Posts by dl_admin | Brad Wright

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1 week ago

If parties do not want to have matters resolved only by Courts, care needs to be given to drafting dispute resolution clauses.www.facebook.com/2001561219933667/posts/4673958166027279/Lin & Anor v Lee [2021] QSC 336When drafting dispute resolution clauses, care needs to be exercised that they are not void for uncertainty. But in this case one party sought to have the dispute resolved by arbitration, and the other resisted the arbitration.The relevant part of the contract that was said to be the arbitration clause was clause 11c:"If the parties cannot reach an agreement within 21 days, the parties agree to refer the dispute to the Australian Commercial Disputes Centre (ACDC) for final settlement by a single arbitrator appointed in accordance with the Rules of the ACDC, or by another dispute resolution process suggested by ACDC and accepted by the parties. It is expected that any fees payable to ACDC or to the person appointed by ACDC will be paid by the parties equally."The Court found citing AGL Energy Ltd v Jemena Gas Networks (NSW) Ltd [2017] NSWSC 765 that the arbitration clause may be read that an arbitration was a possibility for resolution but not the only way the dispute could be resolved. The court found that it was not an arbitration clause for the purposes of clause 7 of the Commercial Arbitration Act 2013 (Qld).This allowed the litigation in the Court to proceed.Proper Arbitration clauses can readily be found. This is in standard form from the Resolution Institute..."Any dispute or difference whatsoever arising out of or in connection with this contract shall be submitted to arbitration in accordance with, and subject to, Resolution Institute Arbitration Rules.Unless the parties agree upon an arbitrator, either party may request a nomination from the Chair of Resolution Institute."Brad Wright - Arbitrator | Mediator | BarristerLiability limited by a Scheme approved under Professional Standards Legislation. ... See MoreSee Less

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Bradley Wright Barrister

2 weeks ago

Health Care Complaints Commission v Somaey [2021] NSW CATOD 91 5 July 2021(For more detail go to www.bwbarrister.com.au/case-summary-dba-code-conduct/)The Tribunal had reason to consider the the obligations arising from the DBA code of conduct.“We do not regard the good practice specified in section 8.10 of the Code of Conduct as creating an absolute obligation and that any departure from the good practice will constitute a breach of the section. “Ultimately the Tribunal found that there was no reasonable excuse, but this passage is important for lawyers practising this area and practitioners to understand that although the Code of Conduct is important, there can be excuses for not applying the guidance in the Code of Conduct. This may particularly have application currently with the heightened levels of concern around the COVID-19 pandemic. INFECTION CONTROL RESPONSIBILITYIn relation to infection control, the current understanding of the profession could be said to be that a principal of a practice has overall responsibility for the infection protection control program but also that each practitioner has their own responsibility to practise within these regulations, standards and guidelines. The Tribunal found that that the Commission and the dentist agreed that the obligations to maintain infection and hygiene control were applicable to the a dentists practice when allowing other dentists - under non employment arrangements - to use it for a fee.There is arguably little utility in practitioners pointing the finger, as all parties should have proper infection control as a shared goal and to work collaboratively towards patient safetyRESPONDING TO REGULATORSIt should be obvious that a failure to respond to a regulator and its officers appropriately can be a matter that may give rise to allegations of unprofessional conduct. ... See MoreSee Less

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Bradley Wright Barrister

3 weeks ago

The Child Dental Benefits Scheme has recently been improved to allow greater funding for the dental treatment of children.In 1994 the Professional Services Review(PSR) part of the Health Insurance Act was created to manage non-fraudulent but ‘inappropriate’ billing under the Act.This was originally almost entirely for medical practitioners, but as dental treatment has become a larger part since the expansion into chronic disease patients and children, dental practitioners have become part the focus of this scheme.Any dentist treating patients under this scheme should be aware that the billing is monitored and statistical outliers are identified and initially reviewed under the Practitioner Review Programme, as part of Medicare. If that review results in unresolved concerns, then the matter is referred to the PSR.The process thereafter is well developed, but the system is quite complex and there are some important junctures where decisions and submissions are critical.In the last five years as the PSR has become more active in relation to the CDBS, dentists and occasionally their advisors have misunderstood the realities and practicalities of the process.There are strict compliance requirements. In advising on these matters, concerns frequently arise about records, necessity for treatment, inadequate examinations, and supervision of non dentist practitioners - both before and after the changes to scope of practice in July 2020. Dentists who are subject to the PSR should get assistance from their indemnifiers. If their indemnifiers have a cap on assistance as some do, then the dentist should seek appropriate specialised legal advice.An overview is at www.bwbarrister.com.au/cdbs/Brad Wright is a registered dentist and barrister specialising in dental practice issues – including the workplace, practice sales, contracts, restraint of trade, partnership disputes and practice regulations.Liability limited by a Scheme approved under Professional Standards Legislation. ... See MoreSee Less

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