Costs – who pays when each party has some success

Posted on April 4th, 2018

The Supreme Court recently issued a cost decision that grapples with an issue that occasionally arises once litigation is finalised.  That is, if there are several issues in dispute in the proceeding, and both parties have some measure of success on various issues, who should pay costs?

The usual rule is that ‘costs follow the event’.  That is, the successful litigant usually gets an order that the unsuccessful litigant should pay their costs.  Costs are not intended to be a penalty but rather to recompense the successful litigant for the cost of vindicating their rights.  Where one party is wholly successful, they would ordinarily expect a costs order in their favour.

It is less easy to apply that ‘rule’ where each party has some, but not total, success. Read the rest of this entry »

Jones v Dunkel – the problem of not calling a witness at a hearing

Posted on April 4th, 2018

Most lawyers know the case Jones v Dunkel: in general terms, it is authority for the proposition that if a party does not call a witness who can apparently give evidence about a matter in dispute, the failure to call them allows the Court infer that the evidence of that person would not assist the party. This is one of the reasons why witnesses are often required to give evidence, even though they may not be of particular assistance to a litigant – to avoid an unfavourable inference if they are not called.

A recent Supreme Court decision, dealing with an insurance policy dispute, led to a discussion of the so called “Jones v Dunkel inference”.  The plaintiff made a decision not to call a number of witnesses at trial; and the defendant asked the Court to make a Jones v Dunkel inference. In dealing with that argument, the Court summarised the principles or considerations that are at play in deciding whether such an inference should be drawn. In particular, the Court suggested that it is the person asking for the inference to be drawn (that is, the opponent of the litigant who did not call the witness) who must prove two fundamental things namely:- Read the rest of this entry »

Liability in the absence of a therapeutic relationship

Posted on April 4th, 2018

The NSW Court of Appeal recently found a medical treatment provider was liable for personal injury, even though there was never a therapeutic relationship with the person who was injured.

Briefly, a Mr Mason suffered from psychological illness for which he was taking medication. He was remanded in custody on criminal charges, to Parklea Correctional Centre. It was privately operated by GEO Group under contract with the State Government. The contract required GEO to provide psychological and counselling services to inmates.

When Mr Mason was processed at Parklea, he told employees of GEO about his conditions and medications, but he was not prescribed any replacement drugs nor referred for counselling or other treatment. Days later, he jumped from a high level landing and suffered personal injury. He then sued GEO for those personal injuries. That case settled, but a related claim between GEO and its insurer continued because the insurer contended that its policy did not provide cover unless GEO had actually provided (medical) services. Read the rest of this entry »

Rental car agreements & drink driving

Posted on April 3rd, 2018

It is a common provision in car rental agreements that if the car is damaged as a result of the driver breaching a law in force where the accident occurs, insurance coverage will not be available. The clauses are often drafted to cover a wide range of breaches of the law but that would almost always include an accident that occurs when the driver was “over the limit” for blood alcohol.

One of the features of the Insurance Contracts Act, which governs a number of classes of insurance policies including car rental agreements, is that if there is a “technical” breach of the policy, but that particular breach did not cause the loss or increase the risk of loss, the insurer may not be able to refuse cover. However, that principle only applies where a policy of insurance exists – as Gardam’s case shows, it has no application to a document (such as a rental agreement) that is not an insurance contract. Read the rest of this entry »

Making an unfair dismissal application: what can you expect?

Posted on March 6th, 2018

The Fair Work Commission’s Annual Report for 2016-2017 has provided a number of statistics that shed light on what to expect when making an application to the Fair Work Commission (‘FWC’) for an unfair dismissal remedy.

According to the Annual Report, unfair dismissal applications are the largest category of applications received by the FWC each year, representing more than 40% of the total applications made to the FWC.

The FWC reports that the vast majority (93%) of unfair dismissal matters are either resolved by agreement of the parties through conciliation or withdrawn by the applicant. Only 2% of unfair dismissal applications are finalised by a decision about the merits of the case.  Read the rest of this entry »

Calculating compensation

Posted on March 6th, 2018

If you have been unfairly dismissed and the Fair Work Commission (‘FWC’) considers that reinstatement would be inappropriate, the FWC may make an order for compensation.

Under the Fair Work Act, there is a legislative cap on the amount of compensation that can be ordered. Where compensation is payable, it is capped at the lesser of 6 months’ pay immediately before dismissal or the equivalent of exactly half the current high income threshold. As of 1 July 2017, the unfair dismissal high income threshold was $142,000.00 meaning the maximum compensation that can be awarded is $71,000.00.  Read the rest of this entry »

Unfair dismissal remedies: reinstatement vs compensation

Posted on March 6th, 2018

If an employee has been unfairly dismissed, there are two potential remedies that may be ordered by the Fair Work Commission (‘FWC’): reinstatement and compensation.

Reinstatement is the primary remedy for unfair dismissals. According to section 391 of the Fair Work Act, an order by the FWC for reinstatement should relate to the position that the person occupied immediately prior to their dismissal, or an alternative position on terms which are no less favourable than the previous position. In circumstances where the position no longer exists with the employer, an order for reinstatement may be made to an equivalent position within an associated entity of the employer. Read the rest of this entry »

Is your resignation legally effective?

Posted on March 6th, 2018

If you have resigned, in certain circumstances it is possible that you may have unfair dismissal remedies available to you.

A resignation is not legally effective if expressed “in the heat of the moment” or when an employee is in a state of emotional stress or mental confusion such that they could not reasonably be understood to be conveying a real intention to resign.

If an employer accepts a resignation made “in the heat of the moment” the resignation may be characterised as termination of employment at the initiative of the employer and could result in the employee having unfair dismissal rights, allowing the employee to be reinstated or compensated. If a resignation is made “in the heat of the moment”, the employer should clarify or confirm with the employee after a reasonable time that the employee genuinely intended to resign.  Read the rest of this entry »

An Uber win in the Fair Work Commission

Posted on March 6th, 2018

The Fair Work Commission (“FWC”) has recently handed down a decision, Kaseris v Raiser Pacific V.O.F [2017] FWC 6610, finding that Uber drivers are independent contractors and not employees of Uber.

The applicant was an Uber driver and brought this case to the FWC seeking a remedy for unfair dismissal, after Uber terminated a Service Agreement that the parties had entered. For a finding of unfair dismissal to be made, it was necessary that the driver be an employee of Uber.

The FWC examined the relationship between the parties to determine whether the driver was an independent contractor or an employee. There is no single or decisive criteria to determine whether a contractual relationship is of employment or a contract for service. The court will consider a multitude of factors when approaching this question.  Read the rest of this entry »

What do the new privacy laws mean for you?

Posted on February 23rd, 2018

As of yesterday, 22 February 2018, new mandatory data breach legislation has taken effect. This means that certain types of data breaches, known as eligible data breaches, under the Australian Privacy Principles (“APPs”) have mandatory reporting obligations.

The APPs have now been in effect for almost four years. When they first came into effect, many organisations were caught off guard in terms of new requirements, including the need to have a privacy policy in place. The obligations under the APPs have now been extended even further.

The APPs contain certain obligations in relation to personal information and its use, disclosure and protection. These principles apply to a significant number of organisations, known as APP entities, including government bodies and private organisations with a turnover of more than $3 million. Read the rest of this entry »

Seeing a parent or a social event: which one prevails?

Posted on February 21st, 2018

As children get older their priorities change, and friends and social groups become increasingly significant to them. This creates a tension between the importance of socialising children and the importance of children spending time with their parents – particularly the parent with whom they do not live.

The Family Law Act obligates a parent to do all they can to encourage children to attend with the other parent pursuant to Orders. Read the rest of this entry »

Straight up or the Sphinx: when Judges speak up

Posted on February 19th, 2018

In family law matters, judges often provide preliminary views and encourage parties to contemplate settlement.  A judge might make comments that appear to favour one of the parties over the other, or that appear to indicate a pre-judgment of an issue in dispute before the presentation of evidence.

In the case of Darley & Darley [2016], the mother sought to set aside Court Orders on the basis that she had agreed to Orders by consent because the judge had placed undue duress and influence on the parties to settle, by highlighting the benefits to each of them of reaching their own agreement. Read the rest of this entry »

You agree to end the litigation… but is it really over?

Posted on February 15th, 2018

Most family law matters resolve by agreement.  Former spouses/partners realise that there is much to be gained from ‘determining their own destiny’ instead of leaving such major decisions as parenting arrangements for their children, or division of their assets to a Judge; someone who does not know them or their children.

However, once the Terms of Settlement are signed, and the Judge formally makes the Order, is that the end?  Usually – yes.  Always – no.  Read the rest of this entry »

Who’s liable for unsafe rental premises?

Posted on January 11th, 2018

The N.S.W. Court of Appeal recently considered the respective liabilities of a landlord, managing agent and tenant arising out of the collapse of a balcony at a rental property at Collaroy, on the Northern Beaches of Sydney (Libra Collaroy Pty Limited v Bhide).

In 2005, the landlord engaged a real estate agent to manage their residential rental property pursuant to a Management Agreement. During the tenancy, the tenant raised numerous issues concerning the state of repair of the upstairs balcony. The managing agent obtained quotes for repairs and forwarded these to the landlord however these were not acted on.

In 2012, the balcony collapsed injuring 4 people, including the tenant’s daughter. The 4 injured persons commenced proceedings against the landlord and the managing agent for their injuries and the tenant also commenced proceedings against the landlord and the managing agent for psychological injury. The landlord and managing agent issued cross claims against each other and also against the tenant. Read the rest of this entry »

Buying or selling an RTO?

Posted on January 10th, 2018

If you are buying or selling a Registered Training Organisation (“RTO“) it is very important you engage a competent solicitor who has experience in dealing with RTOs.

In addition to dealing with the usual sale of business considerations, including without limitation:

  • Stock,
  • Goodwill,
  • Plant & Equipment (including discharging securities),
  • Restraints,
  • Employees,
  • Leases/Licence Agreements/Supplier Agreements/Franchise Agreements, and
  • Intellectual Property;

The sale or purchase of an RTO must also deal with the government department known as the Australian Skill Quality Authority (“ASQA”).  Read the rest of this entry »

Naming your small business start-up – what to consider

Posted on January 10th, 2018


One of the first things to do for your small business start-up is choosing a name. It is also one of the most exciting! It is a creative opportunity to come up with the name that will identify your business going forward and build your successful empire (hopefully)!

 However, there are some unexciting legal considerations that should also be addressed during this process. The main one is to ensure that you are not going to infringe on anyone else’s intellectual property rights when settling on your name or be accused of trying to pass off as another business with a similar name. There are some administrative headaches that can also be avoided if you put some effort into identifying the current marketplace before settling on a name.  Read the rest of this entry »

Elder abuse – a push to keep our elderly safe

Posted on January 9th, 2018

Elder abuse is an area which is becoming of greater concern to Australian society. With an aging population and increased wealth being held by the elderly, it is an unfortunate reality that elder abuse is becoming more and more common.

Elder abuse is defined as ‘a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person’.

Elder abuse can take various forms, including:

  • physical abuse
  • psychological or emotional abuse
  • sexual abuse
  • financial abuse
  • neglect

Read the rest of this entry »

Feuding over the funeral – who has the say?

Posted on January 8th, 2018

They say death brings out the worst in people. It follows that the funeral arrangements are probably the first opportunity where disputes can erupt.

So who has the final say when it comes to your funeral arrangements?

If you die with a will, the answer is your executor. The executor appointed under your will has the right to the custody and possession of your body for the purpose of burial and is responsible for the burial. These rules date back to 1882. If you have included wishes regarding your funeral in your will, they are not binding on your executor. If however you have left a written direction that you are not to be cremated, this is binding on your executor.  Read the rest of this entry »

If I leave him something, can he still contest my will?

Posted on January 8th, 2018

The changing nature of families over recent years has presented a new concern for people in attempting to leave their estate to those they wish. With an ever increasing number of blended families and more and more competing interests of family members who may not have a close relationship with each other, people are finding it difficult to have their testamentary intentions become a reality.

A family provision claim is where someone claims they should have been left more of a deceased person’s estate than what they were left. There are only certain classes of people who are eligible to make a family provision claim, however the law has evolved over time to broaden the types of eligible persons.  Read the rest of this entry »

Thinking of amending your will by hand? Think again

Posted on January 8th, 2018

Your will is an extremely important document and governs what happens to your assets upon your death. Estate planning, and particularly drafting and interpreting wills, is a complex area of law. Although this is so, people commonly think it is straight forward.

You have spent a lifetime accumulating your wealth and the transferring of that wealth to the next generation is not necessarily a simple task. Even in situations where there is a simple family structure and relatively straight forward assets, we often see problems created by self-drafted or self-amended wills.

Obtaining legal advice regarding how best to transfer your assets upon your death and having your will professionally drafted is of great importance. For those who have gone to the effort and expense of doing so in the past, it can be tempting to make small changes to the will by hand afterward. There are however numerous rules which govern whether a will is validly amended and it is often the case that these rules are not followed when people amend their wills themselves.   Read the rest of this entry »