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).

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. 

What Employers Need To Know about Unfair Dismissal Claims

What Employers Need To Know about Unfair Dismissal Claims

Private Law

In 2020, unfair dismissal claims shot up by almost 70% during the coronavirus crisis with the Fair Work Commission dealing with an “unprecedented” caseload.

Recently, the NSW District Court awarded a former Aussie Toyota employee and Dad a damages award of $276,000 on the basis that the company could not prove he had engaged in serious misconduct and had unlawfully terminated him only one day before he was to due to receive a massive redundancy package.

So what if you need to dismiss an employee and want to minimise the risk of those consequences? 

In a challenging economic climate, it can be overwhelming as an employer to consider terminating an employee when you may face the complexities of an unfair dismissal application.

Here’s the lowdown for employers on unfair dismissal claims:

Who can make an unfair dismissal claim?

In order to bring an unfair dismissal claim in Australia, a dismissed employee must have been employed for a minimum period of time, which period depends on whether the employer is considered to be a small business employer.

A small business employer is defined by the Fair Work Act 2009 (Cth) as an employer that employs fewer than 15 employees at that time.  

The Fair Work Act says that when calculating the number of employees at the time of an employee’s dismissal, all employees are to be counted including employees of associated entities (as defined under section 50AAA of the Corporations Act 2001 (Cth)), the employee being dismissed, and any other employee(s) being dismissed at the same time.

You don’t count casual employees unless at the time of the relevant employee’s dismissal, the casual employee(s) are working on a regular and systematic basis.

If the employer is a small business employer, the employee needs to have been working for the employer for at least 12 months before they are eligible to make a claim under the legislation.

If you’re not a small business employer, the employee needs to have worked for your business for a minimum period of 6 months before becoming eligible to bring an unfair dismissal claim. 

If there’s been a change of business ownership, service with the first employer may count as service with the second employer when calculating the minimum employment period.

The employee must also be either covered by a Modern Award or an enterprise agreement, or if not, have an income less than the high-income threshold (see s 382 and 332 of the Fair Work Act).  

The high income threshold is currently $153,600 however this figure is adjusted annually on 1 July. For a dismissal which took effect on or before 30 June 2020, the high income threshold was $148,700.

If an employee does not meet the above eligibility requirements, they cannot bring a claim for unfair dismissal under the Fair Work Act however they may have a potential claim under the ‘general protections’ (otherwise known as ‘adverse action’) provisions of the Fair Work Act

What other type of claim can an employee bring?

Employees may also have other options available than just an unfair dismissal claim, some of which may entitle them to a lot more compensation because, unlike unfair dismissal claims (where you can only claim up to 6 months of your wages as compensation), the compensation available in relation to other common law claims may be ‘uncapped’ or subject to a higher jurisdictional amount. These include:  

  • Breach of Contract Claim;
  • Adverse Action Claim (General Protections Claim);
  • Discrimination Claim; or
  • Unlawful Termination or Wrongful Dismissal Claim.

What constitutes an unfair dismissal?

Under s 385 of the Fair Work Act 2009 (Cth) (FWA), a person has been unfairly dismissed if the Fair Work Commission is satisfied that the dismissal was harsh, unjust or unreasonable. The Commission must also be satisfied that the dismissal was not a case of genuine redundancy. If the employee worked for a small business employer and they failed to comply with the Small Business Fair Dismissal Code, this can also be grounds for dismissal under the Act.

Criteria for unfair dismissal

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following (s 387 of the Fair Work Act):

  • whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)
  • whether the person was notified of that reason
  • whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
  • any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
  • if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
  • the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal
  • the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal, and
  • any other matters that the Commission considers relevant.

What should an employer do if it receives a Fair Work Commission claim?

An employee has 21 days to file an unfair dismissal claim before the Commission, from the date the dismissal took effect. Once you receive a claim form, before filing a response to the claim, the first thing you should do as an employer is seek legal advice. 

You may be able to lodge an objection to the matter being dealt with by the Fair Work Commission, such as the claim being lodged outside of the requisite 21-day time frame. You could argue that the employee is not eligible to make a claim for unfair dismissal, or that the claim is vexatious, frivolous or has no prospects of success.

An employer is otherwise required to file a response after which time the matter proceeds to a conciliation conference with a Fair Work Commission conciliator. This gives both parties a chance to state their case and try and resolve the dispute. 

Fair Work Commission stats show that approximately 80% cases are resolved before ever getting in front of a Commissioner, being either “resolved informally by agreement of the parties” or because the applicant dropped the claim.

If a claim is not resolved on or before the Commission conciliation conference, upon request, the Fair Work Commission has the authority to conduct a hearing and make a determination in the matter after hearing the evidence of both parties.

If a resolution cannot be achieved, the employee will receive a certificate from the Fair Work Commission stating that the parties have attempted conciliation and the employee will then have access to the Fair Work Commission, the Federal Court of Australia or Federal Circuit Court of Australia to seek a determination in the matter.

Once the matter has proceeded to a hearing in the Fair Work Commission, Federal Court of Australia or Federal Circuit Court of Australia, the parties will be provided with a written decision which contains reasons for the decision

Next Steps

At Law Quarter, we’re experienced in providing employers with pre-dismissal guidance and advising and representing employers in relation to unfair dismissal claims and employment-related claims. We’d love to help. Contact our team on 02 8324 1333 for a free consult today.

The articles on this website comprise legal general information and not legal advice. It is general information presented and must not be relied upon without specific legal advice being sought in each individual case. In the event that you wish to obtain legal advice on the contents of this general information, you may do so by contacting our office to discuss.

Jacqui Jubb

Law Quarter


PS Need more advice as an employer in managing employees in the new flexible working climate? Check out our COVID-19: Working from Home Guide here

Construction of Commercial Contracts

Construction of Commercial Contracts

Private Law

This post is part of our contract law series. If you are interested in understanding some of the common clauses found in commercial contracts, refer to the following:

In an ideal world commercial contracts would be perfectly drafted, setting out a clear path for the parties for performance and the achievement of their commercial objectives. Certainty in construction should lead to predictability in the outcome of any dispute about its terms and performance.

In the real world however, the quality of a commercial contract is a function of the time and cost expended on drafting it. Businesses do not have unlimited time to enter into contracts nor unlimited budgets to engage suitably qualified lawyers. As a consequence, a good proportion of commercial contracts are poorly drafted and are littered with ambiguity and error.

Oftentimes a poorly drafted contract becomes the centre of a legal dispute between parties in court. Courts are tasked with the responsibility for untangling competing potential meanings. Below we discuss some of the methods used by courts in Australia in the construction exercise.

Mount Bruce Mining

The High Court in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37 set out the ‘current state’ of the law of contract interpretation. In this case, the High Court found that:

“rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.” 

and further:

“that enquiry would require consideration of the language used by the parties to the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract.” 

In summary, Mount Bruce Mining confirmed the need to look at the text and context of the contract itself as well as the purpose evidenced by the language used by the parties, the contract itself and any other document referred to in the text of the contract.

The Mount Bruce Mining decision is important but should be read alongside other decisions, some of which are discussed below.

 Ecosse Property Holdings Pty Ltd

The above principles were affirmed in Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 where the majority of the High Court stated as follows at paragraphs [16]-[17]:

“[16] It is well established that the terms of a commercial contract are to be understood objectively, by what a reasonable businessperson would have understood them to mean, rather than by reference to the subjectively stated intentions of the parties to the contract. In a practical sense, this requires that the reasonable businessperson be placed in the position of the parties. It is from that perspective that the court considers the circumstances surrounding the contract and the commercial purpose and objects to be achieved by it.

[17] Clause 4 is to be construed by reference to the commercial purpose sought to be achieved by the terms of the lease. It follows, as was pointed out in the joint judgment in Electricity Generation Corporation v Woodside Energy Ltd, that the court is entitled to approach the task of construction of the clause on the basis that the parties intended to produce a commercial result, one which makes commercial sense. It goes without saying that this requires that the construction placed upon cl 4 be consistent with the commercial object of the agreement.”

Ordinary, natural meaning

A court will start by looking at the ‘ordinary, natural meaning’ of the terms in dispute. The general approach followed by judges is to interpret commercial contracts ‘fairly and broadly, without being too astute or subtle in finding defects.’[1]  The construction exercise will not necessarily cure a bad deal. Looking at the ordinary natural meaning of the words used may result in a ‘poor bargain’ inconsistent with what one may expect that commercial parties would expect.[2]

It has been recognized that while words have a natural meaning that applies in most situations, meaning is not derived in isolation from the context in which words are used. An interpretation that focuses on semantic and syntactical analysis leading to a construction that is contrary to business common sense will generally be avoided.[3]

When interpreting a contract, a court will have regard to the words used ‘so as to render them all harmonious with one another.’[4] In other words, a court will prefer a construction of the disputed terms that is congruent with the various other components of the contract. Words in a commercial agreement will be construed by reference to what a ‘reasonable business-person’ would have understood those terms to mean.[5] The relevant context in which the meaning of the words will be construed includes the terms of the contract and the objective facts surrounding the formation of the contact provided that those objective facts are known to all of the parties to the contract.

The rule that words should be given ordinary natural meaning is reflective of the proposition that parties to a contract are presumed to be capable of expressing their intentions. Where words are ambiguous, resort may be had to the surrounding circumstances to determine the meaning when choosing between two inconsistent meanings. Generally speaking, however, if the language used in a contract is unambiguous, a court will give effect to that language unless to do so would be to give the contract an absurd operation.[6] As you can imagine there have been a number of cases where the tension between the ordinary and natural meaning comes up against the business common sense.

Tools to assist in understanding the meaning of the words used

Courts may use a number of aids to assist in the interpretation of a contract. Firstly, where language is used that enjoys a settled meaning, courts will endeavor to adhere to such a meaning. Secondly, courts may use dictionaries and other materials to determine the conventional meaning of a word.[7] However, a dictionary whilst potentially used as a guide, will not be used as a substitute for the interpretive processes.[8]

Where a word is given meaning by statute, subject to a contrary provision in the contract, the meaning of the statutory term at the time of the contract will usually be accepted.[9]

Finally, where a word has both an ordinary meaning and a technical meaning, it will be given the ordinary meaning unless there is evidence that the parties intended to use the word’s technical meaning.[10] However, where a word has a technical legal meaning, it will usually be given that technical legal meaning unless there is a clear indication in the contract or the context of the contract that this is not what was intended. This presumption is particularly strong where a contract has been drawn up by lawyers.

Canons of construction

There are a number of widely accepted maxims or canons of construction that courts use to assist them in ascertaining the meaning of a contract. These canons can be considered as guidelines or aids in the construction process.[11] Some of the commonly used canons of construction are set out below.

The contract should be construed as a whole: this is a principle often cited in judgments which says that the meaning of a term should be considered against the context provided within the contract as a whole.[12]

A court should give effect to all parts of the contract: this means that each part of a contract must be considered when determining the meaning of the contract as a whole.[13] In applying this maxim, a court will endeavor to resolve internal inconsistencies by both giving effect to provisions capable of being read together or by qualifying one against the other.[14]

Express mention of a part of a subject matter implies that other matters are deliberately admitted: this means that where a contract expressly mentioned something but ommits others within the same class, it can be implied that the matters not mentioned are excluded.[15]

An expressed term excludes implication of a term on the same subject matter: this means that a term will not be implied if it is inconsistent with the expressed terms of the contract.

Noscitur a sociis: a word of ambiguous meaning may obtain meaning from the surrounding words if they have a common characteristic. This rule will apply where a genus for the words is identifiable by if words fall within a particular class then the word that is potentially ambiguous can be assumed to form part of that class.

Contra proferentem rule: where the meaning of a contract is ambiguous the words that are in dispute will be construed against the party who drafted the contract. There are conflicting views as to whether this maxim means that construction should favor the party who prepared the contract or should favor the party against whom benefit is provided. Courts have expressed the view that the contra proferentem rule applies only when having applied all other aids to construction and ambiguity remains.[16] In other words, this maxim is only used as a last resort when seeking to interpret a contract. This maxim commonly applies in the interpretation of guarantees and indemnities where courts have found that ambiguous provisions should be construed in favor of the guarantor.

A party may not take advantage of their own wrong: a contract will not be interpreted in such a manner as not to permit one party to take advantage of their own wrong. In other words, it will be presumed that a contractual entitlement arising from the occurrence of a particular event will not be enlivened if the event came about through the breach of the party seeking to rely upon it.[17]

Saving the document: where there are two possible constructions of a document, a court will favor the interpretation that retains rather than destroys the bargain.

[1] Hillas & Co Ltd v Arcos Ltd [1932] All ER 494.

[2] Cherry v Steele-Park [2017] NSWCA 295.

[3] Breakout Barrier Release Systems Pty Ltd v Breakout Barrier Release Systems Australasia Pty Ltd [2013] NSWSC 1815

[4] Australian Broadcasting Commission v Australasian Performing Rights Association Ltd (1973) 129 CLR 99, 109

[5] Wilkie v Gordian Runoff Ltd [2005] 221 CLR 522, 529

[6] Jireh International Pty Ltd [t\as Gloria Jean’s Coffee] v Western Export Services Inc. [2011] NSWCA 137

[7] House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498

[8] Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541.

[9] Smith v South Wales Switchgear Co Ltd (1978) 1 WLR 165.

[10] CCOM Pty Ltd v Jiejing Pty Ltd (1992) 36 FCR 524, 528

[11] Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130.

[12] Australian Broadcasting Commission v Australasian Performing Rights Association Limited (1973) 129 CLR 99.

[13] RE Media Entertainment and Arts Alliance; Ex parte Hoyts Corp Pty Ltd (1) (1993) 178 CLR 379.

[14] RE Media Entertainment and Arts Alliance; Ex parte Hoyts Corp Pty Ltd (1) (1993) 178 CLR 379.

[15] ABB Power Plants Limited v Electricity Commission of New South Wales (1995) 35 NSWLR 596.

[16] Sandbank Holdings Pty Ltd v Durkan (2010) WASCA 122

[17] Ruthol Pty Ltd v Tricon (Aust) Pty Ltd (2005) 12 BPR 98.

Why Your Business Needs A Contract Management System

Why Your Business Needs A Contract Management System

Private Law

Commercial contracts are a fact of life for business managers. They form the basis of employment, joint ventures, and other critical relationships. And yet, few businesses have a well-thought-out contract management strategy. And those that do are not always successful in implementing it.

You need a Contract Management System

The most common problem is that businesses don’t have a contract management system. They don’t know exactly where their contracts are, what they contain, and who has the authority to sign them. This means they can’t manage their contracts effectively and have trouble working out where their businesses sit when it comes to legal obligations.

Contract management is a critical component of any business’s risk mitigation strategy. If you don’t know where your contracts are, you can’t know if your business is exposed to risk. And if you don’t know how to manage your contracts, you can’t protect your business.

This is why your business needs a contract management system and the sooner it implements one the better.

What is a contract management system?

A contract management system is three things:

  1. A place to keep all your contracts and related documents;
  2. A set of policies and procedures for managing your contracts; and
  3. A set of tools for helping you manage your contracts.

Let’s take a look at each of these.

A place to keep your contracts and related documents

Your contract management system needs to be a place where you keep all your contracts and related documents. This includes every contract you’ve ever signed, every contract you are currently negotiating, and every contract you’ve signed but haven’t yet implemented.

This is the first step in managing your contracts. You need to know exactly what you are managing. You can’t manage what you don’t know exists.

A set of policies and procedures for managing your contracts

The second component of a contract management system is a set of policies and procedures for managing your contracts.

Those policies should include for example policies on who has authority to sign contracts, on what your business will accept in liability caps and on your business’s position when it comes to indemnities. Procedures should be in place for contract approval and execution.

In our experience, most businesses have no policies or procedures for managing their contracts. Many businesses that have policies and procedures don’t follow them.

If you don’t have policies and procedures for managing your contracts, you don’t have a contract management system.

A set of tools to help you manage your contracts

Not all contract management systems are automated online systems but your contract management system should include tools to help you manage your contracts. These include, for example, tools to help you track conformance, to manage deadlines, and to complete renewals.

Our Solution

Law Quarter offers its clients a fully automated contract management system via the Law Quarter Portal. Our Document Vault is a system that is cost-effective and highly automated. For pricing, get in touch today.

Who to Contact for More Information
Please get in touch if you have any questions on the above.

Unlock The Hidden Value Of Your External Lawyers

Unlock The Hidden Value Of Your External Lawyers

Private Law

When it comes to external lawyers it’s often difficult to navigate the trade-off between value and cost. In this article, we look at the best ways to derive value from an external law firm.

A business advisor

If all you receive from your lawyer is legal advice, you are not extracting as much value as you should be. Lawyers have the benefit of dealing with a number of clients in different industries. As a result, a lawyer can help you think about your business in new ways, ensure you are on track with your business plan and flag any potential issues before they become serious problems.

A specialist

External law firms offer access to specialists. While you may have in-house lawyers with their own skills and experience, an engagement with an external law firm allows you to leverage on the specialist experience within that firm. Typically, that includes specialist experience with litigation and dispute resolution but can also include specialist experience in areas such as energy law.

A negotiator

Your external lawyer will also be an experienced negotiator. Your external lawyer can help you negotiate the best deal with suppliers and customers having experience negotiating disputes and commercial contracts. When it comes to commercial contracts, engage your lawyer early in the negotiation process.

A connector

Your lawyer can be a great resource when it comes to connecting you with like-minded people and with businesses that can help your business grow. If you are thinking about sourcing funding from investors, ask your lawyer for an introduction. If you are trying to connect with a business in a different industry, your lawyer may be able to help you form that connection.

If you are not getting value from your lawyer then consider approaching them from one of the above perspectives. A good relationship with the right lawyer will be a long-term asset to your business.

Who to Contact for More Information
Please get in touch if you have any questions on the above.

Coastal Erosion – Are the property rights of beachside residents being washed away?

Coastal Erosion – Are the property rights of beachside residents being washed away?

Private Law

It is common for beachside residents to receive letters from the government informing them that the state now owns another tiny portion of their back (or front) yard. This will occur where residents’ land is bounded by the ocean and its boundary is ambulatory and determined by the “mean high water mark”.

The position at common law is that the land boundary changes as the position of the water’s edge changes. This is known as the doctrine of erosion and accretion. The common law position has been altered by statute and the position in Australia varies from state to state, but in NSW clause 48 of the Surveying and Spatial Information Regulation 2017 largely mirrors the common law doctrine. That is, the ambulatory boundary varies at law only if:

1) The change to the position of the water’s edge is so slow and gradual that it is imperceptible to the naked eye; and

2) The change is the result of natural processes.

The doctrine goes both ways, i.e. private landowners can also potentially acquire land if the ocean recedes over time. However, statute does operate to limit their rights in this respect if that acquisition would result in a loss of access or enjoyment by the public.

Wamberal residents

Despite the above, the doctrine can be excluded by express intention in the instrument granting the land, so depending on the terms of the initial grant to a specific lot, some properties need not be concerned with their land being eroded away (in a legal sense) at all. It is unlikely that the properties at Wamberal on the NSW’s Central Coast would be captured by the erosion doctrine in this instance in any event, given that a clear change occurred as a result of a particular extreme weather event.

Ownership rights

Therefore, despite the erosion, it is likely that the beachside residents have retained ownership of their land (as it was before the storm). However, this doesn’t mean they have unfettered rights to undertake any activities of their choice on that land, including the building of a sea wall or similar. Legal ownership of land is determined by reference to what is denoted on the Register, but the government still has the right to restrict what owners can do with their land. Most people will be familiar with the council approval process under the Environmental Planning and Assessment Act, but also relevant here is the Coastal Management Act. Basically, this means residents are at the mercy of council in respect of what they can do to protect their land.

It is not a stretch to imagine a day in the near future where the government exercises its rights to compulsorily acquire beachfront land from residents, if only to reduce the associated headaches that invariably come with it. If that day comes, we may see Dennis Denuto come out of retirement.

How to Find the Best Central Coast Law Firm

How to Find the Best Central Coast Law Firm

Private Law

When it comes to resolving a legal issue, it’s incredibly important to make sure you find a law firm you can trust. If you’re looking for the best law firm near you, keep reading. 

In this guide, we will give you some tips and tricks that can help you find a Central Coast law firm you can feel confident about. Make sure you’re in good hands by choosing the best law firm for you. 

Find an Experienced Lawyer

In order to find the best law firm for your case, you should do some research to find a specialist that will fit your needs. Identify what your legal problem is and find a lawyer that specializes in that service. You want to make sure you have a law firm that knows how to handle your legal situation with expertise. 

Someone with a speciality in your area of need will best know how your case will proceed in order to help you solve your problem. A specialist will know about the latest developments in your area of need that can help to resolve your case. The more experience they have with cases like yours, the better. 

Do some research to get an idea of the law firm’s track record with cases like yours. Take factors such as the firm’s length of service and number of cases into consideration. With experience comes the knowledge that can help develop winning strategies while evaluating risks. 

Look at the firm’s website to get an idea of their background and their accolades. Consider conducting research via Google searches or Linkedin. 

Consider Their Professionalism 

When speaking or meeting with law firm professionals, do the work to make sure they have proven to be professional and trustworthy. You should feel that you’re lawyer has your best interest in mind. The best law firm will act efficiently and economically in helping you to achieve your goal. 

Keep their professionalism in mind in terms of their actions, such as whether they arrive at meetings on time, and whether they are well prepared and organized. Communication skills are also incredibly important when looking for a great law firm. A great law firm will return your emails and phone calls in a timely manner to show you that you’re a priority. 

A great law firm team will be respectful regardless of their position, role or status. It’s important that lawyers exhibit appropriate behaviour in all situations and that they follow all the ethical standards of their practice.

A law firm that shows it is passionate about its services and your best interest will work to accomplish your goals. 

Before choosing a law firm, consider visiting or touring their office. A neat, orderly, and effectively run office will help you feel more confident in the abilities of the law firm, its staff and its processes. 

Get References for Those on Your Case

Before deciding on a law firm, it may be a good idea to review some references, either on the firm itself or the lawyer you’ll be working with directly. Ask for a few contacts of past clients you could consult to learn more about the quality of service you can expect. You could also conduct additional online research on the law firm and the lawyer’s reputation. 

The size of a law firm may determine how many hands are on a single case. At a smaller law firm, you may work directly with one law firm, while at a larger firm, you may have multiple people working on different aspects of your case. Inquire the law firm about who will be handling your case from start to finish. 

You could also ask about how the law firm uses it’s paralegals and support staff to carry out cases. Knowing more about the individuals that would be involved in your case can help you better conduct research and references

Ask About Fees and Approach

As with most business decisions, you should consult the firm about the costs of your legal matter. Ask questions about the firm’s billing procedures and methods to make sure the firm will work for you financially. Ask what kind of fees you may need to expect along the way, such as travel charges and expert fees. 

Your decision should not be based on cost alone, as the cheapest option may not be of the best quality. Once you’ve engaged with a lawyer, make sure you get a costs disclosure document that explains their billing. This will help you prepare for budgeting the case before you get started. 

Finding the Best Central Coast Law Firm

As you look for a Central Coast Law Firm, use some of these tips and tricks to find the best option for you. Feel confident about the law firm handling your case to get the best results. 

Are you looking for a modern Central Coast law firm that has the experience, passion and integrity you need? Contact us today to learn more about Law Quarter, or schedule a free consultation on our site. 

A Tokyo Ramen Dispute

A Tokyo Ramen Dispute

Private Law

The world of commercial law is complex. Rarely will you find the clarity that one might expect in a commercial arrangement. Problems often arise when commercial arrangements are not documented or when not documented correctly. If you are planning on embarking on a commercial venture, ensure that you consult a lawyer early to establish a clear legal framework.

Today we look at a dispute involving a Central Coast business. The New South Wales District Court decision of Elegant Australia Pty Ltd v Chen and; Chen v Elegant Australia Pty Ltd [2020] NSWDC 7 is a good example of the complexities of commercial litigation. We’ve examined this judgement as it relates to parties in the Central Coast of New South Wales.

The dispute giving rise to the judgement concerned the operation of a restaurant, Tokyo Ramen Erina Fair. Tokyo Ramen Erina Fair is in the New South Wales Central Coast.

The Plaintiff in this matter had executed a Deed with the Defendant which, inter alia, enabled the Defendant to derive the profits and obliged the Defendant to bear the losses of operating the Central Coast restaurant. The Plaintiff’s claim totalled $110,991.05 plus interest. The Defendant cross claimed for $89,273.30 based on entitlements she said she would have received had she been an employee of the Plaintiff during the period covered by the Deed.

The Business

During the proceedings, the Plaintiff’s director Mr Guchao Zhou and the Defendant gave oral evidence. Mr Zhou gave evidence that between April 2013 and December 2016 he managed the Tokyo Ramen business. He described his responsibilities as managing staff (including hiring, calculating wages and paying them), managing the till, ordering stock, assisting with the cooking, cleaning and waiting on customers, payment of expenses and managing accounts including providing documents to his accountant. The Defendant stated that she didn’t recall Mr Zhou ever telling her that he was responsible for cooking. She recalled being told words to the effect that in a conversation with the Defendant sometime between September 2016 and early December 2017. From 2013 until 2016 the Central Coast business ran at a consistent loss ranging between $12,000 and $47,000.

On or around 24 September 2016 Mr Zhou received a phone call from the Defendant enquiring whether or not the Plaintiff was looking to transfer its business free of charge. Arrangements were then made for the Defendant to inspect the business later the same day. The Defendant was told that the business made on average between $8,000 and $9000 gross per week. Following a further meeting the parties exchange messages by WeChat. On 26 September 2016 the Defendant requested the Plaintiff’s solicitors detail and speak to the manager of the Central Coast Erina fair centre management.

The Deed

On 9 December 2016 a Deed was signed by the Defendant. The text of the Deed provided inter alia for the provision of training to the Plaintiff and the provision of various materials. In return, the Defendant agreed to use best endeavours to have the lease assignment under her name, to make every effort to acquire the retailing skills and competency required and to follow instructions given to her by the company. Further, the Deed provided that the Defendant would be entitled to all profits generated within the training period and would be responsible for all losses and damages incurred by the business within the training period. Mr Zhou himself stated that between about late January 2017 and March 2018, at no time was he involved in operating the Tokyo Ramen business and was not aware of its actual financial position. He stated that he was not aware of what sales the business achieved or how much profits the Defendant was making and retaining per week.

On 16 July 2017 the Defendant sent Mr Zhou a WeChat message which stated:

Hello Brother Hao. I have considered this for long that I decide to stop running this restaurant by the end of September. Nobody is buying this restaurant either. I have made no money in the past seven months and my son has nobody to look after him. I have talked to my lawyer and he said according to our agreement I can quit this with no legal consequences. Can you come up with a plan for the period to the end of September ? I can work as an employee for you to March next year; I have been working very hard, which is ok if I can make money; Please reply to my message when you have time. Sorry I have tried my best.

Mr Zhou then sought legal advice from Ms Leung solicitor on or about 20 July 2017. He gave evidence that Ms Leung informed him that the Defendant could terminate the Deed and he had no legal remedy. On 25 July 2016, the Defendant sent a WeChat message complaining about the state of the Plaintiff’s accounts. Mr Zhou responded stating from the 14th “it is all yours.”

The Outcome

One of the key issues pleaded by the defendant was that Mr Zhou, on behalf of the Plaintiff, said words to the following effect in a face to face conversation between them at the site of the Tokyo Ramen business in or about October 2016:

“The Tokyo Ramen business income is about $9000 to $10,000 a week which is more than enough to pay wages, rent and expenses and still have profit. If you do better that that, you will also get that extra amount”

The defendant pleaded that the statement was a representation contrary to s 18 of the ACL, as referred to in s 27 of the Fair Trading Act 1987 (NSW). There was no claim for damages pursuant to the misrepresentation by the defendant only for a rescission of the deed, noting:

“A party seeking to invoke s 4 of the ACL is required to make clear that it is doing so as to alert the other party to the need to plead and call other evidence as to reasonable grounds. In my view, the Defendant’s pleading, in particular at [20(e)] of the Further Amended Defence, does not indicate that it seeks reliance on the evidentiary burden on the Plaintiff to establish reasonable grounds for making the representation. [191] Furthermore, it did not seek to identify any such reliance in its Statement of Issues. [192]”

There was judgment in favour of the Plaintiff in the sum of $50,690.70

Trade promotion and Competiton permits

Trade promotion and Competiton permits

Private Law

Your Free Guide To Trade Promotions

If you would like to access our complete guide to Trade Promotions in Australia simply provide your details below. 

Trade promotions or competitions require licences or permits in certain circumstances. These circumstances are set out below.

What is a trade promotion lottery? It’s a contest, a raffle, a sweepstakes, or any other promotion that has prizes and winners determined by chance. Businesses run trade promotions to encourage sales and increase engagement. 

Which rules do you need to comply with?

In short, you need to comply with all the laws of all the states and territories in which you are running a competition, even if you draw the winner in the one location. If you have a permit from any of the below you won’t need a further permit from the NT and in WA there is a deemed permit. Trade promotion permits are not required in Tas, VIC, or in QLD.

Every state and territory has its own set of obligations when it comes to trade promotions. If you are running a national competition, your competition terms and conditions must be compliant on a national basis.


If you want to run a sweepstake or contest and the total prize value is over $10,000, you’ll have to obtain a trade promotion gaming authority first. You can do that online.

To be eligible for a gaming authority, your competition must: 

  • have free entry;
  • be running a competition based on chance not skill;
  • must genuinely promote the goods or services of your business; and
  • must take place on the date nominated.

If you want to run a competition under your authority, you’ll need to provide Fair Trading a copy of the rules of the gaming activity at least 10 working days before it takes place.

If you change your rules, you must tell Fair Trading as soon as possible. If you do make changes, you must make sure they do not disadvantage existing entrants. 


If you run or advertise a trade promotion lottery in the ACT and give away more than $3000 worth of prizes, you have to get a permit from the government.

You can expect to receive a permit within 5 days of applying. If you need to change your competition after it has been approved, you will need to submit an amendment request to the ACT gaming regulator. 


You will need trade promotion permit from the regulator in SA if your total prize pool is over $5,000 or if you are running an instant win competition.

If you are using an electronic drawing system, it will need approval as well.

It can take up to 14 days for a permit to be issued in SA. If you need a permit sooner, you can pay a premium fee.

Again, if you have been issued a permit and then amend your competition terms and conditions, you will need to get the approval of the SA gaming regulator. 

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