WORKS OF ART: Not an artistic free-for-all

Published by Law Society of New South Wales

In an industry where references to other fashion looks is rife, the courts have upheld an appeal by a company that another had copied its T-shirt designs.

Initially, a judge found that the second company had created a different design by making changes to the colours and numbers in the original.

However, on appeal the courts found that the ideas and concepts of a design had to be taken into account and that the company had reproduced a substantial part of the original.

Read the rest of this entry »

CLASS ACTIONS: Things to know

Published by Law Society of New South Wales

In the current economic climate it is not surprising that investor class actions are receiving increased attention.

There is some suspicion and confusion about class actions. Some people have an enduring belief that they must be taking on an unacceptable level of risk if they get involved. Equally, some may just have an aversion to continuing in a claim commenced without their express consent, despite the fact that it could benefit them financially to do so.

Read the rest of this entry »

SEAL THE DEAL: Signing contract documents legally in the e-age

Published by Law Society of New South Wales

Often, not enough attention is given to the procedure for executing contractual documentation when finalising an agreement. This is increasingly an issue as the number of parties involved in transactions increase, parties often do not execute contracts in the same physical location, and frequently parties are required to execute signature pages and return them by email.

In a recent court case a tax consultancy operated a taxavoidance scheme for some of its clients. The revenue authorities suspected that the scheme had been dishonestly implemented and sought warrants to search for  documents at a number of client premises.

Read the rest of this entry »

Landholder Duty: Tax base expands

Published by Law Society of New South Wales

New state revenue laws create a new model for imposing duty on land.

Since 1987, NSW has had a tax system which imposes duty on the acquisition of interests in private companies and unit trusts that hold land in NSW.

Prior to 1 July, the rules applied where a “relevant acquisition” was made of a “land-rich” landholder. A private company or trust was considered land-rich if 60 per cent or more of its total assets comprised land or interests in land in all places, and $2 million worth of it or more, needed to be in NSW.

Under the new system, provided the entity holds land worth $2 million or more in NSW, it is irrelevant what proportion of its value is in land.

This expands the tax base to acquisitions of many non landfocused entities, such as in the manufacturing and service sectors. Duty at a top rate of 5.5 per cent must now be calculated not only on the unencumbered value of NSW land, but goods in NSW held by the entity as well.

Read the rest of this entry »

The importance in evidence of usual practices

By TONY CAVANAGH

Tony Cavanagh is a principal at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.

It is unfortunately the case that in many professional negligence claims, including claims against solicitors, the usual practice of the professional often looms large in determining whether there may have been a breach of retainer or of duty. This is generally because the professional’s file does not contain any, or any adequate, written evidence of the advice given or steps taken which the professional is contending amounted to discharge of the term of retainer or of the duty.

Two relatively recent decisions illustrate how the courts can deal with usual-practice evidence. They show that having a usual practice is not as good as being able to demonstrate that specific advice was actually given, but that, in at least some routine situations, having a usual practice, and being able to establish that practice by objective means, can be very important to a defence.

Elayoubi v Zipser

In Elayoubi v Zipser [2008] NSW CA 335 the court was dealing with a medical negligence claim. An infant suffered oxygen deprivation during birth, resulting in spastic quadriplegia and intellectual disability. The plaintiff’s tutor claimed against both the hospital at which the mother’s previous child had been born (for failure to warn of the consequences of having a further vaginal birth) and against the hospital at which the relevant birth actually occurred.

Read the rest of this entry »

Industrial Relations Reforms - The Workplace Relations Bill

The area of workplace relations and employment law is set to experience some important changes if the Rudd government’s Workplace Relations Bill becomes law as anticipated from 1 July 2009. Much will depend on the final “shape” of the new legislation, but it is presently anticipated some of the changes will include the following:

• At present, there is no right to claim unfair dismissal under Federal law if the employer has 100 or more employees. The Bill proposes to restore unfair dismissal rights to all employees who are subject to Federal law.
• If the employer has 15 or less employees, the Bill proposes that an unfair dismissal claim can be made if the dismissed worker had been employed for 12 months or more. If the employer has more than 15 employees, the relevant period will only be 6 months.
• Under the present law, even employers with more than 100 workers could generally oppose unfair dismissal claims on the basis that the dismissal was for “genuine operational reasons”. The new law is expected to still include a “genuine operational reasons” defence; but the Bill proposes that the criteria will change. This may become particularly relevant if employment is terminated due to redundancy - the fairness of the redundancy process is likely to be one of the factors forming part of the “genuine operational reasons” test.

Read the rest of this entry »

Family Relationship Services

The Federal Government has announced that it will invest more than $100 million over the next two years to assist families deal with relationship difficulties.

The funding will support early intervention services including counselling, skills training and mediation, as well as post-separation services including family and couples counselling, specialised family violence services, dispute mediation and parenting support. These services will be delivered through 60 Early Intervention Services, 40 Family Relationship Centres and 30 Post Separation Services around Australia.

The Newcastle Family Law Team at Mullane & Lindsay is well positioned and trained to assist families on the breakdown of their relationships:

• The Honourable Graham Mullane, a former Judge of the Family Court is a consultant to the firm. 
• Mark Sullivan and Vivien Carty are Law Society Accredited Specialists in Family Law and between them have more than 50 years experience acting for clients in family law related matters. 
• Mark Sullivan is on the Family Law Section of the Law Council’s Country Committee. 
• Vivien Carty is on the panel of Independent Children Lawyers and acts in this capacity in the most intractable of residence and contact cases. 
• Ashleigh John is a committee member of the Hunter Valley Family Law Practitioners Association and a committee member to the Newcastle Gateways Project which co-ordinates family relationship services and organisations in the greater Newcastle region.
• Kristy Davis has practised in the area of family law for more than 5 years.

 If you have a problem and require the assistance of an experienced and caring family and relationship lawyer we can assist you. We are available for consultations at our Tea Gardens office each Monday, Wednesday (by appointment with a family lawyer) and Friday between 2:00 pm and 5:00 pm at 191 Myall Street Tea Gardens or at our Newcastle office at any other time during business hours (T: 4928 7300).

Risks for Employers in Contracting Relationships

Over the last 10 - 15 years, many employers took steps to get employees “off the books” by engaging labour through contractor relationships rather than employment relationships. In at least some cases, employers “converted” employees into contractors. In the transport industry for example, many employed truck drivers were required to establish their own company and obtain their own insurances; and then contract back to the “employer” to provide essentially the same services as when they were employees.

Employers who may wish to adopt similar practices today may be liable to prosecution. The Workplace Relations Act (1996) (Clth) was amended with effect from 1 March 2007 to incorporate provisions relating to “sham” contracting arrangements.

The new provisions are relatively complex, and cannot be dealt with in detail in an article of this nature. Employers should however be aware, in general terms, that they are liable to prosecution if they enter a sham contracting arrangement and that the new provision is drafted in such a way that the employer has the onus of proving they were not in breach of the new law (rather than the traditional position, in which a prosecutor bears the onus of proving that an offence occurred).

The penalties for breach of the new provision are up to $33,000.00 where the employer is a company, so the exposure of employers could be substantial - particularly in the case of a major workplace restructuring that affects a number of workers.

Read the rest of this entry »

The Duty of Banks to Protect Borrowers

It is not widely understood that although banks and other lenders are entitled to advance their own commercial interests in making loans; they also have obligations to borrowers which, if breached, might result in a loan agreement being declared void.

A recent NSW Supreme Court case of Satchithanantham illustrates one aspect of the duty owed to borrowers.

The case was factually complex but, in essence, the borrower, Mrs S, was prevailed upon by her (bankrupt) husband to take out a loan, secured by mortgage on the family home. The Court held that when the loan application was signed, the bank officer involved did not make adequate enquiry about the stated purpose of the loan or as to Mrs S’s capacity to repay the loan.

As it happened, the Court also held that Mrs S had been deceived (by her husband) into believing the loan was an ‘ordinary’ home loan for a specific amount - in fact it was a line of credit for a substantially greater amount and which could be cancelled at any time whether or not repayments were in default.

Read the rest of this entry »

Removal of same sex discrimation federally

The Federal Attorney General has announced that legislation to remove same-sex discrimination from a wide range of Commonwealth laws will be introduced in the Winter Sittings of Parliament. This reform follows the report of HREOC, Same-Sex: Same Entitlements, which focused on financial and work-related legislation.

Areas where discrimination will be removed include:

• Tax
• Superannuation
• Social security
• Health
• Aged care
• Veterans’ entitlements
• Workers’ compensation
• Employment entitlements
• Other areas of Commonwealth administration

The Government has begun introducing legislation in the Winter Sittings of Parliament. In areas such as social security, tax and veterans’ affairs, the reforms are expected to be phased in - to allow time for couples to adjust their finances, and for administrative arrangements to be implemented.

All of the changes are expected to be implemented by mid-2009.

If you have any queries relating to Family or Relationships law please do not hesitate to contact any of our Family and Relationships Law Team at Mullane and Lindsay: Mark Sullivan, Vivien Carty, Kristy Davis and Ashleigh John. Kristy Davis is present at our Tea Gardens office on Wednesday afternoons by appointment. (Tel: 4928 7300).