Neil, Laura --- "President's page: No falling through the cracks" [2018] PrecedentAULA 15; (2018) 145 Precedent 3

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NO FALLING THROUGH THE CRACKS

By Laura Neil

This edition of Precedent focuses on legal capacity. In our day-to-day practice, this issue frequently arises. Questions of capacity pertain to children, those with mental health issues or a mental disability. Incapacity may be permanent or temporary, and can be total or arise only with respect to certain discrete matters. In all Australian jurisdictions, capacity is presumed for most people until shown to be otherwise. In Gibbons v Wright,^[1] Sir Owen Dixon CJ described capacity thus: ‘...the mental capacity required by law in respect of any instrument is relative to the particular transaction which is effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained.’

Of course when a person does not have capacity, any settlement of an injuries action must be sanctioned by the court – a process which is currently undergoing review in Queensland.^[2] Entitlement to costs for funds management for children has also come under the microscope recently in Queensland, with two conflicting Supreme Court decisions.^[3]

While the legal implications of capacity are commonplace for us, the broader impact of a lack of capacity on the community, including families and carers of those without capacity, cannot be ignored. It is therefore concerning to read reports that 75 per cent of those with severe mental health issues are ‘falling through the cracks’ of the NDIS.^[4] It is imperative that those in our society who suffer from a legal incapacity are properly protected by our legal system, including ensuring their right to be properly insured or compensated when they have been injured through no fault of their own, both by way of damages and legal costs, and properly supported by the NDIS when they are eligible. There should be no ‘falling through the cracks’.

The need to protect our common law system is further highlighted by a recent report showing that the most dangerous industries to work in are agriculture, forestry and fishing, followed by transport, postal work and warehousing, with construction coming in at third place.^[5] It has long been established that a common law system of compensation for negligently caused injuries in fact reduces injuries in the workplace, and improves workplace safety.^[6]

Returning to domestic politics, it is disappointing to again have one of our nation’s leaders, Federal Home Affairs Minister, Peter Dutton, undermining our judiciary, the separation of powers and the rule of law, by his comments to a Victorian talkback radio station in January that by appointing ‘civil libertarians’ to the bench you get ‘soft sentences’. As I stated in the September/October 2017 edition of Precedent, politicians ‘ought to zealously defend and uphold the independence of the judiciary, without in any way suggesting that a judge’s decision is based on anything other than the application of the law with due regard to the evidence before the court’. Politicising the operation of the law with such comments (in the absence of all the facts that lawyers are privy to and politicians are not) is utterly inappropriate, simply fuelling public resentment towards our judicial system. Hearing such a statement from the Minister in charge of national security, a portfolio that relies so heavily on both the courts and respect for law and order, is particularly concerning.

Our Queensland Branch celebrated its 20th conference in February, with attendee numbers eclipsing prior conferences. A highlight was the keynote address by the Hon Ian Callinan AC QC, who also spoke at the first Queensland conference in 1998, shortly after his appointment to the High Court.

Our NSW Branch also held an outstanding conference in March, which I had the pleasure of attending.

I look forward to meeting more of our members in Victoria and South Australian at their branch conferences in May.

Laura Neil is a Barrister at Endeavour Chambers, Cairns. PHONE [phone] EMAIL [e-mail].

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^[1] [1954] HCA 17; (1954) 91 CLR 423 at 438.

^[2] Practice Direction 9 of 2007 is currently under review by a committee comprised of representatives of the Courts and the Registry, QCAT, the Bar Association of Qld, the Qld Law Society and the ALA.

^[3] Maggs v RACQ Insurance Ltd [2016] QSC 41 (following the NSW decision of Rouse v Shepherd (1994) 35 NSWLR 250); Case v Eaton [2016] QSC 239.

^[4] C Knaus, ‘Fears those with severe mental health issues are falling through NDIS cracks’, The Guardian (online), 17 January 2018, <https://www.theguardian.com/australia-news/2018/jan/17/almost-75-of-people-on-mental-health-programs-left-without-ndis-support>.

^[5] ‘Most dangerous industries for workers in Australia revealed’, The New Daily (online), 17 January 2018, <https://thenewdaily.com.au/money/work/2018/01/17/dangerous-industries-australia/>.

^[6] Australian Lawyers Alliance, Common law: Our position (2018), <https://www.lawyersalliance.com.au/about-us/the-importance-of-common-law>.