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Why your business needs a contract playbook?

Why your business needs a contract playbook?

Commercial Law, Employment Law

A contract playbook sets out your company’s position on contract clauses.

A contract playbook is a single place where you set out your organization’s position on common contract clause categories such as indemnities, confidentiality, and warranties. It sets out what clauses can be accepted, rejected or amended and who has the authority to accept, reject or amend different types of clauses.

Your playbook should include:

  • A description of your contract processes and contact roles and responsibilities
  • Your organization’s risk profile
  • Your negotiation strategy – goods, services or both? What are important deal terms to focus on? Where are you comfortable compromising? Who handles negotiations?
  • Decision making authority levels – who can sign off on what decisions?
  • A list of standard clauses (accepted/rejected/amended) included in your template contracts

A contract playbook allows you to review contracts quickly and to remove bottlenecks in contract review.

A Contract Playbook allows you to review contracts quickly, and it helps remove bottlenecks in contract review. A contract playbook allows you to identify the areas of a contract that your sales team does not always know. You can then figure out how to make those parts of the contract easy for your sales team to understand by providing guidance on how they should respond when faced with those items in a contract.

Additionally, you can use your understanding of common items in contracts to structure your playbooks so that they automatically move contracts forward based on completed actions. For example, if all issues have been addressed and approved for a given section of the contract, your playbook could start the final approval phase automatically instead of requiring someone to manually do this step every time.

Your company needs to have a standardised approach to reviewing contracts.

A standardised approach is particularly important when you have several people reviewing contracts. It means you’re more likely to achieve consistent outcomes, which reduces the risk that the company will be in breach of a contract.

It also helps protect against commercial risks. For example, if your company enters into contracts under which it will pay a software vendor for its services on an ongoing basis and that vendor has a clause entitling them to early termination for convenience (i.e. without cause), then this may create a risk that the vendor could terminate the contract and effectively walk away from any long-term commitment to your company. This can be mitigated by agreeing upfront that the vendor won’t be able to terminate for convenience unless it’s prepared to pay compensation to your company for any costs incurred as a result of early termination.

When dealing with vendors who have standard template agreements (for example, software vendors or banks), it’s beneficial to prepare a set of comments or even suggested amended clauses so there’s less back and forth during negotiations over each individual contract.

Your contract playbook can be used to inform sales-people what clauses will be accepted, rejected or amended.

A contract playbook can be used to inform your salespeople what clauses will be accepted, rejected or amended.

Your sales teams can use the playbook to negotiate better deals and to get contracts signed faster.

A contract playbook is a good way to increase the speed at which contracts can be reviewed.

Contract playbooks are a great way to increase the speed at which your contracts can be reviewed. They include a list of clauses that your sales teams can accept, reject or amend as standard, which makes them much quicker to review than going through each clause from scratch.

A contract playbook allows you to standardise the approach taken when reviewing contracts and means that your sales people will know what clauses are acceptable without having to change their pitch for each new customer.

Negotiating: how to respond to an unreasonable offer

Negotiating: how to respond to an unreasonable offer

Commercial Law

Negotiation is a key life skill, and it is a skill that can be life changing. We’ve worked with clients across multiple industries—from restauranteurs to real estate agents—and we’ve encountered just about every negotiation tactic under the sun. In this post, we look at the unreasonable, the stubborn, and the cantankerous counterparty, and we seek to answer the question ‘how should you respond to an unreasonable offer or unreasonable negotiating position’.

Have you been in a negotiation with someone who just kept… asking for more or who could not move past an unreasonable position? Negotiations can be everything from productive and useful to a complete waste of time. If you’re working a deal with someone who won’t budge, it can feel like they’re deliberately making the negotiation process difficult.

How do you respond? Well, there are a number of points to understand about this situation, and we’ll cover them below.

1. Don’t respond to unreasonable offers in an unreasonable manner.  Most offers are not there to be taken, they are clues, part of the communication and negotiation process and no more. See each offer for what it is, information that you can use to understand the counterparty, their concerns and their level of understanding of the negation. Oftentimes an unreasonable offer is a clear sign that your counterparty does not adequately understand the respective positions of the parties. It may also be a sign that they are angry and frustrated. 

2. To respond to an unreasonable offer made due to a lack of information: give the counterparty what they need to make a reasonable assessment. That may require specialist help, such as reports from advisors, accountants and others. In response the counterparty may then seek to distance their position from that independent information, a further sign that they are approaching the negotiation in an irrational way. 

3. Take time out. Aggressive negotiators believe that they get can an upper hand by their tone, and by pure rage. They can’t. When faced with aggression, take a break, slow down the process and don’t respond in kind. It is important to realise that everyone will need to ‘save face’ if a negotiation is to succeed, so don’t embarrass the angry chihuahua too much. 

4. Re-frame the discussion. Negotiations should be principles-based and the principles at play should be those that matter to the parties. Oftentimes negotiations get side tracked. Refocus discussion to state succinctly what each party is trying to achieve and then look to find creative ways to achieve that. 

Finally: Realise that not every negotiation will be successful. Sometimes it is time to concede and other times it is time to press on.

Common Law Claims for False Imprisonment

Common Law Claims for False Imprisonment

Criminal Law, Private Law

We are running a series of posts for law students and junior lawyers looking at legal basics. In this first post, we examine common law claims for false imprisonment.  If you are looking for legal advice on the following area, please consult a lawyer.

False imprisonment is an unlawful restraint of a person by another within a fixed area and can give rise to a civil claim. This is a sub-category of the tort of trespass to the person.

There are some areas of law that cross into both civil and criminal law. One such area is false imprisonment. In the criminal realm, false imprisonment is often alleged alongside assault and battery. That being so, false imprisonment is not merely a subcategory of assault.  In NSW, false imprisonment is a common law offence.  

The right to not be the subject of false imprisonment and to liberty more generally has been described as:

the most elementary and important of all common law rights and is protected by the common law doctrine of false imprisonment”: Ruddock v Taylor (2005) 221 ALR 32; [2005] HCA 48

What are the elements

The elements of false imprisonment are:

  1. The defendant must have been restrained directly (a positive/ voluntary act) against their will by the plaintiff. Note that a physical restraint is not required, restraint can occur as a result of a mental coercion. This may result from a threat of force (see Symes v Mahon [1922] SASR 447).
  2. The defendant must have been restrained within a fixed area. It is not sufficient, for example, to claim false imprisonment within Australia. (see Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44 at 53)
  3. The restraint must be total. Where there is a physical restraint, it must be total and not merely an obstruction. Whether or not restraint is total is a question of fact (see Bird v Jones (1845) 7 QB 742).

Who must show what?

The plaintiff must first prove that his or her imprisonment was caused by the defendant. It is then for the defendant to show lawful justification (see Ruddock v Taylor (2005) 221 ALR 32; [2005] HCA 48 at 140).

The duration of the false imprisonment is not an element but will be relevant to the question of damages (see White v State of South Australia [2010] SASC 95).

Consent is another potential defence to a claim of false imprisonment (see Myer Stores Ltd v Soo [1991] 2 VR 597).

Managing the Risks of Modern Slavery in the Resources and Energy Sectors

Managing the Risks of Modern Slavery in the Resources and Energy Sectors

Energy Law

On 7 December 2021, the Australian Human Rights Commission (AHRC) released a new guide to assist stakeholders in the energy and resource sectors with their compliance obligations arising under the Modern Slavery Act 2018 (Cth.)

The Guide is the fourth in a series that are industry-specific. The AHRC has previously released three such guides for the construction and property industry, financial services industry, and the health services industry.

The Guide is a 49-page document and is a useful tool for energy/ resource compliance managers to assist them with their compliance obligations in relation to modern slavery. This article will provide a summary of the Guide. The full document can be found at:

https://humanrights.gov.au/sites/default/files/document/publication/ahrc_kpmg_modern_slavery_energy_2021.pdf

This article will summarise the following:

  • What is Modern Slavery:
  • What does the Modern Slavery Act 2018 (the Act) Require?
  • What are the Seven Mandatory Reporting Criteria?
  • What Risks are Identified in the Resources and Energy Sector?
  • What Risks are Identified (specifically) in the Resources Sector?
  • What Risks are Identified (specifically) in the Energy Sector?

What is Modern Slavery?

Modern slavery is a term is used to describe situations where coercion, threats or deception are used to exploit people and deprive people of their freedom. These violations are crimes in Australia.

Modern slavery includes trafficking in persons, slavery, servitude, forced marriage, forced labour, debt bondage, the worst forms of child labour and deceptive recruiting for labour or services. The Guide acknowledges that the economic and labour market shocks accompanying the COVID-19 pandemic have exacerbated the risks of modern slavery globally, especially for women, children and migrant workers

The Guide noted the changing ground in relation to the mining of fossil fuels and energy supply:

Relationships between the traditionally distinct sectors of mining, oil and gas, and power generators and retailers, are rapidly shifting with the global shift towards decarbonisation and sustainability. This has added complexity to the supply chains of companies in these sectors, creating new modern slavery risks that must be considered and addressed under the Modern Slavery Act 2018 (Cth.)

What does the Modern Slavery Act 2018 (the Act) Require?

The Act requires entities with a consolidated revenue of $100m or more to submit a modern slavery statement. The statement must disclose what the entity is doing to identify and manage modern slavery risks in both their operations and supply chains. The statement must be approved by the entities board and signed off by a director or a responsible member of the entity. The statement is then published on a central online Australian Government register.

NB: It is important to note that there are also state laws in this space. For example, NSW has the Modern Slavery Act 2018 (NSW) relating to entities with consolidated revenue of $50m or more. The penalties in the NSW Act include fines of up to $1.1m.

What are the Seven Mandatory Reporting Criteria?

There are seven mandatory criteria that your entity must respond to under the Modern Slavery Act 2018 (Cth.) requiring descriptions of:

1. The reporting entity.

2.  Your structure, operations and supply chains.

3. The risks of modern slavery practices in your operations and supply chains and any entities owned or controlled by a parent entity.

4. Actions taken to assess and address those risks, including modern slavery due diligence and remediation processes.

5. How your entity assesses the effectiveness of the actions taken.

6. The process of consultation with entities owned and/or controlled by you.

7. Any other information that you consider relevant.

What Risks are Identified in the Resources and Energy Sector?

The AHRC research shows that there are four key factors that elevate the risk of modern slavery: vulnerable populations, high-risk business models, high-risk procurement categories, and high-risk geographies. Where multiple high-risk factors co-exist, there is a greater likelihood that actual harm is being experienced, and additional controls are required to ensure that risk does not become harm.

The Guide highlighted the common modern slavery practices connected to the resources and energy sectors as human trafficking, bonded labour, forced or unpaid work and the worst forms of child labour. The reasons given for the resource and energy sectors being high risk included:

  • High-risk geographies in operations and supply chains such as the presence of militias, criminal organisations and corrupt governments in countries that are conflict affected or prone to instability;
  • Alleged forced labour in developing countries is a supply chain risk for several renewable energy technologies;
  • Demand for base-skill workers in construction of infrastructure; frequent outsourcing of labour to third party contractors; and
  • Low visibility over multi-tiered supply chains.

The key trends giving rise to these risks were identified as:

  • Profound shift towards decarbonisation means rapidly changing procurement strategies and increasingly complex supply chains;
  • Increase in scrutiny and reporting requirements from markets, exchanges, lenders and investors on environmental, social and governance (ESG) issues;
  • Increase in scrutiny and minimum supplier standards from downstream customers regarding ESG issues; and
  • Increase in scrutiny from civil society on ESG issues, including shareholder action.

What Risks are Identified (specifically) in the Resources Sector?

In determining the resources sector as ‘high risk’, the AHRC cited the following reasons:

  • demand for migrant and base-skill workers;
  • the short-term and temporary nature of some work, such as construction;
  • high-risk business models, including labour hire and sourcing;
  • frequently operating in high-risk geographies; and
  • chartering and contracting sea transport, which is a known high-risk sector.

(As discussed above) in identifying the complex context-specific issues relating to certain countries, the AHRC cited the presence of militias, criminal organisations and corrupt governments in countries that are conflict-affected or prone to instability. The AHRC noted that these contextual factors, coupled with certain supply chain and operational complexities, increase modern slavery risk and require resource companies to proactively identify and manage that risk.

The Guide gave an example provided by Andrew ‘Twiggy’ Forrest who when investigating his corporations supply chain found an instance where workers were being forced to work after having their passports confiscated. He stated:

…it is now widely accepted that inaction, and hiding our head in the sand, are no longer options.

Resource companies are also exposed to risks associated with their corporate operations. These include risks relating to building management and other functional services, such as catering and cleaning, which have elevated risks of forced labour and trafficking practices.

What Risks are Identified (specifically) in the Energy Sector?

The AHRC clearly cite the procurement of goods in the construction of power infrastructure as the greatest source of risk for energy entities. This is largely due to the massive expansion of renewables in recent times. Traditional supply chains in the energy sector are as changed as the source of energy itself.  The procurement risks relate to:

  • Personal Protective Equipment (PPE) and uniforms;
  • Solar panels;
  • Electrical parts and electronic equipment, including metering equipment;
  • Mechanical parts; and
  • Processed metals.

The reasons that the AHRC give for risks in the procurement of goods in the energy sector include:

  • The high demand for migrant and base-skill workers in construction of infrastructure;
  • The supply chains that include high -risk geographies in the context of both manufacturing and resource extraction;
  • The short-term and temporary nature of some work, such as construction; and
  • The use of labour hire and outsourcing of construction and maintenance to third-party contractors.

Energy retailers are also increasingly purchasing renewable energy directly from third-party generators, such as wind and solar farms, to on-sell to customers. Adoption of PPAs has increased as companies offset their carbon emissions and even look to achieve neutrality. This exposes those energy companies purchasing renewable power to modern slavery risks in the manufacturing of renewable plant-sourced by generators from whom they purchase power.

Like resource companies, energy companies are also exposed to risks associated with their corporate operations. These include risks relating to building management and other functional services, such as catering and cleaning, which have elevated risks of forced labor and trafficking practices.

Summary:

The Guide gives a series of case studies and provides resource and energy sector entities with practical guidance in identifying risk, reporting of risk, and processes that assist with minimising risk. It is a clear indication of how serious the Commonwealth (and the States and Territories) consider the issue of modern slavery in relation to domestic industry.

As general investors are becoming more aware and increasingly concerned with unethical practices in supply chains generally, ensuring your entity’s compliance in this space is not just a matter of legal obligation it is a matter of financial survival. The carrot is being able to inform shareholders of the progress of this critical compliance obligation and the strident steps being taken to ensure that no one is harmed in the business itself and the associated supply chains. The stick is the turning away of ethical investors, the serious legal ramifications for failing in compliance and the reputational (and ultimately financial) damage for compliance failure in this space.

As the AHRC states in the Guide:“When companies fail to take their human rights responsibilities seriously, they expose people to harm and themselves to business risk”.

Energy Law Case Note: Miller v Lifestyle SA Pty Ltd [2021] SACAT 35 (7 April 2021)

Energy Law Case Note: Miller v Lifestyle SA Pty Ltd [2021] SACAT 35 (7 April 2021)

Energy Law

This case note concerns a decision of the South Australian Civil and Administrative Tribunal (the Tribunal).

The applicant in the matter, Mr Miller, entered into a residency agreement in March 2010 whereunder he resided in a retirement village in South Australia. Electricity supply within the village was initially managed by Lifestyle Utilities (LU), a related entity of the respondent.

The Tribunal decision notes that LU decided that it did not have the capacity to operate the embedded network at the village, as it was under the impression that it needed to demonstrate to the AER ‘experience as an electricity retailer, establishing business plans, putting into place customer service protocols, arranging for financial audits to be performed of the business and quarterly reports to be provided to the regulator.’ LU appears to have formed the view that it required a retail authorisation and that it was unable to operate under an exemption as energy selling was its main business activity.

LU thereafter appointed a private embedded network operator (ENO) at the Village pursuant to a contract commencing on 1 July 2015. The term of the contract was 5 years with an automatic renewal period of 5 years provided that there were no more than 5 complaints to the AER or state ombudsman scheme within the initial period. As there were no more than 5 such complaints, the renewal occurred and the contract will continue until July 2025. Pursuant to the contract with the ENO, LU agreed to either assign any existing agreements between LU and residents or to have new agreements signed between the ENO and residents.

The solar and usage tariffs

At the time of installing a solar PV system, Mr. Miller was paid for excess generation at between 34-36c per kwh. The ENO continued to pay that amount to Mr. Miller. The contract between Mr Miller and LU further provided for a 10 percent discount on energy tariffs (from the [sic] ‘SA Regulator approved energy tariffs’). The terms of supply from the ENO did not provide for the same discount and rather provided for:

  • a 10% pay on time discount for residents without solar power;
  • a 4% pay on time discount for residents who are ‘new solar users;’ or
  • no discount for ‘residents on the old solar tariff.’

Mr. Miller’s complaint was lodged against the village operator and was essentially that he was being financially disadvantaged and further had no ‘freedom of choice of provider’ having been informed that no other provider will take on the role of retailer unless they were also the operator of the embedded network.

The decision noted that in substance part of Mr Miller’s dispute arose by virtue of the contract between him and the ENO and that: ‘Under the RVA, the Tribunal only has power to deal with disputes between an Administering Authority and a resident. The Tribunal does not have the power to deal with disputes arising from contracts between a resident and any other entity – even if that entity is a related entity to the Administering Authority – and even if the dispute is about the provision of a service within the retirement village.’

The contract between the ENO and resident

The Tribunal then went on to review the ‘effectiveness of the contractual arrangement’ with the ENO finding that there was an effective contract between the ENO and LU. The Tribunal then went on to examine whether there was a contract between the ENO and Mr. Miller finding that:

  • The ENO wrote to Mr Miller on 10 August 2015 setting out the terms and conditions that would apply to his electricity supply and noting that if Mr Miller did not challenge those terms, then the ENO was entitled to assume that he consented to those terms.
  • In the terms and conditions within the letter, cl 3 allowed either party to terminate the arrangement on 20 days’ written notice.

The Tribunal found that ‘If Mr Miller did not want to continue with that arrangement, then he could have terminated it by providing 20 days’ notice.’  ENOs should not accept this finding as reflective of the current state of the law and should consult with a lawyer when determining how to contract with embedded network occupants.

The findings

The Tribunal then went on to consider whether the appointment of the ENO was:

  • in breach of the operator’s obligations under their residence agreement with Mr Miller;
  • in breach of the relevant provisions under the Retirement Villages Act 2016; or
  • harsh or unconscionable conduct within the meaning of the Retirement Villages Act 2016.

The Tribunal found that the respondent did not adequately consult on the proposed appointment of the ENO and was in breach of the regulations under the RVA 1987 (which is not technically a breach of the Act), and also in breach of an obligation under Mr Miller’s residence agreement because they have failed to comply with a term of the Code of Conduct. The Tribunal did not find that the appointment process was harsh or unconscionable conduct within the meaning of the Retirement Villages Act 2016.

The ultimate order of the Tribunal was as follows ‘The respondent (Lifestyle) will undertake appropriate consultation with residents prior to making any decision as to the appointment of an operator of the embedded power network in the Village, and such consultation will occur prior to the expiry of the current contract for that service.

Lessons for ENOs

Embedded Network Operators can take two lessons away from this decision. These are that:

  1. ENOs should have individual agreements with residents and comply with any obligations relating to contracting within the applicable exemption category or otherwise under applicable laws; and
  2. ENOs must consider not only requirements under energy laws when taking over a goldfield site but also those applicable to the particular type of customer, site, or development.
Have You Been Charged with Novice Range Drink Driving/ PCA in NSW?

Have You Been Charged with Novice Range Drink Driving/ PCA in NSW?

Criminal Law

What does PCA stand for?

PCA stands for Prescribed Concentration of Alcohol. Drive with PCA is often referred to as drink driving. PCA is calculated by a ratio of grams of alcohol to ml’s of blood.

What is ‘novice range’ drink driving?

Novice range drink driving is where a licence holder, usually a learner, provisional or interlock licence holder (who is subject to zero tolerance), records a blood alcohol concentration of 0.00 to 0.019.

I need my licence for work. Should I pay the fine or elect to go to court?

On 20 May 2019, the drink driving laws for novice range offences in NSW, came into effect. Prior to this date, everyone charged with novice range drink driving had to go to court. Now, for a first offence, you receive an infringement notice from police (like a speeding ticket). Like any infringement notice, you can elect to go to court or pay the fine.

I you elect to go to court you may have your matter dismissed (referred to as a section 10). This would mean that you don’t get a fine and don’t lose your licence. (Before you get your hopes us, keep reading…)

Prior to 20 May 2019, the courts were very reluctant to grant a section 10 for a novice range drink driving offence. Their rationale was the need for general deterrence, that is, sending a strong message to the community that you will not get any leniency for this offence.

Magistrates would often cite the fact that NSW Governments over the years have spent vast sums on advertising to get the message across that drink driving is serious. Section 10’s for drink driving offences were rare and remain so.

But here is the kicker…

Under the new system, if you elect to go to court and don’t get a section 10, you will have a criminal conviction on your record. If you pay the fine you don’t have a criminal conviction recorded. Only a (criminal) court can impose a criminal conviction.

Another point to consider is this. If you elect to go to court and don’t get a section 10, then the court will disqualify you from driving (where TfNSW will suspend your licence). The difference between a suspension (given by TfNSW) and disqualification (given by a court) is that if you are disqualified you must re-apply to TfNSW for your licence after the disqualification period expires before you can drive again. You do not have to re-apply if your licence is only suspended.

Also, the automatic disqualification period given by the court for novice range drink driving is 6 months. The court can reduce the disqualification period to 3 months (but cannot go below 3 months).

But I need my licence. Do I take the risk of getting a conviction?

The penalty for a first time drink driving offence, when you are given an infringement notice, is a $587 fine (currently) and immediate suspension of your licence for 3 months. In court the maximum penalties are up to 20 penalty units (currently $2,200) and an automatic licence disqualification of 6 months (which can be reduced to three months.) Again, if you elect to go to court and don’t get a section 10, you will have a criminal record.

Are there any other options?

Yes. Pay the infringement notice and appeal the licence suspension.

Remember that once you have received your infringement notice at the time you are fined, you are immediately suspended from driving. DO NOT DRIVE.

Go to your nearest local court registry and lodge an appeal against your licence suspension. Complete the form and pay the filing fee (currently $99). This appeal is against TfNSW, Transport or New South Wales (formerly known as the RMS).

You must lodge the appeal within 28 days of receiving your suspension notice (generally the date of the offence). If you don’t lodge the appeal within 28 days the magistrate will not be able to hear your case. This is an administrative application and not a criminal process.

If your appeal is unsuccessful TfNSW may ask the magistrate to make an order for you to pay their legal costs. However, TfNSW do not usually seek costs in licence appeal matters. Also note, you cannot get a criminal record from this process. If your appeal is successful the court can remove the suspension or lower the duration of the suspension.

I didn’t know about this. I elected to go to court and lost my licence and got a conviction. What can I do?

The only thing you can do now is appeal the decision of the Local Court magistrate to the District Court. Again, an appeal needs to be lodged within 28 days of the local court matter being finalised. You can lodge your appeal after the 28 days but only up to three months after the date that the local court decision is made. You would need to give reasons why you did not lodge the appeal within 28 days. The court may hear your appeal if they accept your reasons.

You should obtain legal advice before lodging your appeal. A lawyer can assist you in lodging the appeal and appear for you in court.

Have You Been Charged with drive with illicit substance in NSW?

Have You Been Charged with drive with illicit substance in NSW?

Criminal Law

This charge is cited as (s111 of the Road Transport Act 2013) drive with presence of prescribed drug in oral fluid, blood or urine. This charge is made out when there is a presence of an illicit substance in your oral fluids. It does not mean the drug was active at the time of the roadside test. That would be a different charge, namely drive under the influence of a drug (s112 of the Road Transport Act 2013).

I need my licence for work. Should I pay the fine or elect to go to court?

On 20 May 2019, changes to the drive with illicit substance charges in NSW, came into effect. Prior to this date, everyone charged with this offence had to go to court. Now, for a first offence, you receive an infringement notice from police (like a speeding ticket). Like any infringement notice, you can elect to go to court or pay the fine.

You will also have your licence suspended by Transport for New South Wales (TfNSW) formerly known as the RMS, for a period of three months. This usually happens (via letter) after you have paid your fine (some days or weeks after the charge is laid).

If you elect to go to court you may have your matter dismissed (referred to as a section 10). This would mean that you don’t get a fine and don’t lose your licence. (Before you get your hopes us, keep reading…)

Prior to 20 May 2019, the courts were very reluctant to grant a section 10 for this offence. Their rationale was the need for general deterrence, that is, sending a strong message to the community that you will not get any leniency for this offence.

But here is the kicker…

Under the new system, if you elect to go to court and don’t get a section 10, you will have a criminal conviction on your record. If you pay the fine you don’t have a criminal conviction recorded. Only a (criminal) court can impose a criminal conviction.

Another point to consider is this. If you elect to go to court and don’t get a section 10, then the court will disqualify you from driving (where TfNSW will suspend your licence). The difference between a suspension (given by TfNSW) and disqualification (given by a court) is that if you are disqualified you must re-apply to TfNSW for your licence after the disqualification period before you can drive again. You do not have to re-apply if your licence is only suspended.

Also, the automatic disqualification period given by the court for is 6 months. The court can reduce the disqualification period to 3 months (but cannot go below 3 months).

But I need my licence. Do I take the risk of getting a conviction and disqualification?

The penalty for a first time drive with illicit substance offence, when you are given an infringement notice, is a $581 fine (currently) and suspension of your licence for 3 months. In court the maximum penalties are up to 20 penalty units (currently $2,200) and an automatic licence disqualification of 6 months (which can be reduced to 3 months.) Again, if you elect to go to court and don’t get a section 10, you will have a criminal record.

Are there any other options?

Yes. Pay the infringement notice and appeal the licence suspension.

Remember that once you have received your infringement notice and paid your fine, TfNSW will send you a Notice of Suspension. As soon as you get this letter lodge your appeal. You will see from the letter that by lodging an appeal you can continue to drive after the suspension date (only if you have lodged an appeal). If the court dismisses your matter any suspension or reduced suspension starts from that court date.

So….

Go to your nearest local court registry and lodge an appeal against your licence suspension after you have received your Notice of Suspension from TfNSW. Make sure you lodge your appeal before the suspension period starts and within 28 days of the date on your suspension letter. Complete the form and pay the filing fee (currently $99). This appeal is against TfNSW, Transport or New South Wales (formerly known as the RMS).

Remember, you can continue driving after you have lodged your appeal if you have lodged your appeal before the suspension period starts.

You must lodge the appeal within 28 days of receiving your suspension notice (the date of the offence). If you don’t lodge the appeal within 28 days the magistrate will not be able to hear your case. This is an administrative application and not a criminal process.

If your appeal is unsuccessful TfNSW may ask the magistrate to make an order for you to pay their legal costs. However, TfNSW do not usually seek costs in licence appeal matters. Also note, you cannot get a criminal record from this process. If your appeal is successful the court can remove the suspension or lower the duration of the suspension.

I didn’t know about this. I elected to go to court and lost my licence and got a conviction. What can I do?

The only thing you can do now is appeal the decision of the Local Court magistrate to the District Court. Again, an appeal needs to be lodged within 28 days of the local court matter being finalised. You can lodge your appeal after the 28 days but only up to three months after the date that the local court decision is made. You would need to give reasons why you did not lodge the appeal within 28 days. The court may hear your appeal if they accept your reasons.

You should obtain legal advice before lodging your appeal. A lawyer can assist you in lodging the appeal and appear for you in court.

Recent matters

Recent matters

Private Law

On this page, we will explain the work that we have recently completed, including the results of Court matters.

Federal Court Australia: Urgent Orders (22 November 2021)

This week we lodged an urgent application in the Federal Court of Australia seeking orders to prohibit respondents from dealing with the assets (cryptocurrency). Our client, had been denied access to the accounts of the funds and was unable to verify whether the cryptocurrency had been transferred.

Outcome: we were successful in obtaining orders restraining the respondents from dealing with the cryptocurrency and in requiring them to provide further information to our client. Urgent court orders can be obtained in limited situations where action is required immediately to preserve the status of the parties. 

Pause on Construction until 30 July 2021: Implications for Energy Businesses

Pause on Construction until 30 July 2021: Implications for Energy Businesses

Energy Law

Yesterday, the NSW Government announced that all construction in Greater Sydney would be paused until 30 July 2021. The new measures were gazetted on 17 July 2021 in the 8th Public Health Order, the Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Amendment (No 8) Order 2021, which has the effect of amending the prior Orders. The construction related measure is in response to delta variant cases that have emerged from construction sites.

Where does this leave those in the construction industry and those businesses who carry out ‘works’ such as the installation of solar panels?

This means that work will halt on a number of construction sites. Construction site means a place at which work, including related excavation, is being carried out to erect, demolish, extend or alter a building or structure but not work carried out in relation to a dwelling in which a person is residing.

The prohibition is set out in clause 24AB:

There are exceptions to the prohibition including where work is required to ensure the safety or security of a construction site and to maintain critical plant. This may encompass work carried out by solar installers required to ensure that panels are secure on site but would not cover the installation of new systems or new components.

The exception of ‘mainlining public utilities’ clearly covers work by entities such as Essential Energy. While the supply of electricity within embedded networks involves a private party carrying out some of the functions of a public utility supplier, works carried out by that entity are unlikely to be exempt unless they are required to ensure the continuity of supply or the safe operation of the embedded network.

What about residential premises?

Looking at the definition of construction site alone (which does not include …work carried out in relation to a dwelling in which a person is residing) may lead you to think that residential energy related works are not prohibited. That is not the case.

When it comes to visiting ‘places of residence’ i.e. going to a residential premises, clause 22A applies.

What this means is that unless work is urgently required, as set out in sub-clause (4B) your business is not able to visit residential sites.

Contractual implications

Many energy businesses are under contractual obligations to deliver and complete work over the next two weeks. Energy businesses need to consider what the contractual implications of the new measures will be. To do this, they should consult with their in-house legal team or external lawyers and should do so as soon as possible.