Compensation for Distressing Holidays (the Appeal)

Posted on March 21st, 2019

Some time ago I published an article about the case of Moore v Scenic Tours which involved a disappointed consumer taking proceedings against a cruise boat operator for compensation when the company did not ‘deliver’ the holiday experience it advertised (due to serious flooding on various rivers in Europe).  One of the unusual features of the case was that the claim was brought only under the Consumer Guarantee provisions of the Australian Consumer Law (‘ACL’), and not in contract.  The plaintiff was successful and, amongst other things, was awarded compensation for distress and disappointment at not receiving the holiday ‘experience’.

Scenic appealed and the NSW Court of Appeal has recently delivered a very lengthy judgment.  It is well beyond the scope of an article like this to cover all of it but, relevantly, it reversed the trial Judge’s decision to award damages for distress and disappointment. Read the rest of this entry »

Elder abuse -lack of contact with family

Posted on March 13th, 2019

In NAD [2018] NSWCATGD 1 (a case involving the NSW Civil and Administrative Tribunal) an elderly mother diagnosed with dementia was taken to live with her son.  One of the mother’s daughters complained that as a result of this move, she was denied the ability to see her mother.  She complained that her brother had no landline at his home and if she rang to speak to her mother, she was denied telephone access.  Read the rest of this entry »

New statistics on marriage and divorce

Posted on February 28th, 2019

We are all touched in some way by relationships, starting and ending.  On 27 November 2018 the released the following statistics, which are of interest:

  • A total of 3,149 same-sex weddings were held in Australia between 9 December 2017, when amendments to the Marriage Act 1961 came into effect, and 30 June 2018.
  • The median age at marriage for male same-sex couples as at 30 June 2018 was 48.5 years of age, compared to 39.0 years of age for female same-sex couples.
  • There were 112,954 marriages registered in Australia in 2017, a 4.7% (5,447) decrease on marriages registered in 2016.  Whilst the number of registered marriages has slowly declined over time, the number of de facto relationships voluntarily registered is growing on an annual basis. There were 14,626 relationships registered in 2017, over double the number registered only 5 years ago in 2013 (7,281).  It is not possible to register de facto relationships in Northern Territory or Western Australia.

Read the rest of this entry »

Communicating Dismissals to your employees

Posted on February 27th, 2019

It is no surprise that emails, text messages and other communication apps are prevalent in most workplaces. Recent decisions of the Fair Work Commission have found that when it comes to communicating a dismissal with an employee, it is best practice to do so in person rather than by email or any other method of communication.

In Knutson v Chesson Pty Ltd [2018] FWC 2080, Commissioner Cambridge commented that the advice of termination of employment is a matter of such significance that basic human dignity requires the dismissal be conveyed personally with arrangements for the presence of a support person and documentary confirmation. He noted that unless there is some genuine apprehension of physical violence or geographical impediment, the message of dismissal should always be conveyed face to face. Read the rest of this entry »

Alert for Agents and Landlords of Residential Tenants in NSW

Posted on February 12th, 2019

All landlords and agents of residential tenancies should be aware that the Residential Tenancies Act 2010 (NSW) will be amended effective from 28 February 2019 to enable tenants to escape circumstances of domestic violence.

Tenants will be able to end their tenancy immediately and without penalty in circumstances of domestic violence. A tenant will also not be liable for any property damage to a property caused by the domestic violence. Read the rest of this entry »

Insurance Policies and Claims for Damages

Posted on February 12th, 2019

CLower than Expected Service Leads to Compensationonsider this scenario:  a self-employed carpenter earns $1,000 per week.  He has income protection insurance, mainly in case he suffers a work injury.  He is injured when, whilst visiting friends, a balcony he was standing on collapses and he falls to the ground.  He is off work for 12 months.  He brings a claim against the property owners for damages for lost income.

In that situation, has the carpenter suffered any loss?  He has not been able to work, but he happens to have income protection insurance which pays him his $1,000 per week. He is, on the face of it, no worse off. Read the rest of this entry »

Am I in a de facto relationship? Part 2

Posted on January 31st, 2019

Section 4AA(2) of the Family Law Act lists factors to be considered in the determination of whether or not a couple are or have been living together on a genuine domestic basis. These factors can be any, or all, of the following:

  • the duration of the relationship
  • the nature and extent of their common residence
  • whether a sexual relationship exists
  • the degree of financial dependence or interdependence, and any arrangements for financial support between them
  • the ownership, use and acquisition of their property
  • the degree of mutual commitment to a shared life
  • whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship
  • the care and support of children
  • the reputation and public aspects of the relationship.

Read the rest of this entry »

Can a retaining wall be a dividing fence?

Posted on January 22nd, 2019

Can a Retaining Wall be a Dividing Fence?Nham & anor v Hayes & anor [2018] NSWCATCD 17

NCAT looked at several issues in this Dividing Fences application, the most interesting one involved retaining walls.

In short, the applicants had served a Fencing Notice under section 11 of the Dividing Fences Act 1991 (NSW) (the Act), which was not agreed to by the neighbours. At the same time the respondents began an action in the Supreme Court of New South Wales substantially in negligence and trespass. Read the rest of this entry »

What a difference a (leap) year makes

Posted on January 16th, 2019

What a difference a (leap) year makesWe have all heard jokes about people born on 29 February in a leap year, claiming to be younger than they really are because technically they only have a birthday every 4 years. However the ACT Supreme Court has had to grapple with the implications of a leap year birthday in somewhat different circumstances.

The plaintiff in the proceedings was born on 29 February 2000. She was charged with committing criminal offences on 28 February 2018. Depending on whether the plaintiff was an adult or a child on the date of the offences, she would be dealt with either as an adult or in a Children’s Court.

A Magistrate in the Children’s Court had decided the plaintiff was an adult and that the case must be sent to the Magistrate’s Court (the equivalent of the NSW Local Court) where the plaintiff would be dealt with as an adult. The plaintiff appealed that decision to the Supreme Court. Read the rest of this entry »

Charity in Wills – Don’t waste the gift

Posted on January 15th, 2019

What executors need to knowWills are ambulatory. The circumstances existing on the death of the will-maker apply.  This poses difficulties since most people cannot help but write Wills with “today” in mind.

A recent case in the Supreme Court involved legal effort and expense when circumstances changed even in a situation when the will-maker had tried to accommodate the possibility of change. Read the rest of this entry »

Things to tell your Family Law lawyer in the first consultation

Posted on August 29th, 2018

Top 8 things to tell your Family Law lawyer in the first consultationI understand that no one likes to air their dirty laundry to a lawyer they have just met. But, in the context of Family Law there are three important things to bear in mind:

  • You cannot change your past. It is important to be honest about the past if it is relevant to the outcome;
  • If I am going to provide you with sound legal advice, it is vitally important that I know about all the skeletons hidden away in your closet. This is especially true in Family Law, when every seemingly forgotten fact from your past could be important in determining the matter – or in a bad case, could be used by the other side to build a case against you; and
  • I take the duty of confidentiality that I owe you very seriously. Without your express consent I cannot reveal the information you to tell me.

Read the rest of this entry »

Can lease obligations operate ‘prior’ to the commencement date of the Lease?

Posted on June 25th, 2018

Can lease obligations operate 'prior' to the commencement date of the Lease?Will a Court enforce provisions of a lease against a party in respect of a period of time prior to the commencement date of the lease? This was one of the questions raised in Bonafair Holdings Pty Ltd v Hungry Jacks Pty Ltd.

His Honour, Sackville AJA, concluded that the language used by the parties in the relevant clauses will be determinative on the issue. “It is of course possible for a lease to contain provisions attaching consequences to events or conduct pre-dating commencement of the lease… However, in the absence of any language evincing a contrary intention, provisions in a lease for a term of years ordinarily create rights and obligations between the lessor and the lessee as and from the date the term of the lease commences“. Read the rest of this entry »

Directors’ liability for legal costs

Posted on June 25th, 2018

A cautionary tale for directors who might think they can hide behind a “corporate veil” and avoid personal exposure.  Parties to a complicated dispute settled the dispute and entered into consent orders.   Subsequently, an application was made against one plaintiff company to enforce the consent orders.  The company had failed to execute all necessary documents.  When the plaintiff company continued to fail to comply, the Supreme Court (Tasmania) made an order under section 169 Supreme Court Civil Procedure Act 1932 (Tas) empowering the Registrar of the Court to execute the documents instead.  The Defendant then sought a costs order for the cost of enforcing the orders.  Read the rest of this entry »

Representing the interests of non-unionised workers

Posted on December 14th, 2017

On 13 December 2017 the High Court delivered a decision in a case of Regional Express Holdings Limited v Australian Federation of Air Pilots [2017] HCA55.

The central issue in dispute was whether an industrial association (such as a union, or other representative body) was entitled to represent workers who were not members of the industrial organisation.

The short facts were that Regional Express (REX) had written to a number of its pilots to the effect that if they made claims for accommodation costs during layovers, they would not be given command roles.  The Australian Federation of Air Pilots (AFAP), a representative body for commercial pilots, commenced proceedings alleging REX’s letter contravened a number of workplace rights.  None of the individuals to whom REX had written, were actually members of AFAP.  REX applied to summarily dismiss the proceedings on the basis that AFAP was not “entitled to represent the industrial interests of” individuals who were not members of its organisation. Read the rest of this entry »

Don’t drink and dial…

Posted on December 14th, 2017

The Christmas and New Year period is a time when spirits are high, drinks are flowing and the consequences of actions are not always considered. Even the simple action of making a phone call or sending a text message can have serious consequences.

It is a criminal offence under Australian law to use a mobile telephone in a way that is menacing, harassing or offensive. This can include the method of use, the content of the communication, or both. Repeated, unwanted calls can amount to harassment under this law.  Read the rest of this entry »

National Domestic Violence Scheme commences

Posted on November 29th, 2017

Each State and Territory has passed model amendments to existing domestic violence legislation to enable the consistent recognition of  interstate orders. The terminology and laws remain unique to each jurisdiction, as do the conditions in the orders.  The key elements of the Scheme include:

  • A domestic violence order (DVO) made in any Australian State or Territory on or after 25 November 2017, is automatically recognised and enforceable in each other State and Territory. They include final and interim orders.
  • Applications to vary a nationally recognised order can be made in any State or Territory.  Read the rest of this entry »

Urgent applications, preservation orders and third party rights

Posted on November 1st, 2017

Many courts in Australia have processes that allow applications to be made before any formal litigation is commenced.  In the Federal Court, one form of ‘pre-litigation’ application that can be made, relates to the preservation of property or information that may be relevant to a later, substantive, claim. 

A recent example was where a software designer suspected a former employee had taken, and was using, its confidential information for the benefit of a direct competitor.  It sought orders for access to the ex-employee’s computers and other electronic devices for the purposes of copying their contents in order to preserve information that may be relevant to a future substantive claim. Read the rest of this entry »

The sheriff is knocking; but the appeal has not been heard

Posted on October 25th, 2017

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 »

Carer’s leave: what are your rights and responsibilities?

Posted on October 13th, 2017

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 »

Attorney-General announces review into family law system

Posted on October 10th, 2017

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.

Read the rest of this entry »