This article by Dr Christopher Ward SC, investigates the tension between States rights and the humanitarian needs of the passengers and crews.
Please click here to view the article.
Inquest of the death of Melissa Standen
The NSW State Coroner delivered findings into the Inquest of the death of Melissa Standen on 25 September 2018. Madeleine Bridgett represented Mr Bruce Standen, Melissa’s father. The Coroner found that the manner of death was a fall from a bed at Allowah Hospital due to failures to implement proper systems for risk assessment, bed selection and the training of staff for a child patient with profound disabilities.
The Coroner found that the following factors contributed to Melissa falling from the bed and her subsequent death: failure by the hospital to develop and implement an appropriate risk assessment and admission procedure; failure to implement a proper risk assessment to manage Melissa’s change from a cot to a bed; the selection and use of a bed totally unsuited to the needs of Melissa; failure to properly adapt the bed selected to reduce risk given Melissa’s special needs and the inappropriate use of bumpers as a fall prevention device; failure to ensure important clinical information was retained regarding the adaption of the bed to ensure staff were fully informed of the specific needs of Melissa whilst a patient at the facility; inadequate training of staff and the lack of a proper process to respond to concerns by staff; the lack of involvement by the hospital of occupational therapists in the selection and use of appropriate beds for children with profound disabilities; and poor management practices relating to the development of internal policies and the training of staff regarding the admission and assessment of patients.
The Coroner also made recommendations to the Minister of Health to establish a group of appropriately qualified experts, in consultation with organisations that represent or care for children with physical and neurological disabilities, to develop a standard, guideline or other type of publication, which is directed to improving the safety of beds used by children with physical and/or neurological disabilities.
You can read the findings here and related media article here.
The usual costs rules apply in NCAT for applications under the National Health Law –no need for special circumstances
KJ Young has won a costs application for the Dental Board of Australia (the Board) in respect of an application by a dentist for specialist accreditation in Australia as an orthodontist. Dr Gustavo Vivaldi practised as an orthodontist in Brazil for over a decade before migrating to Australia in 2013. In 2003, he completed a Master’s degree in Orthodontics at the Associação Maringaense de Odontologia, a tertiary institution in Brazil. Since July 2015, he has held registration as a dental practitioner in Australia. In July 2016, Dr Vivaldi applied to the Board for specialist registration in the field of Orthodontics. The Board refused to grant that application. In September 2017, Dr Vivaldi exercised his right to appeal that decision to the NSW Civil and Administrative Tribunal (NCAT).
The appeal was listed for hearing before NCAT on 11 and 12 July 2018. On 6 July 2018, Dr Vivaldi informed the Tribunal of his decision to withdraw the appeal and proposed that each party should bear their own costs. The Board refused and asserted that Dr Vivaldi is liable for its costs of the appeal. Being unable to reach agreement, the parties requested that the Tribunal determine the issue of costs. The Tribunal decided to order that Dr Vivaldi pay 60% of the Board’s costs to 28 June 2018 and all of its costs thereafter.
Litigants or potential applicants need to be mindful that in NSW, when they apply for administrative review of a registration decision made by the regulator or national boards under the Health Practitioner Regulation National Law (NSW) (the National Law), the usual costs rules apply and not the ‘special circumstances’ costs rule under clause 60 of the Civil and Administrative Tribunal Act 2013 (NSW). In exercising the power conferred by the National Law to award costs, the general rule is that costs follow the event: clause 13 of Schedule 5D of the National Law; Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85]; Health Care Complaints Commission v Do [2014] NSWCA 307 at [51].
Despite effectively ‘surrendering' the entirety of his case in the lead up to the hearing, Dr Vivaldi refused to agree to pay any costs which had been incurred by the Board in preparing for the hearing of his application. An offer of 60% of its costs was made by the Board in the lead up to the final hearing which was rejected outright by Dr Vivaldi on the basis that his case involved matters of public interest such that the costs discretion should be exercised in his favour. The Tribunal found that Dr Vivaldi should have accepted the offer that had been made by the Board and ordered him to pay the Board’s costs as agreed or assessed. It appears being the model litigant and making early and appropriate offers sometimes pays off for government agencies.
Click here to view reasons of decision.
Ian Neil SC joins 6 St James Hall
The members of 6 St James Hall Chambers are delighted to announce that leading Sydney silk Ian Neil SC has joined the Floor from 1 September 2018. A silk since 2006, Ian has a wide appellate, commercial, inquiries and equity practice, with a particular specialty in employment and industrial law.
Ian’s modern and collaborative approach to advocacy and his national practice complement the existing commercial, industrial and international strengths of 6 St James Hall. Ian joins the existing international practice group of Chambers and will continue to conduct mediations and arbitrations in Australia, Hong Kong, and in the London Beth Din.
Ian will continue to practice from the new 6 St James Hall Annex in the Art Deco Trust Building.
For all inquiries please contact head of chambers, Dr Christopher Ward SC (cward@stjames.net.au), clerk to Ian Neil SC, Sharon Verhagen chambers@ianneil.com or Chambers Practice Manager Nora Faulua
Dr Ward SC represents lawyer Bernard Collaery in the Witness K case
Dr Christopher Ward SC is a member of the legal team instructed by Gilbert & Tobin to represent lawyer Bernard Collaery, facing serious charges under national security legislation before the ACT Courts.
The case appeared on Ten Eyewitness News Sydney, and was covered by The Guardian as well as The Canberra Times.
78th International Law Association Biennial Conference
6 St James Hall is very pleased to be a supporter of the 78th International Law Association Biennial Conference, to be held in Sydney from 19-24 August 2018.
Dr Christopher Ward SC, as President of the host branch of the International Law Association, heads the conference organization and will address the Conference, and barrister Sandrine Alexandre-Hughes will also speak on private international law.
The Conference is a major international event, and will be opened by the Foreign Minister, the Hon Julie Bishop MP, and will also be addressed by the Chief Justices of the High Court, Federal Court, Family Court and New South Wales Supreme Court, as well as the Right Honorable Lord Mance of the United Kingdom Supreme Court.
For any inquiries or registrations, please see the Conference website, www.ila2018.org.au, or contact Dr Ward SC directly at cward@stjames.net.au