W Editor’s Welcome Nick Owczarek Editor in Chief
hat is the ‘truth’ today? Has political discourse moved beyond fact and reason? These are just two of many key questions explored in this first edition of The Brief, reflecting the theme ‘Living in a Post-Truth World’. In this ‘new world order’, with Donald Trump in the White House, Britain leaving the European Union, and the rise of demagogues here at home and abroad, uncertainty reigns supreme. Opinion and emotion hold greater influence than rationality. Stable liberal democracies like Australia are being challenged as the electorate shifts its support towards alternative and fringe politicians appealing to those who
have lost faith in the major parties. Very recent events have also reinforced concerns about stability and predictability in politics and international relations. The legal challenge being mounted against Trump’s executive order banning immigration from Muslimmajority nations is putting the checks-and-balances system to the test. Liberal Senator Cory Bernardi’s defection from his party may lead to disintegration of the mainstream conservative vote, while the reportedly hostile phone call between Trump and Australian Prime Minister Malcolm Turnbull suggests there may be cracks forming in the longstanding Australia-US alliance.
What’s new in the law? Review of the Workers Compensation Scheme The NSW Legislative Council’s Standing Committee on Law and Justice launched its first review of the Workers Compensation Scheme in 2016. Issues considered include the adequacy of the definition of ‘suitable employment’ contained in s 32A of the Workers Compensation Act 1987 (NSW). In a submission by the Law Society of New South Wales, concern was expressed as to the practicality of the definition, and a recommendation was put forth to remove paragraph (b) which allows a Court or Commission to conclude that suitable employment is available regardless of whether the work is of a type that is generally available. In its submission, the Law Society referred to Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 as an illustration of the often broad interpretation of suitable employment adopted by courts and the Workers Compensation Commission. The Law Society recommended adopting a realistic approach that considers existing labour markets and the employee’s place of residence, to which the NSW government is yet to respond. 4 | The Brief
Ellen McCrea
Time still matters In Prince Alfred College Incorporated v ADC [2016] HCA 37, the High Court of Australia unanimously allowed an appeal from the Supreme Court of South Australia and set aside an order of the Court of Appeal that granted the respondent an extension of time to bring his proceeding. In 1997, the respondent decided not to sue Prince Alfred College (PAC) after being sexually abused by a PAC housemaster. The respondent accepted PAC’s offer to pay medical and legal fees as well as his son’s school fees. Section 48 of the Limitations of Actions Act 1936 (SA) provides that a court’s power to grant an extension of time is discretionary. The primary judge held that an extension of time should be denied but proceeded to decide on questions of liability. Although the Court of Appeal granted an extension of time, the High Court overturned this decision. The delay resulted in deficient evidence which would have resulted in an unfair trial for PAC. Furthermore, the respondent’s decision not to commence proceedings contributed to the decision reached by the Court.