Christopher Roche's Profile
Legal Eagle



  • Legal Eagle Asked on 4 June 2016 in Personal Injury Compensation.

    Hospitals and Doctors can be liable for medical malpractice if they fail to follow correct procedure or omit to do something they reasonably should have done.  It is most important that you seek legal advice on this matter as you may well have a claim and there are time limits within which a claim can be brought.

    This answer was accepted by Taylor. on 25 July 2016 - Earned 20 points for answering.

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  • Legal Eagle Asked on 19 November 2015 in Employment Law.

    A casual employee can change to full-time or part-time employment at any time if the employer and employee both agree to it. However, employers also need to be aware that in some Awards, a casual employee, who has been engaged on a regular and systematic basis for a specific period of time, may have the right to elect to have their contract of employment reviewed to provide the option of permanent employment.

    However, based on your advice that your  Award gives you the right to elect the option of permanent employment and this has been ignored, it would appear that you may have a valid claim against your employers, both for reclassification and for annual leave entitlements.

    I suggest that you first speak with your Union representative (if you are a member of a union) , who should take up this cause for you. Failing that, you should
    make a complaint to the Fair Work Ombudsman  or apply to the Fair Work Commission if the company continues to ignore you.

    I do not know whether or not you provided written and dated notice of your election to convert to a permanent employee to the Company, and whether or not you kept a copy of this notice? If so, this will make it easier in your claim for reclassification as a permanent employee and consequently the annual leave entitlement. The fact that your payslips show annual leave accruing is further evidence in support of your claim.

    This answer was accepted by Squires266. on 25 July 2016 - Earned 20 points for answering.

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  • Legal Eagle Asked on 18 November 2015 in Defamation Law.

    Hi Gubs,

    It is unusual for a law firm threatening defamation action on behalf of their client to send their threatening letter to more than the party they intend to sue, but there is nothing to stop them from doing so.
    Without knowing more details it is difficult to comment, other than to say that the purpose for so doing  might be to show the third party that they believe their client has been defamed and they are not going to put up with it.

    Please remember however, that one of the defences to any defamation action is truth.

    This answer was accepted by gubs. on 25 July 2016 - Earned 20 points for answering.

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  • Legal Eagle Asked on 8 November 2015 in Wills and Estates.

    No, this depends entirely upon what the terms contained in your cousin’s will. It is impossible to answer without seeing a copy of the will.

    As you and your sister are named as the only beneficiaries named in your cousin’s will, it may be that the surviving beneficiary inherits your cousin’s  entire estate.

    Check to ensure that your cousin has provided written instructions in their will, that specifically spell out that if you die before your cousin, your share of your cousin’s estate is to go to your husband – if that is what your cousin wishes to do.

    Look for a clause that says something like this:

    “IF my cousin (wingod’s real name) shall not survive me then I GIVE one half of my property both real and personal to my cousin (wingod’s real name)’s husband (insert Husband’s full name).”

    This answer was accepted by Wingod. on 25 July 2016 - Earned 20 points for answering.

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  • Legal Eagle Asked on 5 November 2015 in Debt and Bankruptcy Law.

    Hi Sharon,

    All you need to do is complete and lodge a:

    • Debtor’s petition (application to become bankrupt; includes signed acknowledgement of Prescribed Information)
    • Statement of affairs.

    The debtor’s petition must be completed and lodged with the Official Receiver within 28 days of the form being signed by you.

    When completing your forms:

    • Answer all questions and answer them truthfully.
    • If they do not apply to you, please write “N/A” (not applicable).  Penalties applyfor providing false or misleading information.
    • Ensure you have read and understood the prescribed information, located on the back of the debtor’s petition form.

    Forms and instructions are available at ‘Forms for declaring bankruptcy’.

    This answer was accepted by sharon. on 25 July 2016 - Earned 20 points for answering.

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  • Legal Eagle Asked on 30 October 2015 in Criminal Law.

    Sassy, when you go  to court you will be known as the Respondent.

    Respondents to an intervention order have four options. You can:

    1. agree to an intervention order being made
    2. agree to an undertaking instead of an order
    3. argue against the order
    4. ignore the summons and not go to court.

    Option 4 is not a good idea as the court can make orders in your absence.

    When you go to court, explain to the Magistrate that you either own the house or are renting it, whatever the case may be.  Advise the Magistrate that your daughter no longer resides there and ask that any order that be made or undertaking that is given not include a condition that you cannot return to your own home.

    This answer was accepted by sassy. on 25 July 2016 - Earned 20 points for answering.

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  • Legal Eagle Asked on 30 October 2015 in Miscellaneous Legal Questions.

    Hello Joanne,

    Movable units are usually hired from the Department of Housing , so there is no ownership of such.

    The hiring agreement sets out the terms and conditions, and the responsibilities and obligations of the property host, the applicant and the Director of Housing.

    By signing the agreement, the applicant agrees to pay the weekly or fortnightly hiring fee for at least 12 months.

    Once bankrupt your father in law  can no longer sell or deal with most of his assets or items of value, the exceptions being property protected under the Bankruptcy Act, as shown below. Only the trustee or a secured creditor is able to do so. The trustee may dispose of your father in law’s property for the benefit of creditors.

    Assets include anything of value belonging to him at the date of bankruptcy together with assets acquired by him before his discharge including lottery wins, prizes of value etc.

    Your father in law’s interest in real estate,, money in bank accounts, vehicles exceeding the prescribed amount in value, stocks and shares, antiques and other personal property of saleable value are all included. Any interest he has or acquires during bankruptcy as a beneficiary of a deceased estate belongs to the trustee.

    Certain assets are protected by the Bankruptcy Act which means they cannot be sold by your trustee to pay creditors. The property protected by the Bankruptcy Act includes necessary household furniture, personal effects, limited tools of trade, life insurance and superannuation policies and his primary means of transport up to the prescribed amount in value (eg. car or motor bike). At the moment it is up to a net value of $7600 so your father in law’s car should be fine.

    Going into bankruptcy will remove any obligation on him to repay the $30,000 debt.

    Debt Collectors would need a court order to go onto your property. Also, your own property is your property and not part of your father in law’s bankruptcy, so will be safe from the Trustee.

    This answer was accepted by JoanneI. on 31 October 2015 - Earned 20 points for answering.

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  • To answer this question more fully, I need to know the State or Territory in which you wish to run this competition and whether it is online or offline.
    Given that you have not disclosed which State you are from, and that the laws of each State and Territory are different, I suggest that you visit the following site that provides information on  who to contact in the various locations. Click here for details.

    This answer was accepted by jb89. on 25 July 2016 - Earned 20 points for answering.

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  • Legal Eagle Asked on 29 October 2015 in Traffic Law.

    The first thing to do is check the accuracy of your speedometer by getting it calibrated..

    If a speedometer is not accurate, it could display a lower speed than the vehicle is actually travelling at, thus causing drivers to believe they are not speeding when in fact they are. This effect can occur if a speedometer under-reads true speed.

    A speedo over-reads if it displays 100kmh when the vehicle’s actual speed is 90kmh.
    A speedo under-reads if it displays 100kmh when the vehicle’s actual speed is 110kmh.

    Up until July 2006 the Australian Design Rules required new cars to have speedos that are accurate to within 10% of actual speed. The current Rules disallow under-reading, and permit over-reading by up to 4kmh + 10%.

    If your speedometer is faulty, the process to follow depends on  the State you were charged in..

    For example, in Victoria, the court can consider evidence of how fast your vehicle was going. It can not accept evidence of how fast you thought it was going.

    If you want to argue a fauly speedometer, you will need a relatively new car (factory configuration, not worn out), an engineer’s report that shows how much the speedo under-reads, the opinion of an expert to say that at the time when the vehicle was being driven at the speed detected by the police, the vehicle’s speedo displayed a speed that was within the speed limit, and evidence from the driver to say that he had an honest and reasonable belief that at the time of driving he believed his speedo was accurate, and that it displayed a speed within the speed limit at the time of the offence and that he relied on his speedo to determine what speed he was driving at.

    However, a court is unlikely to accept this defence if your actual speed was so high that even an inaccurate speedo would have displayed an illegal speed, or if you did not have good reason to trust your speedo was accurate, or if you can not prove your speedo is in fact under-reading.

    Before you embark on court proceedings in a case like this, you might wish to try writing to any Penalty Review Board in the State where the alleged offence occurred, enclosing a copy of the engineers report and calibration test results, and ask them kindly to withdraw the notice.

    If you believe the speed camera is faulty, and particularly if your licence is at risk, then it may be worthwhile to take the case the court because it is always possible to avoid licence loss if the case is properly handled.

    However, it is not easy to defend speed camera cases. Sometimes expert evidence is relied upon to cast doubt on the accuracy of the speed reading. In almost every case it is not necessary for drivers to prove what speed they were travelling at. The police have the obligation of proving the case against the defendant.

    Nevertheless, disproving a speeding fine is a difficult task for drivers.

    Given your speeding offence is alleged to have been recorded by electronic means, it is difficult to succeed unless you’re able to cast a doubt about the accuracy of the device, or the manner in which the device was operated.

    Challenging speeding fines also tend to be quite expensive because of the reliance on experts. You have to weigh up the value in spending thousands of dollars on a lawsuit versus paying the fine.

    If you had a person with you in your vehicle to confirm that you were not travelling at the estimated speed, then it might be worthwhile challenging the speeding fine.

    At the end of the day it is a question of what is more important – Principle or your Pocket.

    This answer was accepted by Tracey. on 25 July 2016 - Earned 20 points for answering.

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  • Legal Eagle Asked on 29 October 2015 in Family and Relationships Law.

    Hi Joan,

    Yes. You most certainly can.  The Family Court of Australia publishes a number of fact sheets in order to assist those who represent themselves. These sheets address matters such as the filing of documents, court dress and conduct and procedural matters. Duty solicitors (provided by the Legal Services Commission) or duty registrars may be able to provide assistance to self-represented persons, and while court staff cannot provide legal advice they are extremely helpful in explaining deadlines, filing procedure and can provide do-it-yourself kits for certain forms and applications.

    At the end of the day the most important thing is for you and your husband to try and work out an agreement as to division of matrimonial assets that suits you both.
    Legal fees can chew up a large share of matrimonial property and this is often as a consequence of one or both parties taking unreasonable positions. This may be as a consequence of one or both parties feeling hurt by the other but at the end of the day, unless common sense prevails both parties will suffer from increasing legal fees.

    I note you have 3 children and they will require significant financial support, given their ages.   This will need to be factored in to any property settlement agreed between yourself and your former partner or ordered by the Family Court.

    Consider asking your partner if he is prepared to consult a mediator experienced in family court matters before either of you file court proceedings.  In almost every property settlement matter, the Family Court will require the parties to undergo some form of dispute resolution and this is usually by way of mediation. It makes sense to do this first before legal fees are unnecessarily incurred. Get both

    A very good fact sheet is provided here. Whilst it is a Western Australian publication, family court matters come under Commonwealth legislation [ie Family Court Act 1975 (Cth)]  so the information in the fact sheet  will be relevant no matter where you reside within Australia .

    This answer was accepted by joan. on 25 July 2016 - Earned 20 points for answering.

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