A successful lawyer has to become an expert in negotiation. We thought it was unfair to keep this knowledge to ourselves, so we’ve compiled a handy list of negotiation techniques into SOAP. A good lawyer uses SOAP every day, which is why people think we’re slippery. ...
Selling A Business in Queensland - What your Brisbane Business Lawyer Does
When selling your business there are many legal factors to consider, and if you are considering selling your business you should seek advice and guidance from a business lawyer well in advance. A Brisbane based business lawyer will have intimate knowledge of how businesses are valued, and the skillset and expertise to prepare the necessary documentation. ...
The Queensland Law Society has issued a warning against do-it-yourself will kits:
“A large percentage of Australians believe that filling out a will kit from their local news agency or downloaded from the internet, will cover them when they pass away. Decades ago that might have been true. But in a modern complex technological world, it is not. ...
Crooks, watch out! From 12 November 2016, there will be some important new amendments to the Australian Consumer Law and the ASIC Act.
These amendments will expand consumer protections to business owners. Starting in November, small businesses will be protected against ‘unfair’ provisions in contracts.
When Will the New Rules Apply?
There’s a few exceptions, but essentially, the amendments will apply where:
- the contract is for the supply of goods or services, or the sale or grant of an interest in land;
- at least one party to the contract is a small business at the time the contract is entered into;
- the upfront price of the contract is $300,000 or less - or $1 million or less if the length of the contract lasts for more than 12 months;
- the contract is a standard form contract; and
- the contract is entered into, renewed or varied after 12 November 2016.
The amendments will also apply to contracts for financial services, as well as financial products regulated under the ASIC Act (loans, finance contracts and other credit contracts). For these contract types, interest payable under the contract is not included in the calculation of the upfront price.
What's a Small Business?
A small business is defined as a business with fewer than 20 employees. This is measured by headcount including part-time and casual employees engaged on a 'regular and systemic basis'.
What's a Standard Contract?
A standard contract is an agreement where the terms and conditions are set by one party, with limited opportunities for the other to negotiate. A good example of this is your telephone contract. Normally, the contract is offered on a "take it or leave it" basis. (Actually, for phone ...
PERFECTING YOUR SECURITY INTERESTS, DON'T WAIT UNTIL IT'S TOO LATE
On 29 May 2014, Rouse Lawyers successfully represented 123 Sweden AB, a foreign Swedish corporation, in its Supreme Court (NSW) application under s 588FM of the Corporations Act 2001 (Cth), for an order fixing a later date for registering and perfecting 123 Sweden’s security interest on the Personal Property Securities Register (PPSR).
His Honour Justice Brereton delivered his judgment on 12 June 2014. In the judgment, His Honour provides greater certainty for secured creditors as to the relevant factors for consideration and the circumstances in which a s 588FM order ought to be granted. The judgment also provides increased protection for secured creditors and offers secured creditors who have not registered their security interests against a company within the required 20 business days a second chance to perfect their security interest.
Registering Security Interests
Pursuant to s 588FL of the Corporations Act, the relevant time for registering and perfecting a security interest against a company on the PPSR for the purposes of the Personal Property Securities Act 2009 (Cth) (PPSA) is 20 business days after the security agreement granting the interest comes into force.
In circumstances where a secured creditor fails to register its security interest within the required 20 business days, the secured creditor’s security interest will not be perfected.
Failure to Register and Perfect a Security Interest
The consequences for a secured creditor failing to perfect its security interest can be fatal to the creditor’s interest.
For example, without notice of any security interests, third party creditors may enter into further security agreements or arrangements with the grantor in relation to the same security. In that ...
A New Right for Individuals to Control their Online Information
On 14 May 2014, the Grand Camber of the European Court of Justice (Court) delivered a judgment that could widely affect how search engines (such as Google) process, record, store and present information relating to individuals. The judgment addressed and confirmed the right of an individual to request that information relating to that individual be removed from search engines.
In Google Inc v Agencia Espanola de Proteccion de Datos, the Court held that search engines are involved in processing personal data; and that operators of search engines are data controllers for the purposes of the Data Protection Directive(DPD).
The Court held that search engines have a duty to ensure that published search results are compatible with the rights of individuals. The Court recognised that there is also a public interest and right to access information that needs to be protected, but on balance, the Court found that the rights of individuals, about whom data is collected, override the public interest (with a few recognised exceptions such as public figures).
The Court went on to find that the DPD includes a right for individuals to be forgotten - which extends to include a right for individuals to demand that search engines remove information that an individual does not want to be published about them. Interestingly, the Court held that the right existed irrespective of the individual’s ability to show any prejudice. The Court found support for its position in Articles 7 and 8 of the European Union Charter of Fundamental Rights.1
The Effects of the Judgment
While the judgment does not directly apply to Australia or jurisdictions outside the European Union, it does represent a significant step in allowing individuals greater control over information that is published about them on the Internet.
On 12 December 2013, the High Court by a 4 - 1 majority, sent a clear message to advertisers to be careful in ensuring that the dominant message of their advertising and marketing is not misleading and deceptive. Advertisers can no longer rely on the fine print of an advertisement to avoid liability under the Australian Consumer Law (ACL), where the dominant message of an advertisement is otherwise misleading or deceptive.
The decision offers greater protection to consumers who are targeted by bold and attractive advertising and clarifies the extent of advertisers’ obligations under the ACL.
ACCC v TPG
In Australian Competition and Consumer Commission v TPG Internet Pty Ltd,1 the High Court reinstated a $2 million pecuniary penalty imposed on TPG for a misleading advertising campaign about TPG’s unlimited broadband bundle.
In its $8.9 million advertising campaign, TPG ran this headline: “Unlimited ADSL2+ for $29.99 per month”. However, the price in the headline was only available for consumers who bundled the broadband service with a home phone service for a total of $59.99 per month. The pricing condition, including set up charges and the minimum length of the contract, were less prominently displayed than the headline advertising and appeared in the fine print of the advertisement.
At first instance, the trial judge found that the advertisements were misleading and deceptive and contravened sections 18 and 29 of the ACL, and that the total price of the service contravened section 48 of the ACL.
On appeal to the Full Federal Court, the Full Court overturned the trail judge’s finding and held that the advertisement was not misleading or deceptive.
On appeal to the High Court, the High Court held that the Full Court erred in its finding and reinstated the trial judge’s finding that the advertisement was misleading and deceptive in contravention of the ACL. Critical to the High ...
The Privacy Amendment (Enhancing Privacy Protection) Bill 2012 was passed by the Australian parliament on 29 November 2012 (Bill). The Bill effected major changes to the Privacy Act (1988) Cth (Act), and updates the "National Privacy Principles" to the "Australian Privacy Principles" (APPs). The changes took effect on 12 March 2014. This article will set out a (non-exhaustive list) of the things affected entities need to do to comply with the changes to the Act.
Entities Affected by the Changes
The Act applies to APP entities, which include governmental entities and "organisations". The term "organisation" does not include entities captured by the definition of "small business".
Under the Act, an entity is a "small business" unless it turns over more than $3,000,000 per year, and does not:
- provide a health service;
- disclose personal information about an individual to a third party for "benefit, service or advantage"; or
- provide a "benefit, service or advantage" to collect personal information about an individual from a third party.
In other words, if an entity turns over more than $3,000,000 per year or engages in any of the activities in the bullet points above, it is captured by the Act.
Privacy Compliance Program
Under the changes, entities need to implement a "Privacy Compliance Program", the aim of which is to ensure that the entity complies with the APPs, and has a structured procedure in place to handle complaints about the entity's compliance with the APPs. The Privacy Compliance Program must be set out in a written document with specific types of information included.
All references to "National Privacy Principles" should be changed to "Australian Privacy Principles".
Entities also need to add to their Privacy Policies:
- if they are likely to disclose personal ...
Peter Rouse, Rouse Lawyers Associate and team leader of Franchising, is producing his first short film, Respite. Rouse Lawyers has now joined the team as executive producer.
The film is affiliated with Vision Australia, a charity that supports the blind community. The producers will be donating a portion of the profits made from the film to Vision Australia for all their help authenticating the script and promoting the film.
By pledging on the link below, you will not only help realise this wonderful story, you will also be contributing to a wonderful cause!
The ultimate goal of the film’s team is to have the film shown at film festivals both domestically and intentionally, including Cannes and Sundance.
Respite follows the story of Dominic, a blind man suffering depression and insomnia. When he dreams visually for the first time, he becomes addicted to sleeping (pills), citing God for his good fortune. Meanwhile, he neglects a newfound friendship with Hope. Torn between dreams and reality, life and death, can Dominic be saved and assume responsibility for his own deliverance?
Respite is a story of hope in the face of darkness and the prevailing power of an individual’s will. It is about the isolation we all share, a correlation between despair and faith, and a struggle between rationality and spirituality.
You can help donate to this exciting film by visiting the following link www.indiegogo.com/projects/respite. ...
WHAT IS THE SMALL BUSINESS FAIR DISMISSAL CODE
As of 1 January 2010, private sector employees are protected by the new national industrial relations system, the Fair Work Act, while public sector employees are covered by the state industrial relations system.
The Small Business Fair Dismissal Code is a new national workplace system designed to assist small businesses and their employees and works in conjunction with the Fair Work Act 2009.
The new system provides that the minimum employment period is now twelve (12) months (instead of the original six (6)) and that an employee cannot make a claim for unfair dismissal within this twelve (12) month period.
The system also recognises that Small Businesses are unlikely to have expert Human Resources staff and aims to assist employers ensure that any valid dismissals are not considered to be unfair. This is done via the Dismissal Code Checklist, discussed below.
WHATE CONSTITUTES A SMALL BUSINESS?
Under the Code, a small business is considered to be any business where the employer employs less than fifteen (15) full-time equivalent employees. Please note that this number can include employees of related entities.
APPLICATION FOR UNFAIR DISMISSAL REMEDY
An employee has fourteen (14) days from the date of the dismissal coming into effect to lodge an application to Fair Work Australia. Applications are made to Fair Work Australia as part of the new national scheme. Unfair Dismissal is determined to have occurred when an employee applies to Fair Work Australia and it is determined that:
- The employee was dismissed; and
- The dismissal was harsh, unjust or unreasonable; and
- The dismissal was not the case of genuine redundancy; and
- In the case of the employer being a small business, where the dismissal was not consistent with the Small Business Fair Dismissal Code.
For small businesses, for an employee to be eligible to make an unfair dismissal remedy ...