Is your website a ‘business record’?
Most of us understand, at least generally, that for material to be considered by a trial judge in the course of a hearing it must comply with the ‘rules of evidence’. Both under the common law and under both the NSW and Commonwealth Evidence Acts, one class of material that can generally be given in evidence is ‘business records’. The broad theory behind this is that businesses will generally maintain accurate records of how they have been conducted (for example as to who their customers are, what revenues they generate, how they carry out production etc) and that their historical records are therefore generally reliable material for the purpose of a court making decisions.
However when the ‘record’ is in the nature of advertising or promotional material, while it is certainly a document created by a business, the courts tend to be much more cautious as to whether these are ‘business records’ in the relevant sense. The distinction seems to be whether documents are records of a business; or the product of it. Consequently in recent times the courts have rejected attempts to tender, as business records, both corporate magazines (Australian Competition and Consumer Commission v Air New Zealand Limited (No. 5) [2012] FCA 1479 and extracts from a company’s web page (Clipsal Australia Pty Limited v Clipso Electrical Pty Limited (No. 43) [2017] FCA 60). Read the rest of this entry »
The sheriff is knocking; but the appeal has not been heard
In the Australian Court system, unsuccessful litigants generally have some right appeal. It is not well understood that the mere fact of lodging an appeal does not automatically prevent enforcement of the underlying judgment. So, what happens if a judgment is entered against you and you lodge an appeal but in the interim, the successful litigant tries to enforce the debt? 
In NB2 Pty Ltd v PT Limited [2017] NSWCA 257, just such a situation was considered. The case related to the lease of a “fruit and veggie” shop in a Westfield complex. The tenant, NB2, claimed it had been misled into entering a lease (which it could not pay rent competing business also set up in the shopping centre). That argument had failed and judgment had been entered both against NB2 and its director/guarantor for just less than $4,000,000.00. An appeal was lodged but in the interim, the successful litigant issued winding up notices against NB2, and bankruptcy notices against the guarantors. Read the rest of this entry »
Legal practitioners acting against previous clients
In what circumstances is a lawyer permitted to act against a previous client? The Supreme Court of New South Wales recently addressed this matter in Gujarat NRE India Pty Ltd v Wollongong Coal Limited [2017] NSWSC 209. 
The proceedings were conducted by way of a compressed urgent hearing which was held shortly before the main proceedings. The main proceedings were between Gujarat NRE India Pty Ltd (“NRE“) and Wollongong Coal Limited (“Wollongong Coal“). NRE was suing Wollongong Coal for damages suffered by NRE as a result of a default by Wollongong Coal under a commercial agreement for which NRE had guaranteed the obligations of Wollongong Coal.
The commercial agreement was called the Override Deed and enter into July 2013. The Override Deed required Wollongong Coal to pay $20,411,033.00 to a third party, UIL (Singapore) Pty Ltd. Wollongong Coal defaulted under the Override Deed and NRE was required to pay the balance in full to UIL. Read the rest of this entry »
Claiming your costs in the fair work commission
Section 611(1) of the Fair Work Act 2009 (FWA) sets out that the general rule for proceedings in the Fair Work Commission (FWC) is that 
parties must bear their own costs. Section 611(2) provides an exception to this rule which applies if the FWC is satisfied that a party to the proceedings acted vexatiously or without reasonable cause or that it should have been reasonably apparent the application or response had no reasonable prospects of success, costs can be awarded.
Acting Vexatiously
The FWC has said that an application is vexatious when the predominant motive or purpose of the application is to harass or embarrass the other party to gain collateral advantage.
Without Reasonable Cause
An application is made without reasonable cause if it can be characterised as so obviously untenable that it cannot possibly succeed or is manifestly groundless. Whether an application is made without reasonable cause may be tested by asking whether, on the facts apparent to the applicant at the time the application was made, there was no substantial prospects of success. An application is not made without reasonable cause simply because the application did not succeed. If success depends upon the resolution or one or more arguable points of law, the proceedings will not be characterised as being without reasonable cause. Read the rest of this entry »
Carer’s leave: what are your rights and responsibilities?
Munro v Wilmar Australia Pty Ltd [2017] FWC 2493 is a recent decision of the Fair Work Commission (FWC) which provides guidance to employees and employers about what an employee is permitted to do while taking a period of paid carers leave. 
Specifically, the FWC considered whether an employee would be permitted to work in their own business during a period of paid carer’s leave taken in the employee’s primary employment to care for a family member.
The FWC considered that the nature of carer’s leave is different to sick leave where it is the worker who is incapacitated from performing duties. Read the rest of this entry »
On the 13th day of Christmas: your guide to boxing day trade
In 2015, the Retail Trading Act 2008 was amended to permit state wide trading on Boxing Day in 2015 and 2016. The 2015 amendments 
allowed all shops and bank branches to open on Boxing Day on the condition that staff freely elected to work without being coerced, harassed, threatened or intimidated to do so.
The 2015 amendments were required to be reviewed in 2017 to see whether Boxing Day trade should continue beyond 2016. A review of the legislation was conducted earlier this year in consultation with major retailers, their representative organisations, unions and other industry stakeholders to ascertain their experience of Boxing Day trading in 2015 and 2016. Read the rest of this entry »
Working multiple jobs: what are your obligations to your employers
Munro v Wilmar Australia Pty Ltd [2017] FWC 2493 is a recent decision of the Fair Work Commission, which has held that where an employee fails to provide details of their additional employment to their employer, it may constitute a valid reason for dismissal. 
Specifically, the case involved an employee (Munro), who was conducting his own business alongside his ordinary employment. The employer (Wilmar) was concerned that the amount of hours being worked in total by Munro might be a risk to both his health and safety and to his co-workers. Read the rest of this entry »
Attorney-General announces review into family law system
The Attorney-General has commissioned the Australian Law Reform Commission (ALRC) to conduct a review of the Australian family law system; the first comprehensive since the commencement of the Family Law Act in 1975. 
Some of the matters that the Government has asked be reviewed include whether reforms are needed for:
- Families with complex needs, including where there is family violence, drug or alcohol addiction or serious mental illness;
- Collaboration, coordination and integration between the family law system and other Commonwealth, state and territory systems, including family support services and family violence and child protection systems;
- Improving the clarity and accessibility of the law.