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Speaker 1: Let's talk the law and from Johnston Withers lawyers here

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Speaker 1: in the studio, Tim Downey and Caitlyn Warkington both have

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Speaker 1: come back for another round. Good morning to here both,

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Speaker 1: Good morning, good to see you both. And here raining outside.

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Speaker 1: Do you walk here by the way? Do you drive?

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Speaker 1: What do you do?

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Speaker 2: No?

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Speaker 3: We catch our chopper do you yeah.

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Speaker 1: I'm on the route? Yeah, pretty well.

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Speaker 3: Lawyers on a daylight today we tend to drive.

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Speaker 1: That's good, all right, let's talk about Well, there's so

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Speaker 1: much to have a chat about, and of course if

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Speaker 1: anyone has any legal issues that you can help with

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Speaker 1: eight double two to three double o double oh. And

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Speaker 1: Caitlin particularly on wills and Tim generally on other matters

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Speaker 1: as well. The state budget that was tabled last week.

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Speaker 1: Is there much in it for the law?

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Speaker 3: Do you?

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Speaker 1: How do you see it?

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Speaker 3: No, there's really nothing in it for the law probably

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Speaker 3: would be the best way to describe it. And this

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Speaker 3: is an ongoing issue with the judges and with the

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Speaker 3: law society because the the state of our courts is

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Speaker 3: not I think it's fair to say fantastic, and there's

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Speaker 3: lots and lots of issues with facilities and for years

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Speaker 3: and years and years this has been Promises have been

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Speaker 3: made that the courts will be upgraded, it never seems

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Speaker 3: to be a priority at the end of the day.

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Speaker 3: So effectively there's you know, and at least there's no

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Speaker 3: mucking around. There's literally no funding for court facilities or

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Speaker 3: no additional funding. So that's a shame. And you know,

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Speaker 3: I think it's a I think it's something of a

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Speaker 3: justice issue in that it's a thing that just keeps

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Speaker 3: slipping down and down the radar. So we have really

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Speaker 3: pretty clogged up courts. If I wanted to get a

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Speaker 3: matter listed for trial, let's say that was a civil

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Speaker 3: matter someone injured badly in a motor vehicle claim, and

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Speaker 3: you know, let's say it would run for a four

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Speaker 3: or five days as a trial, That'll probably take me

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Speaker 3: a year to list. Yeah, and you'd be waiting a

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Speaker 3: year to get the judgment at least, and that's after

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Speaker 3: getting it to that stage. So you know, really, for

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Speaker 3: someone that's in a car accident today, they're probably not

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Speaker 3: going to get a judgment out of our court realistically

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Speaker 3: for three to four years. So you know, it's no

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Speaker 3: wonder most people said all their claim because to be honest,

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Speaker 3: not many people want to go through that or spend

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Speaker 3: that amount of time. Now that's not to say that

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Speaker 3: spending a lot of money might necessarily solve that problem,

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Speaker 3: but that problems created because the court system is so

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Speaker 3: clogged up and there's so much crime, you know, matters

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Speaker 3: that just take up lots of resources. So it is

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Speaker 3: it is a sort of an interesting area in that

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Speaker 3: I don't you know, I don't. I don't really see

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Speaker 3: it ever being a priority. Interesting though. There has been

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Speaker 3: funding of four million, four and a half million to

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Speaker 3: enable an additional deputy coroner, and that is a good thing.

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Speaker 3: We spoke about the Coroner's court previously, and there is

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Speaker 3: there is a significant backlog. So again, if a loved

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Speaker 3: one dies in circumstances that would give rise to an inquest,

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Speaker 3: you're looking for probably three years before that inquest happens,

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Speaker 3: so that's a long time to wait. Now, this sort

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Speaker 3: of funding with an additional coroner, obviously you would think

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Speaker 3: that that backlog would be worked through faster. And I

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Speaker 3: think that's a really good thing as well. So, yeah,

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Speaker 3: that's interesting. Lots of money for prisons though, two hundred

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Speaker 3: and twenty seven million. They're new beds at Yatler and

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Speaker 3: some new beds in the women's prison as well. So

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Speaker 3: I mean, you know, I think everyone understands that we

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Speaker 3: need those facilities, and I don't think anyone would necessarily

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Speaker 3: complain about seeing more prison beds because.

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Speaker 1: So now we'll just be wrecking and stacking, not packing exactly.

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Speaker 3: It's the well, the racking bit might might take longer,

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Speaker 3: but the packing and stacking is looking good. Okay, but

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Speaker 3: you know, there's no money for you know, in terms

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Speaker 3: of rehab programs, and so our recidivism rate is pretty

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Speaker 3: high at thirty seven.

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Speaker 1: Percent repeat offenders.

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Speaker 3: Yeah, so everyone you know, of what every hundred people

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Speaker 3: coming out, thirty plus are going to go back in. Yeah.

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Speaker 1: So, well that that just shows the system isn't working

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Speaker 1: because prison is meant to re educate, it as a

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Speaker 1: place of rehabilitation, and it's not happening.

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Speaker 3: Yeah, And look to be to be fair, we've got

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Speaker 3: a good rate compared to some other states, yeah, which

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Speaker 3: which is one thing. But even so, you'd wonder of,

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Speaker 3: you know, if you've directed some of that you know,

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Speaker 3: two hundred and twenty million into some programs, you know,

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Speaker 3: and maybe it's Pollyanna thinking, but you might not need

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Speaker 3: the beds. So yeah, it's it's it is interesting when

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Speaker 3: you take that sort of broad view of budgets and

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Speaker 3: where this money goes and the priorities that are there.

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Speaker 3: So yeah, so that's that's this year's budget, and we'll

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Speaker 3: see whether the priorities change up a bit next year.

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Speaker 1: There was a time you were going to get all

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Speaker 1: the court system, was going to get a brand new

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Speaker 1: building in an empty block behind the Supreme Court. And

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Speaker 1: the irony is now horses are going to be put there.

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Speaker 3: Beautiful horse stable.

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Speaker 1: I hope he's on our own horse exactly. So that's happening,

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Speaker 1: but not the building. The Court's go on facade to

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Speaker 1: the District Court. That's Sir Samuel Waite building. Is that

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Speaker 1: the one with the old Child's More department store.

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Speaker 3: Yeah, so if you're pass there now, that facade has

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Speaker 3: been I think, you know, half built for a long while,

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Speaker 3: and that was the only other announcements that's been pushed

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Speaker 3: back twelve that's true, but I don't think that's going

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Speaker 3: to change the wills of justice one way or the other.

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Speaker 3: It'll just make the whole place look a bit nicer

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Speaker 3: out the front.

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Speaker 1: Let me throw a question out to both of you,

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Speaker 1: whoever wants to take it on, and it's to do

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Speaker 1: with the political donation band that's been announced this morning. Now,

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Speaker 1: I know you wouldn't have had much chance to digest

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Speaker 1: any more than the headline because the premier has just

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Speaker 1: announced this today. What do you think of it? Is

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Speaker 1: it something that can work? Is it likely to be

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Speaker 1: challenged just on the top of the head type stuff?

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Speaker 3: Yeah, there's high court decisions around third party funding so

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Speaker 3: of which I just don't have any insight in, so

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Speaker 3: I can't speak about it with any authority. Yeah, I mean,

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Speaker 3: I think everyone's initial reaction is how does that really

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Speaker 3: work in the political environment where you're going to have unions,

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Speaker 3: for example, putting out ads that would be very helpful

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Speaker 3: for one party and not another party, and that's their

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Speaker 3: decision to make, and that it's their resources they're spending.

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Speaker 3: So you know, look, I mean, I think in principle,

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Speaker 3: everyone understands the principle. I think what will be interesting

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Speaker 3: is what comes out of it. It'll be a draft bill,

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Speaker 3: like all draft bills, will be circulated, stakeholders will be

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Speaker 3: able to make commentary around it, and submissions. SA business

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Speaker 3: might have a lot to say about it, I would

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Speaker 3: have thought so, And of course, what what's the liberals

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Speaker 3: reaction politically? You know, maybe they're wrong footed and you know,

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Speaker 3: I don't know, but yeah, legally I'm going to be

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Speaker 3: very interested to see how it's going to work.

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Speaker 1: All right, defamation, Well, let's talk about that defamation law.

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Speaker 1: What's it mean? Who's taking that on, Caitlin?

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Speaker 3: That's me.

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Speaker 4: So I think defamation is a bit of a buzzword

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Speaker 4: in Australia over recent years we've had quite a few

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Speaker 4: high profile decision and so I guess it is a

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Speaker 4: bit of a question where we think about, well, how

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Speaker 4: is that going to affect the average Australian Aussie at

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Speaker 4: the moment. So defamation, I think is a bit like

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Speaker 4: Wills and Estates, where it does affect everyone in the

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Speaker 4: sense that we all have freedom of speech and we

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Speaker 4: also all have a right to protect our reputation. So

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Speaker 4: whether you're defending a claim or you think someone's defamed you,

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Speaker 4: it's something that I think does affect everyone in ordinary life.

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Speaker 4: So if we break down the elements, defamation comes from

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Speaker 4: the Defamation Act that's state based by state legislation, but

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Speaker 4: uniformed across Australia. So to sue and South Australia here

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Speaker 4: you have to either be defamed or have suffered loss here.

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Speaker 4: Otherwise it is an action that should be brought in

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Speaker 4: a different state. But to be able to sue, we've

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Speaker 4: got to work out what do you satisfy the cause

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Speaker 4: of action. So to break that down, we've got to

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Speaker 4: have a communication which can be either orally or in

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Speaker 4: writing where it's communicated to a third party. And when

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Speaker 4: those third parties here that they're going to form a

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Speaker 4: reduced opinion of you as a consequence. So needs to

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Speaker 4: be a communication orally or writing to third parties and

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Speaker 4: it needs to cause serious harm to your reputation. Now,

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Speaker 4: this serious harm element was only introduced in July twenty

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Speaker 4: twenty and it was introduced by Parliament uniformed across Australia

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Speaker 4: to decide to try and limit the types of claims

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Speaker 4: that are currently before the court. To I think that

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Speaker 4: the courts were getting overwhelmed with the social media and

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Speaker 4: the online defamatory claims and so the intention of serious

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Speaker 4: harm was to really limit those type of claims. So

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Speaker 4: we see these type of cases really regularly at Johnston

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Speaker 4: with as we do a lot of this work, and

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Speaker 4: we help people largely with online publications. I think that's

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Speaker 4: the bulk of the work that we do for individuals,

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Speaker 4: but also businesses because this can significantly affect their livelihoods

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Speaker 4: if the wrong comments and remarks get made, and we

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Speaker 4: also see it get made you know in small communities

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Speaker 4: or country towns, you know, oral communications as well. So

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Speaker 4: it is probably worth me mentioning that not all businesses

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Speaker 4: can sue for defamation. So defamation is something that to

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Speaker 4: sue in businesses you have to have less than ten

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Speaker 4: employees which includes part time equivalents or contractors, and or

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Speaker 4: you must be non for profit. And to be able

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Speaker 4: to sue for business you have to suffer serious financial loss.

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Speaker 1: How do you show that?

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Speaker 4: Yeah, so businesses are obviously a little bit easier because

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Speaker 4: that's based on the books. The big question comes out

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Speaker 4: is how do you suffer serious reputational harm for individual

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Speaker 4: and how do you prove that? Because there's not really

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Speaker 4: a tick box, there's no yes or no, and there's

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Speaker 4: a whole factors that the court takes into account.

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Speaker 1: So losing a job, for instance, yes, that would.

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Speaker 4: Be serious harm. So the things that the court will

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Speaker 4: take into account when considering is whether or not that

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Speaker 4: harm has been so such as losing a job or

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Speaker 4: will likely be suffered in the future, the fact surrounding

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Speaker 4: how that publication has made, how many people saw or

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Speaker 4: read it, what words were actually used, whether or not

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Speaker 4: there has been financial loss. And the other key thing

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Speaker 4: is the court will look at what the imputations were.

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Speaker 4: Now that's a little bit of a strange word for defamation,

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Speaker 4: but if you think of imputations, they're kind of like

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Speaker 4: what is the sting of the message that was said?

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Speaker 4: So you know, if someone called me a thief, people

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Speaker 4: wouldn't just assume that, you know, I've stolen something, but

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Speaker 4: there would be annotations or underlying messages in their head

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Speaker 4: that I'm a criminal, or I'm someone who's not trustworthy,

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Speaker 4: or perhaps I shouldn't be a solicitor, all of those

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Speaker 4: things that we break down automatically. So the court will

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Speaker 4: look at what those inferences are in the circumstances. And

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Speaker 4: it's not intended on being, you know, an academic debate

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Speaker 4: of how those words can be interpreted, But how would

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Speaker 4: the ordinary average Australian of normal intelligence, what would they

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Speaker 4: infer from the words? So in the recent Bruce Lehman trial.

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Speaker 4: This was a big thing that got discussed with the

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Speaker 4: allegation of rape, where he had to break down what

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Speaker 4: he thought not was the criminal standard or the elements

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Speaker 4: of that, but what he actually understood the community values

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Speaker 4: to be and how the community attaches that word and

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Speaker 4: what they think the actual act is. So that was

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Speaker 4: a really interesting point of law that came out of

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Speaker 4: that judgment, is how he broke down that the imputations

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Speaker 4: are not a definition coming from a dictionary or a

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Speaker 4: legal argument, but they are what the ordinary people of

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Speaker 4: the public understand.

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Speaker 1: Those words to me, isn't it interesting Bruce Lehman didn't

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Speaker 1: see it through that prism?

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Speaker 4: Yes, Well, there's a famous saying right at the end

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Speaker 4: of the judgment that I'm sure everyone heard, but you

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Speaker 4: got out of the line cage and you went back

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Speaker 4: in to get your hats.

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Speaker 1: So exactly, all right. That's that's very interesting. And we've

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Speaker 1: had these high profile cases and at least both I

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Speaker 1: think now are on the repellent. They've been Robert Smith

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Speaker 1: than Bruce Lemon they are.

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Speaker 4: So we're going to be hearing more and more of

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Speaker 4: these defamation cases. These are large, high profile ones that

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Speaker 4: are currently before the courts. So I think that's why

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Speaker 4: it's getting a lot of attention and a bit of

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Speaker 4: a buzzword at the moment.

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Speaker 1: YEA, Indeed, Hughey's caught in and this is in your

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Speaker 1: wheel house, Caitlin. Regarding power of attorney, Morning Huey can marry.

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Speaker 2: A mattew any guests also executive for that matter. But listen,

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Speaker 2: I think correct me if I'm wrong. But about three

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Speaker 2: or four years ago, the state government was considering the

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Speaker 2: factor of a power of attorney or executive had to

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Speaker 2: be medically fit and he goes through two practitioners or

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Speaker 2: gps as to speak to surpass that the person is

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Speaker 2: fit and proper to handle either power attorney executor. I

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Speaker 2: know of a number of cases over the past where

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Speaker 2: we've been very disappointing outcomes with the wills and testaments

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Speaker 2: and the handling of the properties and the decease, etc.

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Speaker 2: How's it has that come about yet or is that

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Speaker 2: still a consideration? Have you heard of it? No?

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Speaker 4: I haven't, hue So, I mean I can comment to

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Speaker 4: say that obviously for an executor or an attorney to

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Speaker 4: take those positions to act, they do have to have

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Speaker 4: a mental capacity, so they can't be someone who's lost capacity,

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Speaker 4: which was one of the things that we spoke about

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Speaker 4: last week. But there isn't any testing that they need

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Speaker 4: to go through, whether that be medical, ethically to make

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Speaker 4: sure that the right people to do the jobs. And

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Speaker 4: there's a lot of cases that we get involved in

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Speaker 4: that you're probably referring to, where the beneficiaries of the

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Speaker 4: state or concerned family members bring a complaint to say, well,

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Speaker 4: those people aren't actually doing their jobs properly, they're not

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Speaker 4: looking after the state, or they're not looking after the

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Speaker 4: person who's lost capacity's best interest. And in those circumstances

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Speaker 4: they can be removed. But they're certainly not a legislative

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Speaker 4: requirement at the moment for people appointed to do any

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Speaker 4: medical testing or anything beforehand.

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Speaker 1: All right, thank you, Huey. Johnston Withers Lawyers are here

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Speaker 1: of course, and Caitlin and Tim. When experience matters, trust

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Speaker 1: Johnston Withers Lawyers over seventy five years legal experience, Johnston

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Speaker 1: Withers dot com dot au. Tim Singapore Airlines Flight three

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Speaker 1: two one. The huge amount of turbulence that this plane

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Speaker 1: suffered and as a result, people then suffered injuries and

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Speaker 1: one of them incredibly serious. Adelaide woman left potentially paralyzed

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Speaker 1: as a result of that. One man has died of

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Speaker 1: a heart attack of seventy three year old on board

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Speaker 1: when this happened two weeks ago, two and a half. Now,

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Speaker 1: it certainly a terrible situation. But legally is there any

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Speaker 1: stand for people on board?

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Speaker 3: Oh? Absolutely there is, yeah, SORR. In Australia we have

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Speaker 3: the Carriers Act, and the Carriers Act basically adopts the

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Speaker 3: Montreal Convention in relayd to aviation, so there's liability the

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Speaker 3: moment you enter the aircraft effectively. One thing people should

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Speaker 3: be really aware of when it comes to any claim

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Speaker 3: that arises out of aviation is that there's only a

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Speaker 3: two year limitation period. So in Australia or South Australia generally,

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Speaker 3: and really pretty much Australia wide, you have three years

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Speaker 3: to sue, but if it's an aviation claim then you

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Speaker 3: only have two, so you have to get around to

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Speaker 3: it quite quickly, and there's sort of like a lot

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Speaker 3: of law around is it strict liability and is it

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Speaker 3: or do you have to prove negligence? And then is

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Speaker 3: the owners sort of reverse so they've got to prove

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Speaker 3: they did nothing wrong, and that will vary according to

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Speaker 3: the amount claimed essentially. So yeah, so there's a basic

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Speaker 3: level where you'll get to set some of money. Let's

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Speaker 3: say if what happened in Singapore air Lines happened, and

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Speaker 3: that's why they are offering that up already. So they're saying, well,

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Speaker 3: they know they would clearly they're going to have to

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Speaker 3: pay those some so they're just saying, here's a payment,

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Speaker 3: and then you could go on and sue.

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Speaker 1: Us, so that payment doesn't stop there. You're not you're

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Speaker 1: not signing away your rights to the future.

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Speaker 3: Not no, not that I'd understand it, because they would

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Speaker 3: be well, best be careful with that. But they I'm

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Speaker 3: assuming they'd be put to them as what's called an

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Speaker 3: interim payment. Yeah, they wouldn't. They wouldn't be put full

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Speaker 3: and final. But of course absolutely should never sign anything

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Speaker 3: like that without getting legal advice because it may be

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Speaker 3: you know, an attempt to settle full and final. So

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Speaker 3: I had one of these years ago, which was an

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Speaker 3: airline that dropped about ten thousand feet. It was flying

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Speaker 3: to Perth from I think it was flying from Hong

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Speaker 3: Kong and it had to land in the bush. So

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Speaker 3: it landed in Kartha and actually, you know what, it

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Speaker 3: would have been probably fifteen years ago now when you

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Speaker 3: think about it was a long time ago, but it

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Speaker 3: was a major story at the time and similar similar

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Speaker 3: to this, a lot of people were hurt and we

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Speaker 3: acted for a number of those people. In the end,

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Speaker 3: an American lawyer took over Floyd Wisner, and he's an

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Speaker 3: expert in this area. Because you end up with an

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Speaker 3: action against everything to do with that aircraft. Okay, so yeah,

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Speaker 3: so really involved case you're sewing Boeing, you're sewing. In

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Speaker 3: that case, you're sewing the software, you're sewing, the leases,

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Speaker 3: you're sewing that. You know, it's not just a simple case.

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Speaker 1: Would anything hinge on whether they knew the turbulence was there?

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Speaker 3: That will be what all of the expert evidence. If

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Speaker 3: that case proceeds on the negligence that is what, and

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Speaker 3: to establish negligence, all of the expert opinion will turn

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Speaker 3: on A did they do enough and b or have

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Speaker 3: they done more? So when you know, like you and

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Speaker 3: I as layman, read about it on the surface level,

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Speaker 3: you do sort of think, well, you know, we understand

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Speaker 3: there's more turbulence because there was monsoons that apparently that

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Speaker 3: seems to make sense. Yeah, and so wouldn't you think

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Speaker 3: they'd know there were monsoons Therefore.

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Speaker 1: Wouldn't you think go around?

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Speaker 3: Well, you'd go around, but certainly you would have a

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Speaker 3: really strict policy around seat belts for example. Yes, now

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Speaker 3: you know so, Yeah, you just kind of think it

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Speaker 3: just it does strike you as a bit strange.

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Speaker 1: Does that risk then on the pilots or people on

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Speaker 1: the ground advising pilots, or the airlines and traffic control.

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Speaker 3: And this is why you end up with about twenty

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Speaker 3: what we call defendants in a case like this, because

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Speaker 3: you're generally you're going to go after the software company,

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Speaker 3: you know, the radar company, the pilots, which is the airline,

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Speaker 3: the aircraft, you know, the whole bit, because it could

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Speaker 3: be a combination of all of those things, and you're

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Speaker 3: trying to get to the very bottom of what that

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Speaker 3: might be. But look, really involved case, and most probably

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Speaker 3: the main part of that case would be run in

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Speaker 3: the US, I would have thought, because that's where the

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Speaker 3: big players are going to be if it goes down

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Speaker 3: that path. Yeah, look, I really wish them well because

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Speaker 3: they're going to need considerable damages that in those circumstances.

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Speaker 1: Let's go to Damien, who is on the line with

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Speaker 1: a wills related question.

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Speaker 5: Damien, Hello there, Look, I have a question where it's

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Speaker 5: identified that you are an executor of an estate and

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Speaker 5: then time lapses and then the person that you were

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Speaker 5: intending to be the executive that passes away, and obviously

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Speaker 5: you need to take action, but you actually want to

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Speaker 5: rescind that responsibility. What's the mechanism that would occur in

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Speaker 5: that in that situation, do you need to front to

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Speaker 5: the to the Supreme Court to do that? What? What? What?

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Speaker 5: What occurs?

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Speaker 4: You can change your executor at any time, Damien, and

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Speaker 4: you do that by updating your will and signing a

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Speaker 4: new valid will.

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Speaker 5: So it's not about my own it's about where you

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Speaker 5: me as an individual, have been cited as an executor.

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Speaker 5: But when the time comes, it all seems too complicated

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Speaker 5: and you know, I don't want to take on that responsibility.

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Speaker 5: What's the mechanism to rescind that responsibility?

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Speaker 4: Yeah, that's that's a good question, because it is a

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Speaker 4: really big job being an executor. There's lots of responsibilities

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Speaker 4: and it is a bit of a thankless job. So

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Speaker 4: you're under no your legal obligation to be anyone's executor.

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Speaker 4: So you can decide before you take any steps to

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Speaker 4: administer that a state that you don't want to do it,

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Speaker 4: And it's just as simple as signing what we call

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Speaker 4: a renunciation form. It's a form that you get from

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Speaker 4: the Probate Registry and you signed to confirm that you

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Speaker 4: don't want to do the role. You're then out and

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Speaker 4: then whoever's the name backup executor, if there is one,

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Speaker 4: it would then be their choice to decide whether they

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Speaker 4: do act or they don't. And if there is no

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Speaker 4: named executors in the will, then it would be for

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Speaker 4: the beneficiaries to apply for what we call letters of

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Speaker 4: administration with the will anex So there's those steps. It

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Speaker 4: is important to note that if someone starts acting as

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Speaker 4: an executor and then decides part way through to change

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Speaker 4: their mind or there's a change of circumstances, they don't

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Speaker 4: get the luxury of changing their mind at that point

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Speaker 4: without first applying to the Supreme Court and being removed

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Speaker 4: as an executor. So for all executives out there, it's

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Speaker 4: something that you should really consider before you take on

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Speaker 4: the role as to whether or not you want to

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Speaker 4: do it, and if you are willing to do it,

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Speaker 4: you've got to see the matter through or you've got

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Speaker 4: to apply to the Supreme Court to be removed.

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Speaker 5: Sure, we thank you very much for that. That's really valuable.

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Speaker 1: Thank you, Damien, thank you for the call. Well, thank

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Speaker 1: you both for coming in. Lots of interesting media topics there, pleasure.

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Speaker 1: Thanks for good on you and if people want you,

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Speaker 1: of course. Johnston Withers Lawyers eight two, three, one eleven

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Speaker 1: ten is the number. Tell you all about that in

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Speaker 1: a secon My guest Tim Downeye and Caitlin Walkington our

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Speaker 1: legal segment every Thursday morning, Johnston Withers Lawyers,