Bowen Buchbinder Vilensky

Archive for January, 2014

How Routine Form Filling can Become a Legal Issue
Saturday, January 25th, 2014

By Leslie Buchbinder, Director at Bowen Buchbinder Vilensky Lawyers

25 January 2014

Many companies delegate the filling in of ‘routine’ paperwork to junior staff.  This includes firms such as accounting practices, financial planners and others who may have comprehensive quality control policies, targeting complex and financially significant matters. Ironically, the more mundane matters can sometimes cause the greatest heartache.

One matter which came to the attention of an Australian court concerned a situation where accountants miscalculated the amount of depreciation allowable as a deduction and the mistake was then carried through in succeeding years.  The error resulted in an overstatement of the tax payable and no refund could be obtained for taxes that were paid more than 3 years ago because they were statute barred.   The client successfully sued the accountants, who were  found not only to have been negligent but also to be in breach of their contract. A significant amount of damages were awarded against them.

In a different case, a client provided a partially completed handwritten insurance proposal form which needed to be submitted to the insurance company.   It was later entered by his financial planner via an online platform.  In undertaking this task and providing answers in all the required fields, the employee of the financial planner who filled in the form inadvertently failed to notice  that the client had in the previous 2 years been declined by a number of other insurers.   A subsequent investigation revealed that the insurance policy that was issued to the client by the insurer was in fact based on material non-disclosure.  Instead of being paid out by the insurer, the client found himself being pursued by it for money they had already paid to the client on the grounds of material non-disclosure and fraud.   His response, in turn, was to take steps to recover the losses suffered from his advisers for negligence, breach of contract and potentially misleading and deceptive conduct,  because of the way they dealt with his proposal form.

While most professional service companies are aware of their duty of care obligations to avoid claims of Professional Negligence, it’s also helpful to bear in mind potential exposure to breach of contract. In particular, remember that your exposure to legal or disciplinary action does not always arise from the most complex or financially sophisticated aspects of your work.  Proper quality control processes are critical to ensure that routine form filling does not expose one to legal liabilities.

Click here for the full article in the BBV Media page.

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Beginning of the End for the Reverse Burden of Proof?
Monday, January 20th, 2014

By Leslie Buchbinder, Director at Bowen Buchbinder Vilensky Lawyers, and Darryl Koh, Solicitor at Bowen Buchbinder Vilensky Lawyers

20 January 2014

In January 2014, Australia’s new Attorney General, George Brandis, announced that the Australian Law Reform Commission (“ALRC”) will review laws that threaten “traditional rights, freedoms and privileges”.  In workplaces especially, the reverse onus of proof is a huge burden for employers.  These laws include the Commonwealth Fair Work Act’s “general protection” provisions, which prevent employees from being dismissed or subjected to detrimental conduct on the basis of certain rights, entitlements or attributes. For example, an employer can’t take adverse action against an employee because of their industrial activities or an attribute such as their race, sex or age. Similarly, if an employee fails to perform to expectations or needs to be disciplined or made redundant, the burden of proof is on the employer to prove that this action was not in some way discriminatory. For an employer to be entangled in such proceedings and to shoulder the heavy burden of proof will necessarily require the employer to spend time, money and other resources which can otherwise be channeled towards more productive endeavours.

Several States and Territories such as Queensland, NSW, Tasmania, South Australia, the ACT and the Northern Territory have adopted the Commonwealth-initiated model Work Health & Safety Act (“WH&S Act”). However, the WH&S Acts still retain features of the reverse burden of proof in prosecutions particularly in the area of discrimination. In WA, the WH&S Bill has been introduced in the WA Parliament and is currently under debate. There are 4 key areas in which WA has highlighted that it does not agree. One of these key areas is the reverse burden of proof in prosecutions for offences involving discriminatory-type offences.  WA considers that its inclusion is in part contrary to the purpose of harmonising the Commonwealth, State and Territorial WH&S Acts.

It will be interesting to see what the ALRC proposes when it releases its report and how it relates to WA’s concerns regarding the reversal of the burden of proof issue.

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Wednesday, January 1st, 2014

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