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We are hiring!

Receptionist / Legal Assistant

The successful candidate will be managing our front desk and assisting our Team in the conduct and management of client files.

Duties include:

  • Reception duties including greeting clients and attending to incoming telephone calls and enquiries;
  • Collection and delivery of mail;
  • Ordering stationary;
  • Archiving files and maintaining Safe Custody records;
  • Opening files, data entry into Open Practice / Matter Centre;
  • Diary management and boardroom bookings;
  • Preparation of client invoices;
  • Drafting, formatting and amending court documents and other correspondence as directed by solicitors;
  • Arranging meetings and conferences;  
  • Assisting other team members and attending to all other administrative duties as required.

Candidates applying for the position must possess the following:

  • Professional personal presentation;
  • High standard of attention to detail, ability to multi-task and prioritise your workload;
  • Highly developed communication and interpersonal skills, verbal and written;
  • Daily attendance, punctuality and ability to work as a team member;
  • Ability to work under pressure and meet deadlines;
  • An open car licence and car is essential;
  • A commitment to develop your skills with the firm.

We have two offices, one at Wilston and another at Kelvin Grove.  You may be required to work from either location. 

If you can fulfil the above and believe that you would be successful in this role, please forward your resume to Nikki Barry at reception@justuslaw.com.


S87 Licence

Restricted “Work” Licence

By Sarah Camm

The countdown to Christmas is filled with many wonderful events, Christmas parties, family barbecues, and other opportunities to have a few cold drinks in the amazing weather Brisbane has to offer this time of year. It is important that employers and employees plan how to get home from the office Christmas party, and where possible arrangements are made to stay over at your mate’s house rather than driving home. But mistakes happen, and sometimes those mistakes can mean you are facing an extended period without a drivers’ licence.

If you need your drivers’ licence for work, you may be eligible to apply for a restricted licence under section 87 of the Transport Operations (Road Use Management) Act 1995 (Qld) (“TORUM ACT”).

There are a couple of important things to note regarding applying for a restricted licence:

  • you must apply for it, it will not be automatically granted
  • evidence in the form of an affidavit will be required from you, your employer and sometimes other family members setting out your circumstances
  • the application must be made and heard when you are disqualified, that is, when you are sentenced for the offence
  • the court will impose the conditions it sees fit when granting the restricted licence, and you must not drive a vehicle for other purposes or other than in accordance with the court’s orders
  • the court will take the granting of a restricted licence into account when sentencing you for the offence, which may result in a longer period of disqualification

To be eligible for a restricted licence you must satisfy the following criteria:

  • you must be charged with, and convicted of, one of the following offences:
    • drink driving, with a blood alcohol concentration (“BAC”) reading of less than 0.15
    • driving with a relevant drug in your blood or saliva
    • failure to provide a specimen of breath or saliva at the roadside (but not at the police station)
  • as a consequence of the conviction, you will be disqualified from driving
  • the court must consider you are a fit and proper person to hold a restricted licence, having regard to the safety of other road users and the public generally
  • extreme hardship would be caused to you or your family because you would be unable to earn an income. General hardship, such as an inability to take children to school or medical appointments will not satisfy this criteria, even if you are the only member of your family who drives.

You will be ineligible for a restricted licence if:

  • this will be your second conviction for a similar offence, or you have previously had your licence cancelled or suspended, in less than 5 years;
  • your BAC reading was 0.15 or higher
  • the offence occurred while you were driving for work purposes
  • the offence occurred whilst you were driving with a restricted licence
  • the offence occurred while you were driving a vehicle you were not authorised to drive
  • you are a learner driver or on your p-plates
  • you are unemployed

At Just Us Lawyers we can help put you in the best possible position to be successful in your application for a restricted licence. If you have been charged with a drink driving offence, and you will be unable to keep your job without being able to drive, contact our office on 07 3505 0355 for advice on whether you will be eligible for a restricted licence, and for assistance in making the application to court.


Supreme Court decision confirms attorney’s power to make Binding Death Benefits Nomination

By Sarah Camm

In a significant decision handed down last week, the Supreme Court of Queensland has held that a Binding Death Benefits Nomination (“BDBN”) executed by an attorney was valid.

Justice Bowskill’s decision in Re Narumon [2018] QSC 185 is significant because, until now, the question of whether an attorney has (or should have) this power has been unclear, and has been the subject of some discussion in the legal community.

The reason for this uncertainty is as follows:

  • An attorney can be given power to make financial and legal decisions on behalf of a principal, however the execution of a BDBN is not included in the examples of these types of decisions in the Powers of Attorney Act 1998 (Qld);
  • An attorney cannot be given the power to make decisions about special personal matters, including making a will and appointing an attorney, in part on a policy basis, because of the potential for abuse;
  • A BDBN, which provides direction for payment of a benefit after death of the principal, could be said to be testamentary or will-like in nature; but
  • BDBNs differ from a will in that they often lapse, and must be renewed or re-made every three years, depending on the rules of the particular fund.

 

Facts in Re Naruman

In 2013 Mr Giles made a lapsing BDBN with his SMSF, nominating his wife and their son to receive 47.5% of his death benefits each, and his sister to receive 5%.

Shortly after making the 2013 BDBN, Mr Giles lost capacity. Under an existing Enduring Power of Attorney, his wife and sister were appointed his attorneys for personal and financial matters.

In 2016, before the 2013 BDBN expired, the attorneys executed an extension of the 2013 Nomination. They also executed a new BDBN, because they were concerned that the 5% distribution to Mr Giles’ sister in the 2013 BDBN, who is not a dependent as required by superannuation legislation, would invalidate the document.

The Court had to determine:

  1. Whether the 2013 BDBN was valid, despite the nomination of his sister to receive 5%
  2. Whether an attorney can execute a BDBN on behalf of the principal member
  3. Whether the extension of the 2013 BDBN or the new BDBN executed in 2016 were conflict transactions, and whether this invalidated the documents

 

The 2013 BDBN

The Court found that the 2013 BDBN was valid, but that as the member had no power to nominate his sister, and the trustee was not authorised to pay the benefit to her, the nomination of Mr Giles’ sister to receive the 5% benefit was of no effect.

 

Attorneys executing BDBNs generally.

The Court found that nothing in the Superannuation legislation appears to restrict an attorney of a member executing a nomination on behalf of that member, noting that the terms of the fund deed itself actually govern the rights of a member to make a BDBN.

The terms of Mr Giles’ fund deed did not prohibit an attorney executing a BDBN on behalf of a member and in fact expressly contemplated that they could.

The Court then considered the Powers of Attorney Act 1998 (Qld) itself and held as follows:

The effect of a BDBN, if valid, is to bind the trustee of the superannuation fun to pay benefits, following the member’s death, to the nominated persons (and, if relevant, to do so in the nominated way). That does not seem to fall within any of the examples in the definition of a financial matter, including as a legal matter relating to the principal’s financial matters. But the examples are not exhaustive and do not limit the meaning of the provision. It is difficult to see why the exercise of a member’s right under a SMSF deed, to require the trustee of the fund to pay benefits, after their death, in a particular way would not be “a matter relating to the [member’s] financial… matters”. Given the breadth of meaning of the word “financial”… such an act does fall within the meaning of this term.[1]

The Court also held that, although it deals with benefits of a member after their death, a BDBN is not a testamentary act, so it does not fall within the restricted ‘special personal matters’.

While acknowledging the possibility for abuse by allowing attorneys to make a BDBN on behalf of the principal, the Court noted that several protections against abuse exist in the making of an EPOA, as well as in the attorney’s duties to act honestly and in the principal’s interests, and to avoid a conflict of interest.

 

The 2016 Extension

The Court held that there was no conflict of interest in the execution of the extension by the attorneys. This Court accepted that the reason for executing the extension was to ensure continuity in Mr Giles’ estate planning and that his wishes continued to have effect. While the attorneys gained some benefit, this was held to be incidental to the exercise of the power, and coincided (rather than conflicted) with the interests of the principal. The 2016 extension was therefore held to be valid.

 

The new 2016 BDBN

The Court was not prepared to hold that the new BDBN made in 2016 was valid. The new BDBN removed the 5% nomination to Mr Giles’ sister, and nominated Mr Giles’ wife and son to each receive 50% of the benefit. While the change was minor, it was held that without express authority in the EPOA to enter into conflict transactions, the attorneys could not make a BDBN which changed what Mr Giles had proposed in favour of themselves.

 

Conclusion

Re Narumon does resolve some ambiguities in this important discussion. It is important to note however that the Court was considering circumstances where there was an existing BDBN to refer to. The Court did not exclusively determine whether, even if the EPOA did have a conflict clause, the execution of a BDBN either changing the member’s existing nomination or where the member had no previous nomination, would be valid.

Unfortunately, Binding Death Benefits Nominations are often overlooked in the Estate Planning process. EPOAs, too, are seen as a DIY document, simply containing a number of tick boxes for completion. Trust Deeds are often drafted by an accountant, and executed without a legal advice from your estate planning solicitor.

The decision in Re Narumon highlights the importance of having well considered advice over all aspects of your estate plan. At Just Us Lawyers we can review your existing EPOAs, BDBNs and other estate planning documents to ensure that they will do what you want them to.

We can draft appropriate conflict clauses to ensure your attorneys have the appropriate powers to act in your interests, and provide you with certainty and peace of mind that your affairs will be taken care of.

[1] Re Narumon [2018] QSC 185 at [69].