Can an Emoji be defamatory?

The NSW District Court recently considered the meaning of the ‘zipper-mouth’ emoji posted in response to tweet. It’s always entertaining to read judges traverse social media and the like and the reference to emojis as a “new-age hieroglyphic-style language” brought a smile to my face.

The defendant had challenged the three imputations and the meaning of same substantially turned on what the “zipper-mouth” emoji means.

His Honour at [31] held that the zipper-mouth’s meaning is “ “a secret” or “stop talking”, in circumstances where a person impliedly knows the answer but is forbidden or reluctant to answer.”

The defendant claimed that the “zipper-mouth face” meant that he could not reply and no defamatory imputations could be conveyed. However, the Court held that all three imputations associated with the emoji were capable of being made.

Full judgment – Burrows v Houda [2020] NSWDC 485

 

The Qld Supreme Court recently confirmed that the starting presumption for a restraint of trade clause is that it is void as contrary to public policy.

The presumption may be rebutted if there are special circumstances that demonstrate the covenant to be reasonable as between the parties; and not unreasonable in the public interest.

Bond J dismissed the application seeking, inter alia, to injunct (until the trial of the matter) the employee and his new employer from entering into an employment contract.

His Honour held at [52] that it is not for the Court to rewrite a restraint clause to preserve its validity.

Read the full judgment here

 

The truth hurts!

In the matter of Commonwealth of Australia v Endresz, [2020] FCA 1228, the applicant sought a sequestration order pursuant to the Bankruptcy Act. The Commonwealth’s petition stated that the amount of ...

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I lost my Trust Deed!  Is this a problem?

Yes, but one you can attempt to remedy. How far you go down the path to a solution may depend upon the various risks, including lost funding, potential claims upon the Trustee, unhappy beneficiaries, financial relationship breakdowns taxation disputes and loss of business control when someone dies or loses capacity.

Why do I need the actual original Trust Deed - Isn’t there a Trusts Act that gives Trustee power?

Yes, in Queensland the Trust Act 1973 provides limited powers that the Trustee can rely upon.  These are likely to be restrictive and not empower the Trustee to do the many things necessary to manage a trust effectively.  This is heightened when the Trust manages a business, or perhaps you want to consider opportunities for streaming income or capital gains in line with Australian Tax Office requirements.

The flexibility and advantages of a discretionary family trust are lost if that very flexibility cannot be capitalised upon by the wording of a Deed. The disadvantages are heightened without a Trust Deed.

Can the Trustee be personally liable for actions taken on a ‘lost’ Trust Deed?

Yes.  Imagine if a future beneficiary of the trust has complaints about the actions of the Trustee.  What support will the trustee have in justifying their action or inaction, their powers and discretions?  Who is to say that the steps taken are definitive. If a dispute arises between beneficiaries, trustees or independent parties such as financiers and the Australian Tax Office, the Trustee is in an increasingly tenuous position to defend its’ actions when they have no recourse to their governing document.

Surely, it doesn’t really matter – I have a pretty good idea of what the Trust said….

Whether you are the trustee, appointor, beneficiary, an advising Accountant, Financier, Solicitor or the Australian Taxation Office – the impact of not having even a copy of the specific Trust Deed ...

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Can I gift assets to children or other loved ones, and protect it from a divorce or de facto relationship breakdown1?

Yes - Protection can be achieved in various circumstances - there are always other factors to be considered to ensure the legacy is as effective as possible.  This is no cookie-cutter solution, professional drafting and advice is your best solution.

How do we achieve this?

In short, we rely upon effective drafting of a Discretionary Trust created within your Will (coming into effect once you have passed away), coupled with other mechanisms of ‘control’ and practical operation of the Trust.

In what ways does the Court work out a property settlement?

There is a 4 Step Process that the Court undertakes under Section 79(4) of the Family Law Act 1975 (Cth).  This includes:

1. Identifying the property pool for division;
2. Assessing the financial and non-financial contributions to the acquisition, conservation and improvement of that property;
3. Future needs of each party to the marriage; and
4. Whether the proposed division is ‘just and equitable’ in accordance with Section 79 (2) of the Family Law Act.

So a Trust can be part of a relationship’s assets, available for division or considered a ‘financial resource’ of one party?

Yes. ‘Property’ of a relationship is construed ‘widely’ in the Family Law jurisdiction. 2 The assessment of division of property will consider the ‘income, property and financial resources of each party’.  So, a ruling under the Family Law jurisdiction could take into account a party’s potential financial resources (including from a Trust in some circumstances).

So what are some options to maximise protection?

• Purchasing assets in a carefully drafted ...

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Rouse Lawyers has been named as a finalist in the Australian Law Awards for Boutique Law Firm of the Year.

Now in its 20th year, the Australian Law Awards, run in partnership with Principal Partner UNSW Law, bestows the industry’s most prestigious accolades recognising excellence across the entire legal industry.

The awards showcase professional development and innovation, celebrating both the individuals and firms that are leading the way in the industry.

Award recipients represent a true cross section of the legal industry, recognising the contributions of the profession’s most senior ranks through to its rising stars.

The finalists for 2020, announced over two weeks beginning on 6 July 2020, feature over 320 high-achieving legal professionals across 34 submission-based categories.

“It is our pleasure to mark the 20th year anniversary of the Australian Law Awards,” said Lawyers Weekly editor Emma Ryan.

“This annual event represents the premier benchmark for those operating in the business of law, covering vast practice areas, level of experience and contribution to the profession.

“I would like to congratulate all of the finalists for this year’s event. We look forward to celebrating with you soon.”

Matthew Rouse, founder at Rouse Lawyers, said that he was humbled to be recognised and proud to be named as a finalist in the Australian Law Awards 2020.

“Rouse Lawyers' recognition for our excellent contribution to the industry reinforces the strength of our service and dedication to connecting with the community and engaging with clients,” he added. ...

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Stephanie Forward-Smith from Rouse Lawyers has been named as a finalist in the Australian Law Awards for Rising Star of the Year.

Now in its 20th year, the Australian Law Awards, run in partnership with Principal Partner UNSW Law, bestows the industry’s most prestigious accolades recognising excellence across the entire legal industry.

The awards showcase professional development and innovation, celebrating both the individuals and firms that are leading the way in the industry.

Award recipients represent a true cross section of the legal industry, recognising the contributions of the profession’s most senior ranks through to its rising stars.

The finalists for 2020, announced over two weeks beginning on 6 July 2020, feature over 320 high-achieving legal professionals across 34 submission-based categories.

“It is our pleasure to mark the 20th year anniversary of the Australian Law Awards,” said Lawyers Weekly editor Emma Ryan.

“This annual event represents the premier benchmark for those operating in the business of law, covering vast practice areas, level of experience and contribution to the profession.

“I would like to congratulate all of the finalists for this year’s event. We look forward to celebrating with you soon.”

Stephanie Forward-Smith, Commercial Litigation Senior Associate at Rouse Lawyers, said that she was humbled to be recognised and proud to be named as a finalist in the Australian Law Awards 2020.

Rouse Lawyers is delighted at the recognition for Stephanie's excellent contribution to the industry. ...

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The Fair Work Commission has decided to increase the national minimum wage by 1.75% to $19.84 per hour, which equates to $753.80 per week.

Modern Award rates of pay will also increase by 1.75%.  However, due to the COVID-19 crisis and the state of the economy, the increases to the Modern Awards will be introduced in stages over the next 8 months between 1 July 2020 and 1 February 2021 as follows:

Group 1 Awards

Modern Awards to be increased from the first full pay period starting on or after 1 July 2020:

• Frontline Health Care & Social Assistance Workers;
• Teachers and Child Care; and
• Other Essential Services.

Group 2 Awards 

Modern Awards to be increased from the first full pay period starting on or after 1 November 2020:

• Construction;
• Manufacturing; and
• A range of other industries.

Group 3 Awards 

Modern Awards to be increased from the first full pay period starting on or after 1 February 2021:

• Accommodation and Food Services;
• Arts and Recreation Services;
• Aviation;
• Retail; and
• Tourism.

To access a full list of the Modern Awards and the relevant increase dates as published by the Fair Work Ombudsman’s website, we have included a link here. ...

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Businesses should make sure they are aware of the recent changes to the Fair Work Act 2009 (Cth) (FW Act) for the JobKeeper Payments, and the new provisions in a number of Modern Awards, as they contain flexibility provisions that will assist in managing your employees and labour costs during the COVID-19 crisis.

We have summarised the key changes, provided some key links below and also answered some of the more commonly asked questions, to assist your business in understanding and best utilising these new provisions.
JOBKEEPER PAYMENTS
The JobKeeper Payments are now available to businesses to assist in retaining your employees through the crisis. To find out if your business is eligible and the steps you need to follow, you should contact the ATO. Key links for additional information include:

• Treasury: https://treasury.gov.au/coronavirus/businesses
• ATO: https://www.ato.gov.au/general/JobKeeper-Payment/

In short, your business may be eligible for $1,500 per fortnight per employee until 27 September 2020 to assist in retaining their employment. Not all employers and employees will be eligible, so it will be important to check if your business is entitled to participate, and which of your employees will be eligible for the payments. There are a number of exclusions businesses will need to be across.

Remember that your business will need to have paid the eligible employees before you receive the payments from the ATO and the payments will start to be made by the ATO to eligible Employers from next month.

You will also need to ensure you keep the ATO updated on any changes to employees you are receiving JobKeeper Payments for. Failure to disclose such changes could result in a recovery of any overpayments made to your business, as well as interest and potential penalties if it ...

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Are you a business owner concerned about what will happen if you are unable to pay your rent amidst the COVID-19 pandemic? Or a landlord unsure of what your obligations are to your tenants in the event that they cannot meet their obligations under a lease agreement? In either scenario, it is helpful to familiarise yourself with the proposed government response, current laws surrounding forfeiture, and potential for relief against forfeiture.

On 7 April 2020, the National Cabinet announced a mandatory Code of Conduct. The Code only applies to tenants with an annual turnover of up to $50 million that are suffering financial distress or hardship as a result of the COVI-19 pandemic as defined in the Commonwealth Government’s JobKeeper programme. As Queensland has not yet changed its laws surrounding evictions, and the Code does not apply to all tenancies, it is important to understand the current risk that financially struggling businesses face from the laws surrounding forfeiture.
What is forfeiture?
Forfeiture is a method of determining a lease by the lessor retaking possession of the property following default by the tenant of an obligation. Many leases will contain an express forfeiture clause, but if they do not forfeiture can be accessed as a proprietary remedy.

The key aspects of forfeiture to keep in mind are:
1. The tenant must default on a particular kind of obligation
In order for a lease to be forfeited, the tenant must default on an obligation under the lease agreement. Under s 107(d) of the Property Law Act 1974 (Qld), default could include a one-month failure to pay rent or a two-month failure to fulfil other obligations. Importantly, lessors cannot evict tenants pre-emptively or immediately once they default on an obligation and the default must be sufficiently serious to enliven forfeiture laws.
2. If the default is waived by the lessor they cannot later try and claim forfeiture
A lessor may waive any covenant in the lease which serves to ...

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The current COVID-19 pandemic and subsequent government action may have you uncertain about what obligations you owe under existing contracts and what you should expect from other parties. Amidst this uncertainty, it is possible that you have already planned ahead in the form of a ‘force majeure’ clause in your contract, which are those dealing with the consequences of unforeseen events. To gain a better understanding of your obligations it is a good idea to check through your current contractual undertakings and consider:
What is a force majeure clause?
A force majeure clause is a clause in a contract which specifies modifications to the contract, such as giving the right to suspend or terminate the agreement, if a particular event occurs without the fault of either party. Often such a clause will appear as a list of circumstances for which the parties wish to create a contingency plan commonly these clauses may include terms such as “an act of God” or “civil unrest”.
Does the COVID-19 pandemic fall within the scope of that clause?
Whether the COVID-19 situation falls within the scope of the clause depends on your particular contract. In some contracts the clause may provide an exhaustive list of events which will trigger the clause. If this list includes terms such as ‘pandemics’, ‘epidemics’, ‘health events’, ‘quarantine’ or ‘government action’ then the force majeure provisions will most likely apply.If the clause is more open-ended, it will depend on the wording of the clause as to whether the pandemic will fall within the scope of this clause.
Has your ability to perform the contract been interrupted or prevented by a force majeure event?
There must be a sufficient connection with the pandemic and your inability to perform the contract (or part thereof). For example, it would be difficult to link COVID-19 with a failure to comply with a confidentiality clause but it may be reasonable to ...

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The government released the National Cabinet Mandatory Code of Conduct (Code) outlining principles that apply to negotiating amendments to existing lease arrangements for ‘SME Commercial tenants’ suffering ‘financial stress or hardship’ during the COVID-19 pandemic period.SME Tenants are tenants with an annual turnover of $50 million or less that are eligible for the governments JobKeeper programme. The COVID-19 pandemic period is the period in which the JobKeeper programme is operational (Pandemic Period).
Key Principles
The Code prescribes the following key principles during the pandemic period:

1. Landlord’s must offer commercial tenants proportionate reductions in the form of waivers and deferrals of up to 100% of the amount ordinarily payable based on the reduction in the tenant’s trade during the Pandemic Period;
2. Rental waivers must constitute no less than 50% of the total reduction in the rent payable under the above principle over the Pandemic Period. Tenants may waive the requirement for a 50% minimum waiver by agreement;
3. Payment of rental deferrals by the tenant must be amortised over the balance of the lease term and for a period of no less than 24 months, whichever is greater, unless otherwise agreed by the parties; and
4. Any reduction in statutory charges or insurance will be passed on to the tenant in the appropriate proportion applicable under the terms of the lease;

*To be clear, rent waivers are not to be repaid or amortised. It is effectively a credit note against rent otherwise payable.Financial stress or hardship is defined as the inability to generate sufficient revenue as a direct result of the COVID-19 pandemic (including government-mandated trading restrictions) that causes the tenant to be unable to meet its financial commitments (including lease commitments). It may be arguable that a ...

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