Should an inference be made against a party that fails to call a witness?

Posted on May 23rd, 2016

by Rose Laffan

Rose Laffan is a Senior Solicitor at Mullane & Lindsay in Newcastle and practises extensively in Family, Relationship and Matrimonial Law

In the recent case of Masoud and Masoud the Full Court of the Family Court was required to consider whether the trial Judge had failed to draw an inference against the wife when she had not called her father and mother as witnesses in relation to money that they all said her parents had loaned to her and which the husband thought had been a gift.

The so called “rule in Jones and Dunkel” allows a Court to draw an inference unfavourable to the party that failed to call the witness, such that the evidence of the uncalled witness would not have assisted the party’s case. Read the rest of this entry »

Preliminary discovery – How do you find out if you have a claim?

Posted on May 23rd, 2016

by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

People sometimes suspect they have legal rights but just aren’t sure – and the only documents that may help them decide, are held by the prospective defendant. Many Courts allow for “preliminary discovery”, that is, for orders requiring a potential (not actual) defendant to produce documents and records to help the potential plaintiff work out whether they have a case or not. However it is not an easy process. To obtain preliminary discovery an applicant must show, amongst other things, that it was ‘otherwise unable’ to obtain sufficient information to decide whether or not to sue

An insurer (RealCover) sold policies through a broker (Gallagher). RealCover provided Gallagher with information such as client lists and renewal dates to facilitate that process. The agency arrangement came to an end early in 2015 and RealCover appointed a new broker; however it suffered a sharp decline in its business. It suspected Gallagher may have been using its confidential information to “target” RealCover customers. Gallagher denied this was the case and said that it contacted potential customers on the basis of other (non – confidential) information in its possession. Read the rest of this entry »

Dismissal whilst absent when ill

Posted on May 9th, 2016

by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

Mr Byrne was employed with a mine. He approached his supervisor and requested two days annual leave but was refused. He made a statement to the effect that, despite the refusal, he would obtain a medical certificate and ‘would not’ attend work on the days in question. The manager responded that if Mr Byrne did so, there was likely to be a disciplinary process. Mr Byrne in fact consulted his doctor, was certified as unfit to attend work and did not attend work on the relevant days. There was a subsequent disciplinary process and he was dismissed. His union challenged that dismissal and, at trial, the judge made a positive finding after hearing evidence from the GP that on the days in question Mr Byrne had in fact been ill. The dismissal was nonetheless said to have been valid. That finding was appealed to the Full Court but failed. Read the rest of this entry »

Victorian Royal Commission into Family Violence

Posted on May 9th, 2016

by Rose Laffan

Rose Laffan is a Senior Solicitor at Mullane & Lindsay in Newcastle and practises extensively in Family, Relationship and Matrimonial Law

The Report of the Victorian Royal Commission into Family Violence was tabled in the Victorian Parliament on 30 March 2016.

The Report contains 227 recommendations including:

  • New laws to establish a Central Information Point to funnel information about perpetrators;
  • Support and safety hubs throughout the State;
  • A ‘blitz’ to rehouse women and children who have fled family violence;
  • An immediate funding boost to services that support victims and a dedicated funding stream for preventing family violence – including an investment in respectful relationships education at schools and family violence training in key workforces (such as hospitals and schools);
  • An expanded investigative capacity for police – including a trial of body-worn cameras;
  • More specialist family violence Courts that can deal with the criminal, civil and family law matters at the same time; and
  • An independent Family Violence Agency to review government policy and action.

Read the rest of this entry »

Sham contracting arrangements

Posted on May 9th, 2016

by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

Section 357 of the Fair Work Act prohibit the making of claims that a person is a contractor if they are, in truth an employee. Employers are liable to a civil penalty if they breach the section.

Quest South Perth Holdings Pty Ltd operated a serviced apartment building. It employed housekeepers. It subsequently entered an arrangement with a labour hire business, Contracting Solutions Pty Ltd, to supply housekeepers to it. Quest’s previously employed housekeepers were, in effect, “transferred” to Contracting Solutions and then “hired back” to Quest. They continued to provide fundamentally the same housekeeping services. It was alleged Quest had “represented”, that the housekeepers were independent contractors in breach of s357. Read the rest of this entry »

Contributory negligence in motor accident claims

Posted on April 20th, 2016

by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

In March 2007 Ms Chadwick was rendered paraplegic in a motor accident. She had been a passenger in a vehicle driven by Mr Allen who had a blood alcohol reading of 0.229. It was clear the manner of his driving caused the crash and Ms Chadwick’s injuries. Mr Allen and a friend had been drinking over an extended period of time. In the early hours of the morning Allen, Chadwick and the friend went for the drive looking for cigarettes. Ms Chadwick was initially driving because she had not been drinking as she was pregnant. However during the trip she stopped and left the driver’s seat briefly. When she returned Allen had moved to the driver’s position and refused to vacate it. Chadwick got in and the crash occurred soon after. She was not wearing a seatbelt at the time.

The group was on a driving holiday and the incident occurred on the darkened outskirts of an unfamiliar town. Ms Chadwick gave evidence she was disoriented; thought she was much further from the town than she in fact was and that there was no safe way of returning to the town (where her children were asleep at a motel) except by getting back into the car. Read the rest of this entry »

Hands off my documents! – Confidentiality of third party information in family law matters

Posted on April 20th, 2016

by Ashleigh John

Ashleigh John is a Family Law Accredited Specialist at Mullane & Lindsay in Newcastle and practises extensively in Family, Relationship and Matrimonial Law.

It is common practice in family law matters for a Subpoena to be issued to third parties seeking copies of their notes or personal documents. This creates a conflict between the rights of the third party to confidentiality of their information, and the rights of justice to the litigant.

This issue was recently considered by the Full Court of the Family Court in circumstances where the husband to family law proceedings sought the production by the wife’s mother and brothers of details of the wife’s late father’s estate, including the will and list of assets and liabilities of the estate.

The family argued that the Court could not guarantee that their private information would not be leaked into the public domain as a result of their compliance with the Subpoena. Read the rest of this entry »

Why not cap your warranties?

Posted on April 20th, 2016

by Lachlan Page

Lachlan Page is a Solicitor at Mullane & Lindsay and is part of our Commercial, Property & Estates Law team.

We all know that warranties play a significant part of negotiating sale transactions.

The usual dance involves the Purchaser seeking extensive warranties and the Vendor resisting with the end result somewhere in between.

There are a couple of techniques that may assist a Vendor/Vendor’s Solicitor in negotiating warranties that are not too onerous on the Vendor without derailing the transaction altogether. Read the rest of this entry »

Agency agreements and contractual traps

Posted on April 20th, 2016

by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

Mentmore Pty Ltd wanted to import some goods. It obtained finance from a lender, Moneytech Services Pty Ltd to do so. Moneytech was named as the purchaser of the goods, pending payment by Mentmore. Under specific provisions of The Customs Act an ‘owner’ of goods can appoint a customs agent to act for him. “Owner” is defined to include someone claiming an interest in the goods. Technically, in these circumstances, Moneytech was an ‘owner’; and it appointed Megatop as its customs agent to receive the import. Read the rest of this entry »

Choosing the right words to motivate clients to use you

Posted on April 8th, 2016

by Felicity Wardhaugh

Felicity Wardhaugh is a Special Counsel at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

Elizabeth Stokoe from the University of Loughborough conducted some research into how using the right words on the telephone could motivate the public to engage in mediation.  Her observations are useful for any service marketing to the public.  Her research article is published as: Elisabeth Stokoe, “Overcoming barriers to mediation in intake calls to services: Research-based strategies for mediators”, 2013 (29) (3) Negotiation Journal 289.  A UK marketing guide for mediation practices https://www.gov.uk/government applies the research and makes some practical suggestions.  The study involved transcripts from 200 intake calls to 5 mediation services in the UK.   Read the rest of this entry »

“Off the plan” contracts – Developers rights to rescind under sunset clauses

Posted on April 8th, 2016

By Michael McGrath

Michael McGrath is a Director at Mullane & Lindsay in Newcastle and specialises in our Commercial, Property & Estates Law Team.

As of 2 November 2015, the Conveyancing Amendment (Sunset Clauses) Act 2015 (NSW) came into force and applies to off-the-plan contracts for sale of residential lots and restricts a developer from automatically rescinding an off-the-plan contract under a sunset date clause.

The government had expressed concern that developers were intentionally delaying the registration of plans past the sunset dates provided for in contracts, with the result that they could rescind and resell at higher prices in rising markets. Read the rest of this entry »

Buying a Business? Beware the GST Trap!

Posted on April 8th, 2016

by Lachlan Page

Lachlan Page is a Solicitor at Mullane & Lindsay and is part of our Commercial, Property & Estates Law team.

When purchasing a business in Australia you are usually able to take advantage of a GST exemption under the A New Tax System (Goods and Services Tax) Act 1999 (‘the GST Act‘).

The exemption is known as the ‘sale of a going concern’ exemption. In order to satisfy the sale of a going concern exemption the Purchaser ‘must receive all of the things that are necessary for the continued operation of the enterprise [business].’ Read the rest of this entry »

Have you ever wondered how to help a friend during separation?

Posted on April 8th, 2016

by Rose Laffan

Rose Laffan is a Senior Solicitor at Mullane & Lindsay in Newcastle and practises extensively in Family, Relationship and Matrimonial Law

Most of us know someone who is currently going through a separation or who has gone through one in the past but do you know what to say to them to help them through this often difficult time?

Family law is such a multifaceted jurisdiction that obtaining expert legal advice is a necessity. With the complexities of modern life – with everything from stepfamilies to intricate family trusts – the days of armchair advice may be over. Read the rest of this entry »

Alcohol and dismissal for serious misconduct

Posted on April 8th, 2016

by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

A senior manager was summarily dismissed from employment following a heavy drinking session during (but not as part of) a work conference. He sued for breach of contract. At trial it was held summary dismissal was not warranted. It was also held that the employer could have given notice and terminated his employment on notice, but would not have done so for roughly another 2 years. On that basis he was awarded just under $300,000.00 as damages, being the amount he would have earned prior to being dismissed on notice. The employer appealed both as to whether summary dismissal was justified and on damages. Read the rest of this entry »

Redundancy and alternate employment

Posted on March 30th, 2016

by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

A ‘redundancy’ occurs when an employer no longer requires a given job to be performed by anyone. Generally, in that situation, an entitlement to a redundancy payment arises.  There are some exceptions – one of which is where the employer “obtains other acceptable employment for the employee”.  In that situation the employer can apply to the Fair Work Commission (FWC) to reduce the amount of redundancy pay that would otherwise be required.

The issue was recently considered by the Full Bench of the FWC. A security company, FBIS, lost a contract.  An alternate contractor was appointed.  FBIS took a number of steps to facilitate its employees being engaged by the new contractor and 49 of 53 employees were offered and accepted positions with the new contractor on very similar terms to their previous jobs with FBIS.  FBIS then applied to reduce the amount of redundancy paid to the workers, under Section 120.  It was originally successful, but the decision was reversed on appeal.  The matter then went to the Full Bench.  Read the rest of this entry »

Hunter YoungGun | Kristy Nunn

Posted on March 22nd, 2016

Kristy Nunn is a Director in the Dispute Resolution & Litigation Law group and has been with Mullane & Lindsay since 2004.

She is also a member of the Law Society of New South Wales, the Newcastle Law Society, the Australian Insurance Law Association and the Women Lawyers Association of NSW.

Kristy is motivated by meeting and exceeding client expectations and ensuring her work continues to enhance her professional reputation.

http://hunterheadline.com.au/hunter-younggun/kristy-nunn

Property division and life expectancy

Posted on March 15th, 2016

by Rose Laffan

Rose Laffan is a Senior Solicitor at Mullane & Lindsay in Newcastle and practises extensively in Family, Relationship and Matrimonial Law

In the recent decision of Fontana and Fontana the Full Court of the Family Court considered an appeal where the wife was to receive 56.5% of the assets and 55% of the superannuation. In relation to the non-superannuation assets the trial judge found that the wife had made contributions that equated to 52% but that an adjustment of 4.5% should be made for future needs, bringing the total to 56.5%. Read the rest of this entry »

Traps with electronic signatures

Posted on March 15th, 2016

by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

Late in 2015 the NSW Supreme Court heard a dispute relating to a personal guarantee of a credit account, apparently signed with an electronic signature.

A building company (IDH) had a credit account with a building supplies company (Williams). IDH had an internal system allowing directors to attach signatures electronically to documents. Williams required personal guarantees from directors of building companies such as IDH. The case related to whether one of three directors, a Mr Crocker, had in fact attached his electronic signature to the personal guarantee, or authorised someone else to do so (or whether he had later ‘ratified’ the guarantee, even if he did not initially sign it). Read the rest of this entry »

Does serious misconduct always justify termination?

Posted on March 8th, 2016

by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

Serious safety breaches are often regarded as sufficient justification for immediate termination of employment. The rationale, at least in part, is that employers have obligations for the workplace safety of all workers and that serious safety breaches by one worker, can put all workers at risk.  However this is not automatically the case. Read the rest of this entry »

Can you redact or obscure documents produced on subpoena?

Posted on February 23rd, 2016

by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

The Western Australian Supreme Court recently dealt with a subpoena dispute. The case was about a building contract under which a builder was contractually obliged to insure the structure being built. A storm damaged the structure; and the plaintiff owner alleged that the builder had breached its obligation to arrange adequate insurance, with the result that owner of the structure suffered a loss.

An issue in dispute was whether or not the builder had taken adequate insurance. A subpoena was issued for the builder’s policy document. It was produced by the insurer, both in full and as a partly redacted or obscured document. There was no objection to an inspection of the redacted document but there was an objection to reading the policy document “in full”. The objection was on the basis that the policy contained commercially sensitive and irrelevant (to the dispute) information. Read the rest of this entry »