to police. Her reasoning for the delay was that she knew she would be blamed by the Indian community and was scared of the consequences.

The social consequences for an Indian woman who had been raped or had an extramarital affair were the subject of expert evidence. A University of Sydney Associate Professor in Asian Studies gave evidence that rape is considered a matter of great shame within the Indian Hindu community, that there is a history of distrust of police amongst Indian women, and that RS’s husband came from an area where these attitudes of hidden conservatism were prevalent.

Justice Levy accepted that the Indian community considered consensual extramarital sex worse than being raped and that to say she had been raped was the lesser of two evils. His Honour was not persuaded that unlawful sexual penetration occurred but instead that they were in a consensual sexual relationship which RS was anxious to conceal from her husband. On this basis her claims relying on any act of unlawful sexual penetration were dismissed.

His Honour then went on to consider her claim for damages arising from the intentional infliction of harm based on HS’s bullying, harassment, threats and intimidation separate from the allegations of unlawful sexual penetration. RS’s claim was that his conduct caused her to suffer mental anguish and anxiety, resulting in her withdrawing from the Indian community and attempting suicide in 2011.

Justice Levy did not accept that RS lending money to HS and obtaining a large loan for his benefit was done under duress or fear of threats made against her, but rather because she was infatuated with him and trying to please him. His Honour did however find that HS’s conduct of threatening to tell others about their sexual relationship, saying she would not be able to ‘show her face’ (significant in Indian culture) and ridiculing her amounted to bullying, harassment and intimidation.

His Honour was satisfied that HS was recklessly indifferent to the result that would flow from his conduct and that the probable consequence was that RS would suffer a psychiatric injury. While Justice Levy was not satisfied that his conduct was the only factor causing her major depressive disorder, he was satisfied that it had materially contributed to her injury, suicide attempt and need for hospitalisation.

Justice Levy awarded $25,000 in general damages and $5,000 for future care and treatment.

RS v HS [2016] WADC 157


Fast facts

Changes to the WorkCover WA Guidelines for the evaluation of permanent impairment

WorkCover has issued the fourth edition of the guidelines for permanent impairment evaluations, which applies to assessments conducted from 1 December 2016. Some key changes are:

  • Where an injury is not covered by any of the guidelines, assessors can still use an equivalent/analogous conditions based on their clinical judgment, but the equivalent/analogous condition must stay within the body part/region1.
  • Upper extremities:
    • a new guideline for assessing range of motion has been added, and if there is inconsistency in the range of motion, then it cannot be used as a valid perimeter for impairment evaluation. If that occurs the assessor should use discretion in considering what weight to give other available evidence to determine if an impairment is present. Although examples are not given, such evidence may include past range of motion assessments by physiotherapists or exercise physiologists2.
    • Impairment percentages for resection arthoplasties of acromioclavicular joints have decreased, but sternoclavicular joint has increased3.
    • Epicondylitis of the elbow is now a condition that must be present for at least 18 months and the condition has now rated as 2% upper extremity impairment or 1% whole of person impairment (WPI)4.
    • The assessment of carpel tunnel syndrome post-operatively is undertaken in the same way as assessment without operation5.
  • Lower extremities:
    • Osteoarthritis is now defined as cartilage loss, and that impairment can only be assessed by radiologically determined cartilage loss intervals in the AMA5 table 17-316.
    • A new table 3.3 has been included to assess impairment ratings for total hip and knee replacements based on good results, fair results and poor results, which are assessed based on a points scoring system for pain, range of motion and varus and valgus deformities7.
  • The spine:
    • Where there are adjacent vertebral fractures at transitional zones, the assessor is to use the WPI ratings for the cervical spine for fractures at C7/T1, and the WPI rating for the thoracic spine for fractures at T12/L18.
    • Insertion of spinal cord stimulators or similar devices do not warrant any additional WPI9.
    • The maximum WPI for pelvic fractures is increased from 12% to 20%10.
  • The nervous system:
    • For traumatic brain injuries there should be evidence of a severe impact to the head or that the injury involved a high energy impact. In addition, neuropsychological test data should be considered in the context of the overall clinical history, examination and radiological findings, and not in isolation11.
  • The skin:
    • uncomplicated scars for standard surgical procedures are not, of themselves, rate as an impairment12.
  • The digestive system:
    • With respect to post-surgical damage to the ilio-inguinal nerve, and ongoing discomfort following a repair of a hernia, permanent impairment assessments should not be made unless the symptoms have persisted for 12 months13.
    • With respect to the effects of analgesics on the digestive tract, the guidelines specifically notes that taking such medication for prolonged periods of time can cause symptoms in the upper digestive tract, but in the absence of clinical signs or other objective evidence of upper digestive tract disease, anatomic loss or alteration, the assessment should be 0% WPI14.
  • Chronic pain:
    • This whole chapter has been revised. It continues to excludes AMA5, chapter 18.
    • Complex regional pain syndrome (CRPS) must be diagnosed as per table 17.1. The diagnosis must have been present for at least one year, verified by more than one examining physician, and other possible diagnoses have been excluded, such as conditions that may mimic CRPS. Table 17.1 provides the following diagnostic criteria for CRPS:
      • Continuing pain, which is disproportionate to any causal event.
      • Must report at least one symptom in four categories, being sensory, vasomotor, sudomotor/oedema and motor/trophic.
      • Must display at least one sign at the time of the evaluation in all of the four categories listed above.
      • There is no other diagnosis that better explains the signs and symptoms.
    • If the worker satisfies the diagnostic criteria, then it is possible to combine the extremity impairment for loss of joint motion with an impairment for pain or sensory deficit using the combined values chart to obtain a final extremity impairment.

Injured workers entitled to PBS medications

Injured workers with a Medicare card will now be able to receive discounted medications under the Pharmaceutical Benefits Scheme (PBS).

Where clinically appropriate, all medications should be prescribed and charged under the PBS rate upon presentation of the injured worker’s Medicare card. Employers and insurers may pay for non-PBS (privately prescribed) medications if in the medical practitioner’s opinion the medications are clinically appropriate for their condition and there is no readily available alternative on the PBS.

As injured workers’ entitlements to medical expenses are capped by a prescribed amount, access to subsidised PBS medications will ensure their entitlements go further.


Changes to regulations for medical and allied health fees

Amendments to the Workers’ Compensation and Injury Management (Scales of Fees) Regulations 1998 (WA) (Regulations) came into effect on 1 November 2016.

The amendments apply a 1.87% increase to all medical and allied health provider fees, based on the application of WorkCover’s composite index.

Medical fees:

  • Anaesthetists $84.25 per unit.
  • Approved Medical Specialists – varies (see Schedule 1, Part 1 Regulations).
  • Consultant Psychiatrists – varies (see Schedule 1, Part 1 Regulations).
  • Dermatologists – varies (see Schedule 1, Part 1 Regulations).
  • Diagnostic Imaging – varies (see Schedule 1, Part 3 Regulations).
  • General Practitioner – varies (see Schedule 1, Part 1 Regulations).
  • Medical Procedures – varies (see Schedule 1, Part 1 Regulations).
  • Approved Medical Specialist Assessments – varies (see Schedule 6, Part 1 Regulations).
  • Physicians and Surgeons – varies (see Schedule 1, Part 1 Regulations).

Allied health provider fees:

  • Acupuncture $82.95 (includes consultation and treatment).
  • Chiropractors – varies (see Schedule 3 Regulations).
  • Clinical Psychologists $241.35 per hour.
  • Exercise-Based Programs (see Schedule 2, Part 2 Regulations).
  • Exercise Physiologists (see Schedule 5A Regulations).
  • Occupational Therapists (see Schedule 4 Regulations).
  • Osteopaths $76.35 per consultation.
  • Physiotherapists (see Schedule 2, Part 1 Regulations).
  • Speech Pathologists (see Schedule 5 Regulations).
  • Vocational Rehabilitation $180.10 per hour.

1see clause 1.29.
2see clause 2.5.
3see clause 2.14.
4see clause 2.18.
5see clause 2.9.
6see clause 3.20.
7see clause 3.28.
8see clause 4.32.
9see clause 4.41.
10see clause 4.42.
11see slause 5.9.
12see clause 14.6.
13see clauses 16.2-16.4.
14see clause 16.9.

Contact

Tony has been the Hall & Wilcox Managing Partner since 2007. He is well recognised in the legal sector and has led the firm through a period of substantial growth and success.

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'"Stand out" Rachael Arnold is recommended for public and product liability claims.' – The Legal 500 Asia Pacific 2017

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Jane has been a practising solicitor for over 20 years specialising in Real Estate law with a focus on leasing in the commercial, retail, industrial, education and government sectors in all Australian jurisdictions...

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Alison has close to 18 years’ experience in a wide-ranging employment practice, advising private sector and public sector clients on all aspects of employment, industrial relations and human resources law, and work health and safety law...

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Natalie has close to 20 years’ experience in property, planning and environment law and has been recognised as a leading Australian lawyer in this area in Doyle's Guide to the Australian Legal Profession...

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In the corporate space, Jacqui regularly advises and assists client with mergers and acquisitions, corporate structuring, corporate compliance and governance, capital raisings and managed investment schemes.

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Paul has over 20 years' experience in insurance and commercial litigation. In particular his practice focuses on personal injury and property liability claims under common law and statutory schemes as well as marine and transport industry litigation.

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Anthony is a highly regarded tax practitioner with over 20 years’ experience. He has particular expertise in taxation planning and structuring for corporate clients, including advising on capital raisings, business structuring, mergers and acquisitions, and disputes with Federal and state taxation authorities.

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Angela has significant experience in workers’ compensation, product liability and public liability matters...

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Chris Brown is a commercial lawyer with 20 plus years’ experience in corporate transactions and advice.

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Fay has acted for employers for over 17 years across a range of industries including professional services, recruitment, finance, entertainment, FMCG & general manufacturing, sport, health, aged care, community services and local councils focused always on the purpose and imperatives of the organisations she is servicing.

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Liam is an accomplished and determined litigator with an excellent eye for detail and an exceptional track record in obtaining successful outcomes for his insurer clients.

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Drew has over 20 years’ experience as an insurance and commercial litigation lawyer. His area of focus has been the defence of professional negligence claims, directors' and officers' claims and medical malpractice.

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    Fluent in Chinese

Eugene specialises in capital raising, funds management, financial services licensing and anti-money laundering law.

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Deborah has extensive experience across a broad range of commercial transactions, including mergers and acquisitions, equity capital markets and other corporate transactions, equity investments, shareholders and joint venture arrangements, management equity arrangements, ASX listed company advice, and a wide variety of commercial arrangements.

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With over 25 years of corporate, commercial and regulatory experience, Alison has specialised in advising clients in the health, aged care, disability, life sciences and community sectors...

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Anastasia’s practice focuses on personal injury litigation management and administrative law. Anastasia focuses on achieving quality outcomes for her clients in worker’s compensation matters, including statutory benefits and common law claims under the Accident Compensation Act 1985 (Vic) and the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

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Matthew Curll is one of the top ‘go-to’ people for Australian insurance law matters – both coverage and defence...

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James has experience in a broad range of commercial and intellectual property matters, including intellectual property commercialisation, agreements and licensing, trade mark registrability and infringement issues.

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Aaron has extensive employment and industrial relations law experience working with clients across a range of industries.

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Mark specialises in the construction, energy and infrastructure sectors...

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Maurice has more than 25 years’ experience delivering legal services for clients in both the private and public sector...

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Graydon acts on behalf of a number of national and overseas clients on large and complex commercial litigation matters and advises on all aspects of dispute resolution...

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Stephanie has over 15 years' experience in representing employers, insurers and self-insured corporations in the management and defence of a range of claims including intentional torts, property damage, pure economic loss and statutory classes of insurance...

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Mark’s practice encompasses both litigious and non-litigious applications of employment and industrial relations law...

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Maree acts for and advises insurers, employers and self-insurers and regularly appears in the District Court and at WorkCover WA...

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Ana’s practice focuses on the litigation of common law and statutory benefits claims brought pursuant to Victorian workers’ compensation legislation...

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Grant has more than 25 years' experience advising on catastrophic and major claims in the areas of CTP and general liability, which often involve complex liability, medical, causation and quantum issues...

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Heather advises on all regulatory, compliance, investment, tax and contractual issues, as well as acting in connection with disputes, regulator actions, product development, fund mergers and restructurings, and other transactions...

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Kylie is a senior practitioner with extensive experience in advising both government and non-government clients across all areas of employment, workplace relations, discrimination and health and safety law...

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Ben has a range of experience in intellectual property, technology, and commercial matters...

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Frank advises his clients on direct taxes, international structuring and taxation, business transactions, corporate restructuring, taxation disputes and the not-for-profit sector...

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Kathryn specialises in resolving disputes, and works collaboratively with her clients to provide the legal and strategic advice that best achieves their preferred outcome...

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John has strong technical expertise in the property funds sector, having advised on real estate portfolio and corporate acquisitions, transactional activity for wholesale and retail unlisted funds and related regulatory, governance and compliance matters.

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Mark has almost 20 years' experience acting for Australian and overseas financial institutions and borrowers in a broad range of finance transactions...

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Oliver is a corporate partner, whose practice focuses on mergers & acquisitions, corporate advisory, divestments, foreign investments and start-up capital raising.

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Zoe is a specialist insurance lawyer who manages complex and varied matters for a number of leading corporate insurers and Lloyd's of London syndicates.

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Wayne is a leading litigation and insolvency expert, with over 20 years' experience, specialising in large and complex commercial disputes in all jurisdictions, including commercial arbitrations.

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Nathan is an experienced insurance litigator with over 18 years' experience advising insurers on workers compensation, CTP and liability claims.

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Terry has over 25 years' insurance litigation experience, with his past 20 years focused predominantly on advising underwriters and self-insurers in the defence of damages claims for personal injuries, property damage and financial loss.

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Stephen is a well-respected commercial litigation lawyer with almost 30 years’ experience. His area of specialisation is in corporate and commercial dispute resolution, with a particular focus on complex debt, consumer law, contract, corporations law, equity, real property and regulatory investigations.

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Stan has been providing legal services to Local Government in NSW since 1996 and practices primarily in the areas of Environment, Local Government and Planning Law, and is a leading trusted adviser to Local Government.

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Adrian has been involved in litigation across a wide range of matters, including corporate and personal insolvency, banking and finance litigation, property and contractual disputes.

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Anne is a leading superannuation and financial services lawyer with deep knowledge and understanding of the superannuation and financial services industry...

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Gavin’s practice focuses on the specialist area of statutory recovery for worker’s compensation claims brought pursuant to the Accident Compensation Act 1985 (Vic) and Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)...

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Joe has more than 23 years' experience advising insurers on large and complex claims under CTP and statutory classes of insurance...

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Matt has vast experience and expertise in public and product liability, professional indemnity, property, including recoveries, class actions and coverage disputes, and fraud...

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Tom has extensive experience in acting for high net wealth families, private and public corporations and corporate trustees...

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Jason’s practice focuses on personal injury litigation management and administrative law.

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Liz’s practice focuses on common law and statutory benefits claims and issues under the Accident Compensation Act 1985 (Vic) and Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)...

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With over ten years' of experience, William helps clients to work through their succession planning goals and issues...

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Simon is a highly experienced litigator, having practiced for over 25 years in the CTP, workers compensation, recovery and liability jurisdictions.

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James has a broad range of both corporate and general commercial experience, particularly in the areas of equity capital markets, corporate advice, and public and private M&A...

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Andrew’s practice includes workers compensation, work injury damages/common law, s151Z recoveries, builders warranty claims, workplace law and alternative dispute resolution.

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Peter is the section leader of the firm's Tax team. Peter has joined Hall & Wilcox in 2016 after nearly 30 years with KPMG where he was a Senior Tax Partner.

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Matthew has over 18 years experience in insurance litigation and specialises in defending state statutory class and common law claims arising in the challenging Australian Capital Territory jurisdiction...

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Harry has represented a number of listed public companies, large private companies and government organisations...

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Andrew provides advice on the application of a wide range of taxation.

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Paul is an experienced energy and resources lawyer, who specialises in the development of energy projects and acquisitions, energy trading and regulation, with a particular focus on renewable energy.

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John advises principals in relation to the appropriate joint venture and development arrangements and regarding the appropriate delivery mechanism for construction projects.

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Rory has over 10 years’ experience in planning and environmental law and was recognised in 2016 as a “Rising Star” in Planning and Environment, and again in 2018 as a Recommended Town Planning & Development Lawyer in the Doyle’s Guide to the Australian Legal Profession.

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Leigh has significant experience and expertise in general insurance litigation acting for most major Australian insurers as well as a number of English insurers and underwriters.

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Michael’s practice focuses on tax disputes, capital gains tax, business sales and acquisitions and restructuring...

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Ed’s practice covers private mergers and acquisitions, family business and private equity.

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Mark specialises in corporate insolvency matters, commercial litigation and corporations law disputes, intellectual property and copyright litigation, and financial services disputes including securities enforcement...

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Katrina practises principally in the areas of commercial law and property law and development.

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Martin practices commercial law with extensive experience in contracts and commercial litigation. Martin focuses on corporate, commercial, regulatory and private clients, with particular expertise in the sports and media sectors.

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Karl advises his clients in adverse action claims at the Fair Work Commission, implementing and negotiating enterprise agreements, unfair dismissal claims, discrimination claims and contractual disputes.

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Joel is an experienced and well-rounded insurance lawyer, who is always accessible to his clients and delivers prompt, pragmatic and comprehensive analysis and advice...

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Nick has 19 years’ experience acting for Australian and international financiers and borrowers in corporate finance, acquisition finance, real estate finance and general finance across a range of sectors including financial services, property and  technology.

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Rhett is the National Insurance Practice Head and is responsible for the driving and coordinating the strategy for the firm’s national insurance practice.

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Matthew joined Hall & Wilcox on 1 July 2017, after almost 30 years at Harris Wheeler, most recently as managing partner of the firm and supervising partner of the firm’s Commercial practice.

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Kelli has extensive experience in insurance, product liability, public liability and workers’ compensation having acted for more than 30 years on behalf of insurers (both domestic and international), corporations, government bodies and instrumentalities.

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Andrew practices in personal injury litigation on behalf of self insurers, employers, and WorkSafe Victoria and its agents, managing claims brought under the Accident Compensation Act 1985 (Vic) and the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

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Daniel is an experienced insurance lawyer with close to 20 years advising clients on insurance litigation...

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Ilona has more than 15 years’ experience with her practice focusing on both statutory and common law claims across both Victorian and Tasmanian workcover legislation

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Nicholas is a highly experienced lawyer who has concentrated on insurance law, particularly claims under the NSW statutory classes of insurance, for more than 20 years...

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Joanna has extensive experience advising and representing employers, self-insurers, NSW workers' compensation managed fund scheme agents, treasury managed fund agents and the Workers' Compensation Nominal Insurer (icare).

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Jacob is a member of Hall & Wilcox’s commercial dispute resolution team, practising predominantly in general commercial litigation.

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Adrian’s financial services law practice covers superannuation, managed funds, insurance, and financial advice...

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Ahranee advises insurers and corporates in the defence of public and product liability claims, both personal injury and property damage, as well as policy advice...

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Anton practices in all areas of insurance with a focus on workers’ compensation, medical treatment and public/property liability.

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James specialises in estate and succession planning for ultra-high and high net worth clients. He also has experience in estate and trust disputes including cross-border succession issues and conflicts, tax planning and related advice to trust structures for Australian and UK non-residents and probate and estate administration.

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Emma has extensive experience in advising clients in estate planning and estate administration, trust establishment, and ongoing administration, trust estate disputes and structuring for succession of ownership and control of private and family businesses...

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Noel advises his clients on commercial disputes and related matters including banking and finance, insolvency, the Competition and Consumer Act 2010 (Cth), ASIC and other regulatory issues.

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John’s practice focuses on personal injury litigation management. He acts primarily for WorkSafe Victoria and is responsible for managing the delivery of quality common law and statutory benefits service and outcomes.

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Andrew has more than 35 years’ experience in superannuation, trusts, estate and succession planning...

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Keith is a key figure in tax advisory, having been in significant roles within the profession for over 20 years...

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Andrew has extensive experience in the provision of advice and conduct of litigation for insurers.

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Eileen's practice includes personal and business succession planning, probate and estate administration, trusts and self-managed superannuation funds and tax and related strategies related to estate and succession planning.

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In over 33 years in the profession, Steve has accumulated a wide range of skills and extensive experience in commercial law and in particular, in all aspects of real estate and property development.

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Nikki is an experienced litigator who advises CTP insurers, with her practice focused on helping clients defend CTP and major claims.

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Melinda is an experienced insurance litigator who helps insurers resolve CTP claims involving complex liability and quantum issues.

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Emma is a specialist insurance lawyer. She has over 10 years’ experience in insurance litigation with a specific focus on professional indemnity and medical liability claims.

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John has broad experience in financial services, funds management, blockchain, corporate and commercial law, with a particular emphasis on funds management related matters.

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Vince Battaglia is an experienced funds management and financial services practitioner.  He has worked in global and national law firms, as well as at ASIC.

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Melinda provides strategic and practical advice on a range of employment and industrial relations law issues...

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Bree has worked almost exclusively in Insurance and Risk since being admitted to the Supreme Court of Western Australia in 2004...

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Matthew is a general commercial lawyer with more than 18 years’ experience covering a range of areas of practice including private M&A, general commercial and corporate transactions, projects and advisory work, family succession arrangements, non-contentious employment matters, property, contracts and governanc

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Sauming is a specialist insurance lawyer with over 11 years’ civil litigation experience in personal injury and property damage.

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Rosena practices in insurance litigation: state compensation and liability claims (personal injury and property damage)...

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Michael is an experienced insurance litigator who helps insurers resolve CTP claims involving complex issues including liability issues, multi-defendant issues and detailed quantum assessments as well as relatives' claims.

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David is a commercial litigator with extensive insolvency and reconstruction experience, and expertise in property disputes.

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Nik advises on a broad range of property related transactions and disputes.  With over 17 years legal experience, he has acted for a variety of financial institutions, finance and investment companies, joint venture partners, property developers, private and public companies, government agencies and local councils.

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Iona has experience in assisting clients with both litigious and non-litigious employment and workplace relations matters.

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Lauren has extensive experience representing employers, insurers and self-insured entities in the management and defence of workers’ compensation claims.

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Jillian provides practical and commercially-minded advice to private and public sector employers on a wide range of labour and employment and privacy matters.

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With over 20 years’ experience in property law, Peter is one of the senior members of the firm's Property & Projects team...

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Kirrilee has more than 15 years' legal experience and acts on behalf of insurers in relation to catastrophic and complex personal injury claims...

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With more than 20 years of legal experience, Vicky specialises in representing clients in a wide range of commercial disputes across Australia...

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Jim has over 10 years’ experience providing taxation advice on a broad range of corporate and trust tax matters, with a particular focus on the banking and finance, government and property and construction sectors.

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Kristopher advises on all aspects of migration to Australia, with particular emphasis on employment-related migration...

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Emily specialises in property and leasing law, acting for a variety of clients in property, real estate and leasing transactions...

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Amber is an experienced insurance litigator who helps insurers resolve CTP claims involving complex liability issues, catastrophic injuries, multi-defendant issues and detailed quantum assessments as well as compensation to relative claims.

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Scott advises on a wide variety of corporate and commercial disputes and insolvency matters. His clients include those in a range of industry sectors, including insolvency practitioners, energy and resources, commercial property, financial services and intellectual property and technology.

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Carl is an experienced insurance litigator who helps insurers resolve CTP and major claims involving complex liability issues, dual insurance, detailed quantum assessments and fraud...

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Rachel has over 15 years of experience advising on tax law and specialises in stamp duties, land tax and other tax issues in all Australian states and territories.

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Katherine is a commercial litigation specialist with a focus on insolvency, contract litigation, construction disputes and the Personal Property Securities Act 2009 (PPSA).

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Elisabeth advises her clients on commercial litigation, international arbitration, corporate insolvency, claims arising from contraventions of the Corporations Act 2001 (Cth), financial product disputes, tax litigation, business crime and fraud.

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Since arriving in Australia Albert has worked on various types of commercial disputes, for a range of clients including the Greater Building Society, Newcastle Airport, Port Stephens Council and various engineering companies based in Newcastle and the Hunter Valley.

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Vanessa has worked in the area of insurance law, with a specific focus on workers compensation and personal injury insurance litigation since beginning her career as a paralegal in 1996...

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Mark has more than 16 years’ experience in advising on construction and infrastructure projects. He has acted for public and private organisations on social infrastructure projects including housing, schools, hospitals, primary care facilities and specialist disability care homes.

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Louise has provided advice in personal injuries law for over 20 years, to both plaintiffs and defendants...

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Graeme has a broad practice in commercial dispute resolution, conducting small to complex litigation in the Supreme and Federal Courts, and mediation.

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Megan specialises in corporate litigation, bankruptcy and insolvency, shareholder disputes, partnership disputes, contractual disputes, breach of confidence and restraint of trade, banking matters, and Australian Consumer Law.

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Rebecca has been working in the legal profession since 1998. Her practice has focussed on insurance litigation, predominantly workers’ compensation claims.

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Tanya is an insurance specialist and an Accredited Specialist in personal injury.  For close to 20 years, she has worked with insurers and self-insured corporations to resolve CTP and public liability claims, including major claims.

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Conrad has a broad range of commercial experience, particularly in the areas of mergers and acquisitions, restructures and business succession, insolvency, and Corporations Act 2001 (Cth) compliance.

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Bettina is a highly experienced insurance lawyer who defends claims on behalf of domestic and international insurers and corporations...

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Sean has practised in insurance litigation since 1992, acting on behalf of defendant insurers and self insured across the CTP, workers compensation and public liability regimes...

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Chris has 20 years of experience in health and medical law, delivering solutions to clients in the insurance and health sectors...

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Jonathon is a Special Counsel in the Sydney Corporate and Commercial team. He has over 15 years’ transactional and advisory experience specialising in mergers and acquisitions, private equity, joint ventures, shareholder arrangements and corporate governance...

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Lauren has over 12 years’ experience, specialising in insurance litigation and practicing in the areas of workers compensation, compulsory third party and public liability claims...

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Anna has 10 years’ experience practising in property and projects. She has particular expertise in managing large volumes of conveyancing work for developers.

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Thomas is an experienced litigation lawyer with knowledge across a diverse range of litigation practice areas...

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Sam’s practice focuses on estate and succession planning...

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Krisha has 19 years’ workers compensation and common law experience with a particular focus on section 151Z indemnity claims.

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Taleen has significant experience in insurance litigation and advice in workers’ compensation and public liability matters in Western Australia and the Northern Territory...

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Amy practices in insurance litigation and personal injury law.

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Marisa’s practice focuses on common law and statutory benefits claims brought pursuant to the Accident Compensation Act 1985 (Vic) and the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

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Catherine is an experienced insurance lawyer who focuses on public liability and property damage claims.

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Jacinta’s current practice includes direct and indirect taxes, business transactions, corporate restructuring, taxation disputes (including pre-audit, audit and litigation), the not-for-profit sector and trusts.

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James has more than 8 years of experience working across a broad range of general commercial transactions and arrangements, including acting in mergers, acquisitions and restructures and drafting general commercial agreements.

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David is an experienced employment and industrial relations lawyer. He acts for a range of local and global clients across a wide range of industries.

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Glenn is an experienced litigator practicing predominately in commercial litigation with a focus on corporate and personal insolvency...

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Lorem ipsum dolor sit amet, consectetur adipiscing elit. Morbi vel viverra mauris, quis aliquet ipsum. Cras efficitur erat et purus bibendum, et bibendum nulla aliquet. More about Candice

Barbara works with insurers on CTP and public liability insurance claims involving sensitive and complex matters, often involving multi-defendant and medical causation issues.

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Jessica’s practice concentrates on personal injury litigation management. Jessica focuses on achieving quality outcomes for her clients in worker’s compensation matters, including statutory benefits and common law claims under the Accident Compensation Act and the Workplace Injury Rehabilitation and Compensation Act...

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Ben has a broad knowledge across all disciplines of property, planning and construction and currently acts for clients in a wide range of matters in the firm’s Property & Projects practice.

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Elise's practice focuses on common law and statutory benefits claims brought pursuant to the Accident Compensation Act 1985 (Vic) and the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) and common law claims brought pursuant to the Transport Accident Act 1986 (Vic).

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Anthony assists insurers to resolve CTP claims involving complex liability and quantum issues, fraud, catastrophic injuries, nervous shock, multi-defendant matters and administrative law challenges.

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Jane-Elise is an experienced insurance lawyer whose practise focuses on general liability. Her clients include international insurers and large self-insured corporations.

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Adam is an experienced tax lawyer, and advises clients on a range of matters including tax planning and structuring, Division 7A, the small business CGT concessions, corporate restructuring, professional firm structures, trust taxation, the taxation of settlements and cryptocurrency taxation.

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Elizabeth is a commercial litigation lawyer who specialises in corporate and commercial dispute resolution, with a particular focus on contractual disputes, consumer law, corporations and equity, real property disputes and insolvency.

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Jennifer has over 10 years’ experience in the insurance industry and has worked in both private practice and in house defending claims under the Personal Injuries Proceedings Act 2002 and the Workers Compensation and Rehabilitation Act 2003.

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Natasha acts for a variety of professionals in the defence of professional negligence and other claims arising out of purely economic loss, property damage, defamation, and alleged breaches of the Australian Consumer Law.

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Felicity is an experienced energy and resources and corporate lawyer, who specialises in general corporate and commercial matters, rail, infrastructure and energy and resources...

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Catherine's expertise include compulsory third party (CTP) and public liability claims, including major claims, section 151z recovery matters and defendant insurance litigation.

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Belinda’s practice focuses on the litigation of common law claims brought pursuant to the Transport Accident Act 1986 (Vic) and common law and statutory benefits claims brought pursuant to the Accident Compensation Act 1985 (Vic) and the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

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Alexandra has experience acting on behalf of and advising both public and private sector clients in a broad range of industries including in the tertiary education, apprenticeship training and retail sectors.

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Sarah is an experienced employment and industrial relations lawyer.  Sarah acts for a range of local and global clients across a wide range of industries in both litigious and non-litigious employment and industrial relations matters.

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Diana specialises in personal injury law and insurance litigation.

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Kate has close to 10 years' experience specialising in succession law including wills, testamentary and discretionary trusts, protective trusts, powers of attorney, appointments of guardian advanced health directives and probate and letters of administration.

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Lorem ipsum dolor sit amet, consectetur adipiscing elit. Morbi vel viverra mauris, quis aliquet ipsum. Cras efficitur erat et purus bibendum, et bibendum nulla aliquet. More about Joshua

Julian is an experienced senior litigator who has acted in high profile, complex and fiercely contested commercial litigation, public inquiries and investigations on behalf of companies, individuals (including members of parliament) and Government entities.

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Sarah has over 10 years’ experience in workers’ compensation and personal injuries claims. She has worked predominately on workers’ compensation matters in Queensland and more recently in the Western Australian jurisdiction

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Terri is an experienced insurance and litigation lawyer who has defended claims on behalf of domestic and international insurers for a decade...

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Katherine’s practice is predominantly in the area of general commercial dispute resolution and litigation and includes tax litigation and tax audit, contractual disputes, leasing disputes, restraint of trade injunctions, debt recovery, and insolvency and corporations matters.

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George has particular expertise in representing and advising insurers in relation to large scale litigation including class actions, indemnity disputes and insurance fraud claims, as well as public and product liability and professional indemnity claims.

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William specialises in private M&A and general commercial transactions and provides strategic advice on acquisitions, restructures and exits...

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Sheridan specialises in insurance litigation, with particular experience in complex claims and fraud...

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Ben’s practice focuses on common law and statutory benefits claims brought pursuant to the Accident Compensation Act 1985 (Vic) and the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

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Clare is passionate, practical and results-oriented employment lawyer who takes pride in providing commercially-minded advice, exceptional communication and effective problem-solving skills to all types of employment, industrial and safety issues.

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Jennifer has significant experience in general insurance litigation. Her experience includes public and product liability, property damage and compulsory third party insurance...

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Jamie is an experienced lawyer with her practice focusing primarily on CTP claims, in particular non-meritorious claims.

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Daniella’s practice focuses on common law and statutory benefit claims in all jurisdictions, where she continuously delivers quality results.

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Rachel is a tax lawyer specialising in direct taxes and tax disputes. Rachel’s areas of experience include advising on a variety of domestic and international tax laws...

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Kate has a broad practice, having experience in public and product liability, professional indemnity, fraud and policy interpretation...

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Holly provides advice and acts on behalf of insurers in a variety of CTP claims including advising on complex quantum and liability issues and representing insurers in the Local and District Courts and the Claims Assessment and Resolution Service.

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Mark has a broad range of experience in corporate and commercial practice areas, with a particular focus on the sports and media industries.

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  • Fluent in Chinese

Joey’s practice focuses on property acquisitions and sales, property due diligence, contract negotiations, commercial leasing, and foreign investments.

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Jeanette has over 10 years’ experience working in the Asia-Pacific region. She specialises in advising borrowers and financial institutions on bilateral and syndicated financing, as well as cross-border project financing.

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Tina is experienced in defending public and product liability claims in New South Wales and Queensland on behalf of domestic and international insurers.

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William is an experienced litigator with over 11 years’ experience in both Australia and overseas and currently practices in multiple Australian jurisdictions...

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Stacey has over 6 years’ experience in workers’ compensation law. In addition to her workers’ compensation practice, Stacey has specialised expertise in common law, public liability and asbestos claims.

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David’s practice is predominantly in commercial litigation and insolvency...

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Donna has approximately 20 years’ experience in alternative dispute resolution through her previous roles in the insurance and legal industry...

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Bianca’s commercial dispute resolution and litigation practice extends to include acting for entities and individuals in contractual disputes, high quantum intellectual property disputes, breach of confidence and restraint of trade matters, shareholder oppression claims, partnership disputes, estate disputes and large equitable disputes.

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Nina has 11 years’ broad experience as a commercial lawyer with a specialty in intellectual property and information technology law, and related areas of practice including privacy, data security and competition law.

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Amber has more than 12 years of experience in the legal insurance sphere, and has covered the field, working in State and Federal Government legal practices, private practice and in-house at WorkCover in 2011.

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Hamish is a commercial dispute resolution lawyer. His experience extends to applications for urgent relief, appellate matters and defence of class actions.

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Victoria’s practice focuses on the common law and statutory benefits claims brought pursuant to the Accident Compensation Act 1985 (Vic) and Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

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With over fourteen years’ experience working in the NSW workers compensation area, Jenny is a highly skilled and proficient lawyer who defends statutory and common law workers compensation claims.

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Toniel’s practice focuses on general insurance advice and litigation. She manages complex and varied matters for a number of high profile insurers and private clients.

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Elisa's practice focuses on common law and statutory benefits claims brought pursuant to the Accident Compensation Act 1985 (Vic) and the Workplace Injury Rehabilitation and Compensation Act 2014 (Vic).

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Hannah practices in general insurance litigation with a particular focus on claims and risk...

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Rebecca's areas of expertise include the preparation of design and construction documents, and construction dispute advice and litigation...

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Jessica practices in employment and workplace relations law and provides strategic advice to clients across a range of industries.

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Pia is a Senior Associate in the Commercial Dispute Resolution team with experience across general commercial litigation, banking enforcement and insolvency...

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Markus’ practice focuses on statutory benefits claims brought pursuant to the Accident Compensation Act 1985 (Vic) and Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

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Liz's practice focuses on state compensation and liability claims. She has developed particular expertise in identifying and managing complex and technical liability and state compensation claims, considering, analysing and providing commercial advice to both insurers and self-insured employers...

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Lauren specialises in resolving disputes, and works collaboratively with her team and with clients to provide strategic advice and success for the client...

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Kathryn advises and represents clients in a wide range of matters, including general commercial litigation, banking and finance litigation involving mortgages, guarantees and loan agreements, debt recovery and enforcement and corporate insolvency advice.

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Brandon is an experienced insurance litigator specialising in workers’ compensation, medical treatment liability and public liability claims.

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Mitch is an experienced insurance and litigation lawyer who has defended claims on behalf of insurer and private clients as well as state government departments.

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Zoe acts predominately for corporate clients and company directors in cases involving contractual disputes, fraud, corporations and equity matters, competition and consumer law...

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Bridget is an experienced insurance and litigation lawyer who has acted for leading Australian and international insurers and underwriters...

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Shane has a broad commercial and regulatory litigation practice, encompassing investment fund and trustee disputes, banking and company law, financial services, civil and commercial fraud, aviation, construction and infrastructure disputes.

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Belinda is an insurance lawyer with decades of experience over a range of jurisdictions. Belinda is an Accredited Specialist in Personal Injury Law...

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Ebonie has worked in the area of insurance law since 2011. She has a specific interest in representing employers in workers compensation claims, with her practice encompassing both physical injury and psychological injury claims in both litigated and non-litigated advice matters.

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Melissa is an experienced insurance lawyer who focuses on advising major national insurers on CTP and public liability claims ranging from homeowners to small businesses.

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Dr Wolfgang Babeck has more than 20 years’ experience as a corporate and commercial lawyer and is admitted in New South Wales, England & Wales and as Rechtsanwalt in Germany...

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Sumith Perera

Chief Operating Officer

Sumith is the Chief Operating Officer and the national Head of Corporate Services at Hall & Wilcox. He has over 20 years' experience in leading and managing teams at professional services firms.

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Peter is the Client Solutions Director at Hall & Wilcox where he drives their Smarter Law program and fosters innovation at the firm...

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Dean is the Head of Hall & Wilcox’s Finance team. He has over 15 years’ experience in finance within professional services firms.

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Katie is the Director of People & Culture for Hall & Wilcox. She has over 20 years’ experience in the legal industry.

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Melanie is the national head of Hall & Wilcox’s Business Development, Marketing & Communications team...

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Mike manages the Legal Excellence & Risk team at Hall & Wilcox and is responsible for the firm’s precedents, risk management and general counsel/company secretarial functions.

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Pious is the IT manager and head of IT nationally at Hall & Wilcox. He has over 18 years’ experience as a senior IT executive with a proven track record in legal and government technology management sectors.

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Melinda is the national marketing and communications manager at Hall & Wilcox. She has more than 20 years’ experience as a journalist, content creator and marketing communications specialist at professional services firms.

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Lorem ipsum dolor sit amet, consectetur adipiscing elit. Morbi vel viverra mauris, quis aliquet ipsum. Cras efficitur erat et purus bibendum, et bibendum nulla aliquet. More about Miranda
Lorem ipsum dolor sit amet, consectetur adipiscing elit. Morbi vel viverra mauris, quis aliquet ipsum. Cras efficitur erat et purus bibendum, et bibendum nulla aliquet. More about Lauren

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Corporate and Financial Services Reform Update March 2007

The first tranche of draft regulations was released for public consultation on 26 March 2007 as part of the Corporations and Financial Services Regulation Review process. Some key issues dealt with in the first round of draft regulations are set out below: Keeping Financial Services Guides and Product Disclosure Statements up to date Where there […]

Thinking | Mon 05 2007

Compensation Arrangements for Financial Services Providers

Yesterday the Parliamentary Secretary to the Treasurer (Chris Pearce), announced that regulations to complement section 912B of the Corporations Act 2001 (the Act) are expected to be made by 1 July 2007. The Act requires financial services licensees that provide financial services to retail clients to have in place appropriate compensation arrangements. The arrangements must either be approved […]