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sydney alternative media - non-profit community independent trustworthy
Saturday, 13 February 2010
When the legal system works to protect the vulnerable ...
Mood:  special
Topic: legal

Picture: Carol and friends have lunch at Wesley Mission in Pitt Street Sydney. Photo by Tom McLoughlin.

By all normal expectations Carol should be dead, according to her own prediction. "When daddy dies I won't be here anymore".

This was the grim conversation we had with special needs greenie volunteer and art lover Carol 4 years ago. It still chokes us up to think about it.

A chronic generally harmless schizophrenic, she still manages to live independently, with an enormous survival instinct that honours both her deceased parents, survivors of the Holocaust.

"No. Carol, listen to me. Your life belongs to you. No one else. You have your own life after your dad dies." Seems no one ever told Carol this before explicitly or implicitly. Seems that's all 'the permission' Carol needed too.

In an early legal skirmish driving to the Guardianship Tribunal another moving conversation "Carol do you trust me?" "Yes". So that's what that oath back in 1990 being admitted as a solicitor in NSW was all about: An officer of the court albeit a shadow of 'The Street Lawyer' as author John Grisham describes them (a talking book on  recent drive to Canberra).

After chucking the suburban lawyer (our erstwhile principal) option we conferred with the good people at Intellectual Disability Rights Service. Who is "honest and competent" in this area? First referral was to barrister Tania Evers who sees us gratis in Martin Place office but she is overloaded. Next stop is Pam Suttor a member of the Law Society Council, currently convalescing from a serious back problem.

When we met Pam first she was in the main office at $450 an hour presiding over the boutique firm in York St like a cross between the Face of Boe and Jabba the Hut - an eternity of experience.

Much evidence and failed settlement conference later we came to the court hearing.

This week Carol represented by solicitors L Rundle & Co, principal Pam Sutter, lawyers Chris Windeyer (yes that famous name), and team, with barrister silk Chris Simpson SC achieved a judgement from Justice Ward in the NSW Supreme Court in favour of Carol. Out of the 12 parties in the Family Provision Act litigation involving $800K in legal costs (for all parties) over a family estate of perhaps $8 to 16M in size, Carol had the strongest case with her special needs.

L Rundle and barrister Simpson are yet to be paid anything for their 3 years of legal slog. They will be properly compensated out of the estate but they took the risk too for several years. I call that above and beyond the call of duty.

As did this writer signing the costs agreement for Carol which could lead to bankruptcy, being struck off etc

Carol was awarded a judgement of around $1.26M yesterday 12 February 2010  and we were honoured to be her pro bono legal tutor/next friend in the legal process. She has always been 'our people' as a greenie even as a conservative reader of The Australian.

In the course of the judgement hard nosed commercial legal veteran Justice Julie Ward, , said "..in Carol's case ... her normal life expectancy ... is around 41 years". Justice Ward then carved up both the legal arguments, evidence and estate of the parties according to their merit and needs and the legislation. In a 133 page double spaced judgement after a 4 day hearing mid December 2009. We guessed earlier this week in writing a $1.5M result for Carol, and perhaps the lower result down from $2M claimed resulted from a reduced "notional estate" around technicalities of survivorship/joint ownership of shares etc. A win for the wealthy step family.

Even so there is provision for current and future aged care accomodation, supervision and medical costs all itemised at paragraph 371 of the judgement. We are very confident there will be no appeal. The fund will be securely managed by the Public Trustee.

The law was moderating the cold dead hand still reaching out from the grave. Rest in peace daddy, the living will take it from here: Friends, legal respresentatives, public trustee, siblings, step brothers, other relatives .... and the law. Justice was done.


Posted by editor at 10:20 AM EADT
Updated: Saturday, 13 February 2010 11:31 AM EADT

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