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Legal Aid News Issue 17: Case Reports << Back to index Case report-Civil Law Federal Court win for navy veteran Repatriation Commission V Gorton [2001] FCA 1194 Navy veteran, Mr Raymond Gorton, had a major win in the Federal Court in his fight for a disability pension from the Department of Veterans Affairs. Mr Gorton claimed that his high blood pressure and associated problems were caused through his war service. To be successful in his claim for pension Mr Gorton needed to satisfy at least one of the legal criteria connecting high blood pressure to war service. In a landmark decision, the Full Bench of the Federal Court has affirmed the right of veterans to have their claims for disability pension determined not only on the basis of the current law, but also if more beneficial, on the law in place when their claim was decided. When his claim for pension was initially rejected by the Department of Veterans Affairs , Mr Gorton appealed. During the course of his appeal the legal criteria for his condition was amended. Mr Gorton argued to the Federal Court that he should able to apply either the law in place when his claim was originally decided, or the current law, whichever would be more likely to succeed. Veterans' advocate Liz Sadleir says this decision will have enormous impact on all veterans claiming disability pension. "It means that if they have their claim for pension rejected by the Department, they can appeal that decision secure in the knowledge that later changes to the law can only improve their chances of success. They will be able to have their claim assessed against both the revised legal criteria as well as the original law." There have been many veterans like Mr Gorton, whose claim for disability pension was rejected, but who found that the law was amended during the appeal process. Liz says, "Some veterans would lose with the amendments, for other veterans it would mean, like Mr Gorton, that their claim could now be successful. The decision of the Court affirms the right of these veterans to have their claim determined under both the new and the revoked law." Raymond Gorton celebrates outside the Federal Court with advocates Judith Buss (L) and Liz Sadleir (R). Case report–Civil Law Client granted permanent residence Under the domestic violence provision of the Migration Regulations, in cases where a woman is married to her sponsor and the relationship subsequently breaks down due to domestic violence, the woman can be granted permanent residence. In the case of Ms B, social worker Jean Alexander prepared a report highlighting Ms B's experience of violence within her marriage. The report was accepted by the Department of Immigration and Ms B was granted permanent residence. Jean also assisted Ms B to find suitable alternative accommodation and linked her to other community supports. A happy client shares the good news about her permanent residence with Jean Alexander. Case report–Criminal Law Woman owes her new start to Social Work In one of the most challenging criminal cases ever to involve our Social Work Section, a woman with a complex 25-year psychiatric history received a greatly reduced/minimum sentence for her crime. The woman, in her late 30s, was charged with Attempt Murder of her father. Despite a knife lunge, precise words of intent accompanying the action and a clear-cut confession in an erisp, the charges were reduced to Assault Occasioning Actual Bodily Harm (AOABH), primarily due to the efforts of social worker, Carol Tingate. Our client had multiple disabilities, including organic brain damage and a mild intellectual disability which could affect intent. Her problems included a hostile dependent relationship with her father. At the time of the offence, the father's strict regime of managing his daughter appeared to have produced a pressure-cooker environment at home. Several no bill applications were made in an attempt to reduce charges. Finally with counsel Helen Cox’s continued persistence, the Crown offered AOABH. However, this was conditional upon finding suitable accommodation and supervision for our client in the community. Our client had a history of chronic unstable epilepsy from the age of 11. Her frequent fitting had led to permanent physical injuries. So chronic were her epilepsy and drug regime, that she had acquired organic brain damage. The damage over time also led to a mild intellectual disorder. The client had a history of depression and psychotic episodes. There was also a background of very acrimonious family divorce and over time she had developed a severe personality disorder. Her history included frequent attempts at self-mutilation and suicide, one of which had resulted in a serious physical disability. She had been in and out of institutions from the age of 14, living primarily in juvenile institutions, psychiatric institutions or gaol. She also had a history of unprovoked violence following alcohol or medication abuse or in response to being rejected from hospitals. To manage in the community, she needed a constant and complex mix of prescribed medications and regular consultations with neurologists and neuropsychologists. The last psychiatric unit to which the client was admitted employed a security guard to monitor her around the clock. The Department of Health indicated that none of the Sydney psychiatric units would admit her except in an emergency as she was not considered to have a “traditional” mental illness. There had been incidents with refuges and boarding houses in the past which made such accommodation unsuitable. The client had no social or family supports, had a severely limited work capacity, and had, it seemed, exhausted all available service options. Impossible to give this woman a chance at a future whilst also safeguarding the community? One would have thought so, but then Carol came along. Drawing together subpoenaed medical and institutional records spanning 25 years, Carol compiled a detailed client history. She advised that the only possible alternative to gaol at this stage of the client’s life was an individually tailored care plan that would provide the level of community support needed. Carol's comprehensive social work report (volume!), showed just how damaged our client was. There was enough detail to ensure that any agency dealing with our client in future would be fully aware of the safeguards needed to minimise her risk of violent behaviour and self-harm. Carol also used this report to support a funding submission to the Department of Ageing, Disability and Home Care. Through a combination of networking and dogged advocacy, she found an agency that specialised in providing care for disabled people with challenging behaviour. After assessing our client, staff at this agency agreed to accept her into their program - depending on funding approval. They produced a management plan for 24-hour care and monitoring until our client stabilised in the community. The Crown accepted the plan and the charges were reduced. Judge Blanch set a minimum to coincide with the date the funding body would make a decision. We have just been informed that the funding package has been approved and our client is now due for release in the next few weeks. I can't say enough about the support Carol and our Social Work Section provided throughout this most challenging process. Such a difficult case shows how vital it is Legal Aid can still act as a comprehensive service provider, dealing with extremely vulnerable and difficult clients, especially as so many other agencies seemed to have failed over 25 years. Thanks should also be given to Helen Cox who skilfully steered the whole legal process through to completion. Our client is ecstatic with the result and looks forward to starting a new life. Jennifer James Indictable Case report-Family Law Breaking in new law As many of you know, there’s a new Care and Protection Act that sets out how the state can involve itself in families to protect children. Given its newness, a lot of how things are supposed to work under the new Act remains unknown, and both the Department of Community Services (DoCS) and Legal Aid are actively looking for cases to take up to the Supreme Court to clarify and interpret the Act’s provisions. In the first case on the new Act that was taken up to the Supreme Court, Re Edward, Beth Jarman and Deborah de Fina, (Family Litigation, head office), acted for the mother of a young man who was made a ward late last year under the old Care and Protection Act. At the time the order was made, the mother's illness looked terminal. However, since then her health had improved, and the young man had run away from the boarding school where DoCS had placed him, saying that he wanted to remain with his mother. With Beth’s assistance, the mother made an application to the Children’s Court, under s90 of the new Care and Protection Act, to rescind the wardship order (under that section, she first had to obtain the leave of the Court to apply for rescission, by showing a significant change in circumstances since the wardship order was made). When her application for leave first came before the Children’s Magistrate, the matter was adjourned for her to put on some medical evidence showing that there had indeed been a significant change in circumstances. The Magistrate also made an interim order “suspending” the wardship during the adjournment, so that the boy could remain with his mother. The mother filed the additional evidence and on the next occasion, her application for leave to apply for rescission was granted. Then her application to rescind the wardship order was adjourned so that DoCS could decide what their position was in relation to her application. Again, the Children’s Magistrate made an interim order that the current wardship order be “suspended” during the adjournment. DoCS then challenged in the Supreme Court the Magistrate’s power to make both interim orders. In effect, DoCS’ arguments in the Supreme Court were that the Children’s Court could not make any interim orders in care proceedings unless and until after the care matter had been “established” – ie, well into the proceedings! Deborah represented the mother in the Supreme Court where the interim orders were quashed, the Court deciding that the new Care and Protection Act did not give the Magistrate the power to make an order “suspending” a wardship order. The Supreme Court did not accept DoCS arguments regarding the general power to make interim orders. Instead, it agreed with Deborah’s submission that, whether on the adjournment of the application for leave or the adjournment of the application to rescind, the Children’s Magistrate could have made on an interim basis any of the final care orders contained in the new Act, even though the matters set out in the sections describing final care orders had not been and could not be considered until after a final hearing. Re Edward is first, and currently the only, higher court decision interpreting provisions of the new Care and Protection Act. Case report- Civil Law Discrimination law clarified A Supreme Court decision has found that the State of NSW is liable for the conduct of police officers who carry out their functions in breach of the Anti-Discrimination Act (the ADA). The Supreme Court also found that the services provided by the Police Service to the public are a “service“ within the meaning of the ADA. In 1993 Edward John Russell was apprehended and arrested at Oberon by 11 police officers. In the course of this arrest he was forcefully handcuffed, repeatedly punched by unidentified police officers and his head was rammed into a police wagon. Mr Russell was screaming as he was dragged to the police wagon while a number of officers yelled and swore at him. A complaint was made to the Anti Discrimination Board in 1998, alleging racial discrimination and racial vilification. The Equal Opportunity Division of the Administrative Decisions Tribunal (ADT) found in favour of Mr Russell. The Police Service appealed to the Administrative Decisions Tribunal’s Appeal Panel against these orders. The Appeal Panel referred the three questions of law to the Supreme Court. Justice Sully of the Supreme Court held that the Anti-Discrimination Act (ADA) does not apply to the Commissioner of Police or the NSW Police Service, making the Commissioner or the Police Service liable as “employer” or “principal” of police officers in the Service. This is because ordinary serving police officers are not employees but rather appointees to a public office. However Sully J found that the State of NSW is liable for the conduct of police officers who carry out their functions in a manner contravening the ADA. Sully J also held that the services provided by the police are services provided by a public authority as contemplated by the ADA. Sully J found however that in this case, the police had wholly failed to provide the services they were bound to provide to Mr Russell, such as protecting him from injury and protecting his property from damage. The Supreme Court also found that the Administrative Decisions Tribunal did not have the power to order the NSW Police Service to make a record on the file of each of the police officers stating the conclusions of the Tribunal. This case is clearly a very important one in that it has established a ground for aggrieved members of the public to commence discrimination proceedings against the Police for any discriminatory actions in the exercise of their functions. This case is likely to be of interest to a wide range of civil liberties and other groups. Atousa Khadem Civil Litigation |
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