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Unsolicited (Letters to the editor)

Every Issue

Cite as: (2008) 82(10) LIJ, p. 08

We welcome letters to the editor of no more than 400 words.

Email: Fax: 9607 9451 Mail: LIJ, Managing Editor Mick Paskos, GPO Box 263C, Melbourne 3001; or DX 350 Melbourne.

We reserve the right to edit letters and to republish them in their original or edited form on the internet or in other media. Letters must include a phone number and address for authentication.

Double punishment

The Victorian Transport Accident Scheme is widely known to provide no-fault cover which includes medical expenses, payment for loss of income and loss of earning capacity, and impairment benefit payment.

However, since the passing of the Transport Accident Act 1986, an aspect of fault has incrementally been introduced into the scheme. Some would say that the statutory scheme is increasingly moving away from being a no-fault system.

I have noticed 17 separate sections, each of which removes rights of an accident victim. These are all in the Transport Accident Act, such as ss39(3)(b), 40(1)(a)(ii), 40(1)(d)(ii), 40(2)(b), 40(3), 40(4), 40A(1)(b), 40A(4)(a) and (b), 91(2), 96(5), 103(2), 117A, 139(1)(a), 139(4)(b), 156(3)(d) and 165(2), all of which create a removal of rights for a person who is convicted of driving related offences.

Additionally, there are provisions such as s53(1B), which removes any right to receive loss of earnings or loss of earning capacity payments in respect of any period during which the person is in prison (regardless of whether the imprisonment is related to a driving offence).

Given that loss of earnings payments cease at the 18-month mark post-accident and that loss of earning capacity payments cease at the three-year mark post-accident, any period of imprisonment is likely to result in some substantial additional financial disadvantage to the person who, after all, has been injured in the motor vehicle accident.

Practitioners involved in driving offences and/or criminal law must become thoroughly aware of the consequences of a conviction, or else their client faces the risk of a second punishment through removal of statutory rights under the Transport Accident Act.

John Voyage
Maurice Blackburn

For providing the letter of the month, John Voyage has won a $50 book voucher from the LIV bookshop, redeemable for the next 12 months.

Misinformation costs pensioners

In December 2001 Centrelink wrote to some 25,000 pensioners and advised them that their pensions would be reduced or cancelled from January 2002 because they were trustees or beneficiaries of trusts [see, “Social security and trusts”, May 2003 LIJ, page 50, authored by myself]. Each pensioner was further advised that they could only avoid this consequence if, before January 2002, they ceased having any relationship whatsoever with the trust, i.e. they could not be the trustee nor could they be a beneficiary.

On 20 August 2008, Kenny J in the Federal Court case Elliot v Secretary, DEEWR [[2008] FCA 1293] ruled that a person who was a beneficiary of a trust but not a trustee should not have their pension affected by this arrangement. This means that some 25,000 people (including nursing home residents) may have been given misinformation by Centrelink which has cost them a pension for the remainder of their lives.

Michael Anstis



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