Legal Assistance for Individuals

Legal Assistance for Individuals

Private Law

In challenging times: we work together

 

 

These are challenging times for many. Apart from the clear health impacts of the current situation, many have now lost employment and are facing financial hardship.

The purpose of this page is to provide information for individuals who have been affected by COVID-19.  If you have any feedback on the information provided on this page please get in touch.

What you will find on this page:

  • Free document generators including to request hardship assistance;
  • Information on how you can obtain free or reduced fee legal assistance;
  • Resources. 

Table of Contents

Generate a free letter requesting assistance

Complete the form below if you have lost your job and you need to request help from your bank, energy, internet, or phone provider. This is provided for free by Law Quarter.

Am I able to go out (NSW)?

Many are finding it difficult to understand the government’s latest instructions on when it is possible to go out. Use our simple tool to check.

Helpful Resources

Support Services

Beyond Blue provides information and support to help everyone in Australia achieve their best possible mental health, whatever their age and wherever they live.

Call: 1300 224 636 (24×7 Support)

Visit: http://www.beyondblue.org.au


Kids Helpline is is a free, 24×7 phone and online counselling service for young people aged 5 to 25.

Call: 1800 55 1800 (24×7 Support)

Visit: https://kidshelpline.com.au


Lifeline is a national charity providing all access to crisis support and suicide prevention services.

Call: 13 11 14

Visit: whttp://www.lifeline.org.au


WIRE stands for Women’s Information and Referral Exchange Inc. and is a Victorian (only) organisation offering free information, support and referrals for women, by women.

Call: 1300 134 130 (Monday to  Friday: 9:00am – 5:00pm except public holidays)

Visit: https://www.wire.org.au

Financial Support

National Debt Helpline: Get free and independent assistance by speaking to one of National Debt Helpline’s Financial Counsellors.

Call: 1800 007 007 (Monday to Friday: 9:30am – 4:30pm)

Visit: http://www.ndh.org.au


MoneySmart offer free, independent guidance so you can make most of your money.

Visit: https://www.moneysmart.gov.au

Free Legal Assistance

If you require legal assistance, please contact us. We may be able to assist you even if you don’t have funds to pay for legal services. For certain matters we act on a pro bono basis. Legal Aid is also an option for NSW residents. Our Principal, Connor James, is on the Civil Law and Family Law panels of Legal Aid NSW.

COVID-19: Working from Home

COVID-19: Working from Home

Private Law

COVID-19: Working from Home

COVID-19 has caused disruption to many around the world and is set to continue to do so. The consequences are multifaceted and extend into many aspects of our everyday life. 

We are now seeing more and more businesses preparing to direct employees to work from home. As those businesses dust off their business continuity plans, they are also forced to quickly consider the steps that are needed to be taken to implement remote work. 

In this post we share our experiences with a remote workforce- both the benefits and the lessons. The key is to plan, execute, and prepare to adjust your processes and policies in response to feedback from your employees. 

Table of Contents

Legal work in 2020 is nothing like it was 50 years ago. Software empowers remote work by making it easier to communicate and to provide legal services. At Law Quarter, we use Titan to review and generate contracts, Zoom for video conferencing, Slack to communicate between our teams, and Clio to track our work. 

At Law Quarter, you could say we have flexible working arrangements. All full time staff enjoy the discretion to work from home at any time and without notice. Flexibility requires trust and trust in your employees pays dividends. However, having your employees work from home does require planning and thought to be effective. 

Step One: Prepare your Systems, Processes and People

To prepare for remote work, ensure that you have the systems and processes in place to support your employees. 

Systems

Examine and evaluate the software you need to work effectively. Consider speaking to those in similar industries or companies to see what works and what does not work for them. As we note above, we use a range of SaaS  products in the delivery of legal services.  

Where you are using specialist software or proprietary databases consider implementing VPNs for staff to use to connect. 

A range of large software providers are offering free subscriptions during the COVID-19 crisis, including Zoom (see here) and others.

Security continues to be a key concern. If your employees are using laptops ensure that they have up to date software and comprehensive anti-virus software installed.  

Processes

Ensure that you have processes in place to support your clients and staff while your company operates remotely. 

This may mean changes to your existing processes and policies or the development of new processes and policies. Contact us if you would like free assistance with remote work policies and procedures. 

People

Clearly explain your plans and expectations to your employees. Give them the opportunity to participate in the decision-making process and give them the opportunity to identify and resolve potential challenges. 

Ensuring that your employees are safe is a key concern, so ensure that you have processes in place that verify the safety of their home-work set up. There are a variety of online courses available that help employees understand how to set up a safe home work-place.  Your business will remain responsible for the health and safety of your employees as they work from home.

Step two: Set up your Employees for Success

There are a variety of safety risks that need to be managed effectively for at home workers. These include ensuring that your employees are set up with a work station that is safe, that your employees have a good chair and, where possible, a standing desk, and that their monitor and desk are set up for maximum ergonomic efficiency. 

Beyond concerns with physical safety, you should ensure that your employees are supported with the mental health challenges that follow from working in isolation. Consider running ‘virtual meetings’ on a regular basis, check in with your employees to ensure that they are not overworked and overstressed and ensure that they have access to mental health services. 

Keep communication channels open to your employees. With Zoom, you can keep a meeting ‘open’ so that employees can check in with you when they need to. To do so, simply start a meeting and have your mic on mute. 

Step Three: Monitor, Engage, and Improve

You will need to continually monitor the effectiveness of your work from home program. This will involve ensuring that your employees are safe, engaged, and satisfied. 

Avoid assuming that business will operate ‘as usual.’ Adjustments will be required on an individual and organisation basis. 

When monitoring the effectiveness of your work from home program, ask yourself what you could do better and ensure that you listen to the feedback given to you by employees. That feedback may mean that you need to change the systems and processes you use and may mean that you need to make adjustments on an ongoing basis. 

Who to Contact for More Information

Please get in touch if you have any questions or concerns. 

COVID19: Contractual Obligations of Musicians

COVID19: Contractual Obligations of Musicians

Private Law

COVID-19: A Guide for Musicians

For musicians and others in the performing visual arts, COVID-19 has been disastrous. While many events and public performances have now been cancelled, resulting in a loss of income- others remain in a state of limbo.

This has left many performers wondering if they are required to attend and perform at events  scheduled over the coming months. This uncertainty has added to the already overwhelming stress experienced by these people. 

The legal concepts discussed below can work for and against musicians- a double edged sword. Musicians and other performers rely on events and gigs to survive. As a result, in many cases, the best outcome would be for event organisers and performers to work together to ensure that the industry remains viable with this, hopefully, temporary set back. This may be effected by rescheduling events or by conducting virtual events. Targeted Government support is also urgently needed.

 

Summary

If you are worried about your obligation to perform you should:

1. Review your contract;

2. Check if your contract includes a ‘termination for convenience’ or ‘force majeure’ clause; and

3. Negotiate with the organisers on a without prejudice basis – draw their attention to the risks and to possible solutions.

Finally, given the Governments recent announcements on support for small business, consider if you should register for PAYG and speak with your accountant.

Table of Contents

Termination for convenience

Your first port of call in understanding your obligations with respect to upcoming events and performances is your contract.

Should your contract expressly provide for ‘termination for convenience’ it will be open to you to rely on such a clause provided that you ensure strict compliance with its terms. A termination for convenience clause allows the benefiting party to terminate the contract for any reason. 

A termination for convenience clause removes the need to wait for a breach, repudiation, frustration, or some other stated termination trigger. When it comes to performances and events, termination for convenience is often only permitted prior to the promotion of an event.

Force Majeure is an expression that derives from French Civil Law. A force majeure clause is a risk allocation mechanism used to limit the liability of a party for events which delay, restrict, or hinder the performance of the contract – where such events are beyond the control of the parties and fall within defined triggers. 

The party seeking to rely on a force majeure clause has the ‘burden of proof.’ i.e. is required to prove that the clause has been triggered. The triggers of a force majeure event often include acts of God such as fire, storms, earthquakes, and floods, as well as civil unrest, strikes, riots, and acts of war or terrorism. As COVID-19 has and will continue to have far reaching consequences, a force majeure clause may be triggered even where the clause does not specify that an epidemic or pandemic is a trigger i.e. triggered as a result of a consequence of COVID-19.

Force majeure is different to frustration. Force majeure is a contractual construct and typically operates to suspend performance. Frustration, on the other hand, operates where the performance of the contract is impossible or radically different and termination results. As such, force majeure can only be relied upon if express provision is made for it within the contract (it cannot be implied as a term of the contract). 

 Unfortunately, as force majeure is a contractual construct, and is limited in operation by the clause itself which is often poorly drafted, a force majeure clause may not be of assistance to you. 

The common law principle of frustration may come into play where performance of a contract becomes impossible or illegal. For example, in the case of Taylor v Caldwell, a licence to use a music hall for a series of performances was held to be frustrated when the hall burnt down. As a result, the owner of the hall was not liable to reimburse the hirer for advertising expenses and the hirer was relived from the obligation to pay the licence fee for use of the hall. 

A contract will be frustrated where, without the default of either party, circumstances would result in performance being radically different from that originally contemplated in the contract. So the question is (as expressed in Brisbane City Council v Group Projects Pty Ltd by Stephen J:)  ‘how dramatic must be the impact of an allegedly frustrating event. To what degree or extent must such an event overturn expectations, or affect the foundation upon which the parties have contracted…’

In considering frustration, a court will look at whether events were foreseeable at the time the contract was made. Consequently, it will be harder to argue that COVID-19 has frustrated a contract made yesterday than it would be if the contract had been made in November 2019.  

There are some clear cases where a contract will be frustrated: such as when a musician has been given an order by a government department to isolate themselves for a set period of time that corresponds to a performance. 

The more difficult question is whether frustration occurs where there are voluntary recommendations from health officials but nothing else or perhaps where a performer’s existing medical condition may lead to their health being compromised if they were to be exposed to the virus. Where this is the case, or where you are worried regardless, the best course of action is to obtain legal advice.  If your legal advice is that you have no basis to not perform, you can then speak to the organisers on a without prejudice basis to express your concerns and to ask for a resolution. In doing so, you should be careful to not say that you are not willing and able to perform your contractual obligations.  

If you are concerned about an upcoming performance or event, you should first consider your contractual rights including under any termination and force majeure provisions.

In any event, where you are concerned, we recommend that you speak to the organiser to seek a resolution. Any such discussion should be on a without prejudice basis and you should take care to ensure that you are not repudiating the contract. If ever there were a time for people to work together and support one another, this is it.  

–  –  –

On a final note, many musicians and others in the industry are self-employed. Many in the industry are also paid cash-in-hand. If you are a small business who is not registered for PAYG (which does not mean you need to register for GST), consider doing so now. The Government’s recently announced support schemes for small business will be administered via the PAYG system- meaning if you are not registered and do not report wages, you will miss out altogether. 

Free Advice Sesions

This Thursday (19 March 2020) we will be providing free advice to musicians during 40 minute one-on-one Zoom sessions. To register your interest, complete the form below. 

Who to contact for more information

Our lawyers are here to support you with advice and representation. Please contact us if you have any concerns or questions. 

Going to court- the basics

Going to court- the basics

Criminal Law, Private Law

For most people, going to court is not an everyday experience. It can be stressful, disruptive and expensive. If you are aware that you need to go to court it is imperative that you contact a solicitor as soon as possible.

If you are going to court for a criminal matter you should check the details provided to you on your Court Attendance Notice or bail form. You must make sure that you are in the court on that date and time.  When preparing for court, you should review all of the paperwork provided to you. If you have not been given paperwork, you should ring the police and obtain a copy or instruct your solicitor to do so.

You can check your court date and time on this website. The NSW Online Registry will usually tell you which court number your matter is listed at. It will also often tell you who the presiding officer is for your matter.

You should dress neatly and formally for your court appearance. You should arrive at the court early. You will need to enter the building and go through security. You will usually find signs to the court number your matter is to be heard in.

You should bow as you enter the court room towards the registrar or magistrate. You should ensure that your phone is off. When your matter is called you should sit at the table facing the registrar or magistrate. You should address a registrar as ‘Registrar’ and a magistrate or judge as ‘Your Honour.’ If you are unsure about orders made you should ask the registrar or judge to repeat them to you.

If you have a matter listed for court, you can contact our lawyers to attend on your behalf. Ensure that you call us as soon as possible so that we can adequately prepare to get you the best possible outcome.

The right to silence

The right to silence

Criminal Law, Private Law

If you have been charged with a crime you should contact a solicitor immediately. Typically, your solicitor will tell you that you have a right to silence and will tell you to refuse to answer any questions from police. The right to silence literally means that you do not have to say anything, give information or answer questions. Even if the Police ask you a direct question, you have the right to not answer it.

Criminal lawyers

Police will typically ask you questions about whether you were at a location at a time, whether you recognise someone in CCTV footage, and what you were doing at a particular time. The right to silence means that if you refuse to answer, police cannot assume your guilt as a result of your silence.

There are some exceptions and modifications to the right. Exceptions to the right to silence include where police ask for your identification- i.e. name and address- where they have the right to do so. Also, if your car was involved in a serious crime then you are obliged to give the police details of the driver and any passengers at the time of the offence.

These days, thanks to s 89A of the Evidence Act 1995 (NSW) your solicitor may refuse to come and visit the police with you in relation to an offence that you have been, or are at risk of being, charged with.

Before the introduction of s 89A, police would issue a general caution that anything you say could be used in evidence against you and they would tell you that you have the right to remain silent. Since 1 August 2013 and pursuant to s 89A, police can now give a special caution in certain circumstances.

When police give you a special caution they will tell you that a) you do not have to say or do anything, but it may harm your defence if you do not mention something when questioned that you later rely on in court, and (b) anything that you do or say be used in evidence. This means that, after receiving the special caution, by remaining silent, you may jeopardise your defence in court if you fail to mention things you rely on during questioning.

A special caution may not be given unless you are accompanied by a solicitor who is acting for you. As a result, solicitors will often refuse to come to the police station and will prefer to give you advice over the phone.

When does the Unfair Contract Term law not apply?

When does the Unfair Contract Term law not apply?

Commercial Law, Private Law

In our previous article we examined the situations in which unfair contract term law applies. While unfair contract term laws apply to most standard form contracts and contractual terms, there are a number of excluded contracts and excluded terms. We discussed these below.

Excluded contracts:

  • Contracts entered into a date prior to the commencement of the unfair contract term laws, as applicable between consumer and business contracts, are excluded from the operation of the unfair contract term laws.
  • Contracts which are expressly excluded by section 28 of Australian Consumer Law: including contracts of marine salvage or towage, ship charter contracts, contracts for the carriage of goods by ship, constitutions of a corporation, managed investment scheme or other kind of body.
  • Contracts for financial services. Financial services are excluded from Australian Consumer Law by section 131A of the Competition and Consumer Act. Financial services are regulated separately under the ASIC Act.
  • Insurance contracts that are regulated by the Insurance Contracts Act 1984 (Cth). This act does not apply to private health insurance contracts, state and Commonwealth government insurance contracts, reinsurance contracts, and others.

Excluded terms:

  • a term that defines the main subject matter of the contract;
  • a term that sets the upfront price payable under the contract; and
  • a term required, or expressly permitted, by law of the Commonwealth, a State or a Territory.

Upfront price and subject matter are considered matters which parties exercise choice in deciding to proceed with a contract and are, therefore, excluded. This was explained in the second explanatory memorandum to the Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010:

where a party has decided to purchase goods, services, land, financial services or financial products that are the subject of the contract, that party cannot then challenge the fairness of a term relating to the main subject matter of the contract at a later stage, given that the party had a choice of whether or not to make the purchase on the basis of what was offered.

In deciding whether a contract or term type is excluded from the unfair contract terms law, it is important to consider the law as of the date that the contract is entered into as an assumption that the law does not apply may be incorrect with serious consequences.

When do the Unfair Contract Term laws apply?

When do the Unfair Contract Term laws apply?

Commercial Law, Private Law

The unfair contract term law applies to consumer contracts and to small business contracts. The law only applies to contracts that are “standard form contracts.” Standard form is usually understood to mean a document that is routinely used in all transactions without negotiation or amendment. Standard form contracts are commonly described as presented to consumers on a “take it or leave it” basis.

Australian Consumer Law expressly excludes certain categories of contract from unfair contract term law and we will consider these in our next article.

Section 27(2) provides a non-exclusive list of considerations for a court when determining if a contract is a standard form contract including:

  • whether one of the parties has almost the bargaining power in the transaction;
  • whether the contract was prepared by one party before any discussion relating to the transaction occurred between the parties;
  • whether another party was, in effect required to accept or reject the terms of the contract in the form in which they were presented; and
  • whether another party was given and an effective opportunity to negotiate the terms of the contract.

Application to consumer contracts

In the case of consumer contracts, courts will consider the purpose of the acquisition and the law will apply where the purpose is wholly or predominantly for personal, domestic or household use or consumption.

Consumer contracts are defined in section 23(3):

A consumer contract is a contract for:

  • a supply of goods or services; or
  • a supply or grant of an interest in land;

to an individual whose acquisition of the goods, services or interest is wholly or predominantly for personal, domestic or household use or consumption.

The term individual is defined in the Acts Interpretation Act 1901 (Cth) to mean a natural person.

When examining section 23(3) it is necessary to consider the purposes for which goods or services were acquired. Unlike in other provisions of Australian Consumer Law, is not necessary for goods or services to be of a personal, domestic, or household nature rather it is the purpose for which they were acquired that will be relevant at the time that the contract was entered into.

The natural assumption is that businesses will consider the inclusion of business purpose declarations whereby purchases sign a declaration to state that goods or services are being purchased for business purposes. Section 25(1) gives an example of a term that may be unfair, termed that the limits or has the effect of limiting the evidence that one party can adduce in proceedings relating to a contract. Therefore, a business purpose declaration may itself be an unfair contract term.

Application to small businesses

The law was extended to apply to small businesses on 12 November 2015. Businesses were given 12 months to comply with the law and so, it applies to small business standard form contracts that were entered into, renewed, or varied after 12 November 2016. The law applies where a contract that is between businesses:

  • is for the supply of goods or services or the sale or grant of an interest in land;
  • at least one of the parties is a small business employing less than 20 people, including casual employees employed on a regular and systematic basis; and
  • the upfront price payable under the contract is no more than $300,000 or $1 million if the contract is for more than 12 months.

The business may be the purchaser or acquirer under the contract and the business may be conducted by a natural person, a body corporate, a partnership, a trust, or a joint venture.

Citizen Reef?

Citizen Reef?

Private Law

Today LADbible launched a campaign labelled ‘Citizen Reef’ petitioning for the Great Barrier Reef to be granted Australian citizenship. The idea behind the push is to increase the Reef’s protection by ensuring it has the rights to freedom from torture, minimum standards of healthcare and the right to life, as any other citizen. We look at whether this is this merely a publicity stunt, or there is a legal basis for this argument.

The Whanganui and Ganges Rivers

Some commentators are pointing to both the Whanganui River in New Zealand and the Ganges River in India as examples. In early 2017, both rivers were granted legal personhood in their respective jurisdictions. In India, the Ganges’ status as a legal person came through a decision made by the Uttarakhand High Court and the Whanganui River was declared to be a legal person by New Zealand legislation following a lengthy consultation and settlement process involving the local iwi.

Both were significant, but can be distinguished from the Citizen Reef campaign in that the rivers received legal personhood, not citizenship. The idea of being a legal entity is different from being a citizen of a country. For example, a corporation is treated as a person by law, but this doesn’t mean a company that operates in Australian is an Australian citizen. Therefore, Citizen Reef seeks a different recognition to that seen in New Zealand and India.

Australian Citizenship Law

Citizenship law in Australia is governed primarily by the Australian Citizenship Act 2007 (Cth). Broadly, it provides that people become Australian citizens in three ways: 1) by operation of law; 2) by descent; and 3) by conferral. It is difficult to see the Reef being successful in receiving citizenship under any of these mechanisms, primarily because the Act is designed for granting citizenship to natural persons. While the term ‘person’ is not defined, it would be a stretch to argue that its natural ordinary meaning as it appears in the Act extends to a geographical area or natural landmark like the Reef. Even if this hurdle was cleared, it is difficult to conceive how, for example, the Minister could be satisfied that the Reef possesses a basic knowledge of the English language, or is of good character.

Citizenship for the Reef appears next to impossible under the current framework. However, it is likely that the Federal Legislature possesses the power to enact an entirely new law that would grant citizenship to the Reef, provided there is sufficient parliamentary support.

Citizenship and Rights

If the Reef were to be granted citizenship, it is questionable whether it would receive the rights and protections that Citizen Reef seeks. While Australian citizenship does confer certain rights, like the ability to apply for an Australian passport, or stand for Parliament, the Reef wouldn’t automatically receive the right to life, or freedom from torture by virtue of being a citizen.

Australia doesn’t have a bill of rights, so many of these basic protections or human rights only form part of Australian law due to international treaties or conventions.

Conclusion

Citizen Reef appears to be more of an exercise to raise awareness for the Reef’s plight, than a genuine attempt to gain citizenship. Firstly, it is important to recognise the difference between personhood and citizenship – citizenship traditionally being limited to natural persons. Secondly, even if citizenship was conferred on the Reef, it doesn’t automatically follow that it would benefit from basic human rights.

While the idea of citizenship might be a stretch, a declaration that the Reef is a legal person, like the Whanganui River, is a more realistic goal. While this wouldn’t allow it to benefit directly from what are considered human rights, there is no doubt that being considered a person in the eyes of the law would give the Reef greater legal protection.       

How do I change my solicitor?

How do I change my solicitor?

Private Law

When faced with a legal problem, it is important you feel that your concerns are being heard and you are receiving the best possible representation. If you are unhappy with your current solicitor, you may consider seeking advice or representation from an alternative law firm.

Reasons for changing

There are a number of reasons why you might wish to consider changing solicitors:

  • You believe that your solicitor has been dishonest or misleading;
  • You feel that you have been overcharged;
  • Your solicitor has ignored or acted contrary to your instructions;
  • You believe that your solicitor may have acted unethically or breached the Solicitors Rules.
  • You feel that your solicitor has been unresponsive, or has not given you quality advice.

While any of the above are valid reasons for wanting to change solicitors, a decision to switch is extremely important and should not be undertaken lightly.

The transfer process

Although it is a big decision to change your legal representative, the process is simple.

  • You should do your own research on a law firm before you approach a new solicitor. It is important that you ensure that they will provide better service in the areas that you believe your current solicitor is lacking.
  • Approach your new solicitor and tell them that you currently have legal representation, but are unhappy and considering a change. This is a good opportunity to determine whether your potential new solicitor is personable and to explain why you are unhappy with your current solicitor. It is possible that your desired new solicitor may advise that you would best served remaining with your current solicitor.
  • After speaking with your new solicitor, if you still wish to change, you need to notify your current solicitor that you want them to cease acting for you. Your new solicitor can draft a letter informing your current solicitor on your behalf.
  • Your new solicitor will ask you to sign a costs agreement and send a letter and an ‘uplift authority’, signed by you, to your old solicitor requesting that they release your file.
  • If you still have outstanding legal fees owing to your old solicitor, they have a right to retain possession of your file. If you are not in the position to pay those costs, your new solicitor can draft an agreement which secures your old solicitor’s payment at the conclusion of the proceedings in exchange for the release of your file.

Changing solicitors is relatively easy, but it is still a big decision. Being unhappy with what your solicitor has told you, is not itself a good reason for changing lawyers. Remember that a good solicitor will always give forthright and honest advice, even if it is not what a client wants to hear. If you are interested in changing solicitors and believe that we can help, please enquire here and we would be happy to arrange a meeting or teleconference.