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Creevey Russell

INLAND RAIL – QUEENSLAND RESUMPTIONS

IT’S COMING LIKE IT OR NOT: YOUR GUIDE TO WHAT TO DO
Queensland position:
While about two third of the route from Melbourne to Brisbane will use existing rail corridors, in Queensland the position is different and will require substantial compulsory acquisitions (resumptions)  in relation to the following Queensland stages: –
– NSW border (Yelarbon) to Gowrie.
– Gowrie to Helidon
– Helidon to Calvert
– Calvert to Kagaru
– Kagaru to Acacia Ridge/Bromelton
The Yelarbon to Gowrie stage is currently attracting the most concern because of its potential impact on the viability of agriculturally important and valuable Condamine flood plain properties. Equally significant impacts will likely be caused in all stages depending upon the specific and differing impact of resumption on each particular affected landowner.
Purpose and Objective of this Publication
The objective of this publication is to assist any affected parties in making sure you are in a position to achieve the best outcome from any resumption of your property.
We will briefly outline the process and make general suggestions as to the types of preparatory action you should be talking at various stages in the process.
The impact of a resumption can differ vastly from property to property. For example if the resumed land is in poor country and on the boundary of the property so that it has no major impact upon the operation and viability of the property, the position is comparatively simple. It is a case of just making sure you get proper compensation for the value of the resumed land. On the other hand if the resumed land bisects the property it is likely that it will present much more complex issues. Those issues include: –

Access difficulties in trying to operate a property divided by rail line.
Impact on water flows and consequential ramifications including economic, environmental or  erosion .

Ongoing economic impact on the cost of operation and ease of management of a divided property.

Process Steps
While there is no legal obligation on the constructing authority (i.e. the party making the resumption) to consult with affected parties prior to issuing a formal notice of intention to resume, the Australian Rail Track Corporation (ARTC) has indicated that it intends to work with the Queensland constructing authority which will be making the required resumptions (Constructing Authority) to consult with affected landowners during the design process.
If your property is likely to be seriously impacted by a proposed resumption then it will be important for you to engage seriously in this informal process as the Constructing Authority may be prepared to agree to variations of modifications that will minimise the impact of any resumption on your operations. We understand that this process has commenced but in many cases without resulting in any significantly useful outcomes for affected landowners.
In order to get the best outcome it will be necessary for you to obtain experienced accounting advice as to the likely impact of the resumption on the ongoing profitability of your operations even at this early stage. If the constructing is already can see you have a significant claim for compensation because of the resumption, it is likely to make them more responsive to changes in order to minimise the likely compensation claim.
Notice of Intention to Resume
The Constructing Authority is required to give you a notice of intention to resume your land. Once that notice is served you have the right to make an objection in writing to the land being taken before a date not less than 30 days after the date of the notice
Matters pertaining to the amount or payment of compensation are not grounds for objection. In general term objectors are entitled to procedural fairness by the Constructing Authority. Despite that in the case of a project such as the Inland Rail our view is that it will only be in exceptional cases that the objection process is likely to totally prevent a resumption. The objection process may however in some cases result in meaningful amendments to the proposed resumption area.
If no objections are made or if after due consideration ,  the Constructing Authority is satisfied the resumption should proceed then the Constructing Authority can apply to the relevant minister to take the land by means of a gazette resumption notice. This application is required to be made within 12 months after the notice of intention to resume is served
Gazette Resumption Notice – Compensation Rights
From the date of the publication of the relevant gazette, title to the resumed land passes to the Constructing Authority. Parties having an interest in the resumed land whether as owner ,lessee, mortgagee or easement holder have a right to claim compensation under the  Acquisition of Land Act !967 (the Act. The amount of compensation can be negotiated between the claimant and the Constructing Authority subject to consent of any mortgagee.
Making a Claim for Compensation
If the claimant is not able to negotiate the amount of compensation , the onus is on the claimant to serve on the Constructing Authority a written compensation claim within three years of the land been taken. The compensation claim must set out various matters set out in section 19 of the Act. In practical terms to key matter is an itemised statement of the claim showing the nature and particulars of each item as well as the total amount of compensation claimed.
In order to maximise the prospects of successfully and promptly negotiating settlement of a compensation claim at the maximum realistic figure it is important that the claim is prepared with care and proper professional advice where the resumption will put at risk or result in the loss of some form of animal welfare certification or approval  (such as the RSPCA) or an organic certification or approval the economic loss will be significant. In these and any other cases where the resumption impacts the viability of a business enterprise conducted on the remaining part of the resumed land, it will be vital to obtain specialist accounting advice from accountants experienced both in resumption and also more importantly the complex financial modelling applicable to the relevant industry be that agricultural or some other business. This is imperative in order to fully and properly determine the full extent of ongoing business losses. Some cases will also involve not just establishing the value of the resumed land and economic business losses but may also involve the cost of acquiring replacement land and relocation costs.
Legal, valuation and other professional fees and costs reasonably incurred by the claimant in properly preparing and filing a claim are able to be claimed and so claimants will not be out of pocket for expenses properly incurred.
In many cases it will be of significant financial advantage to ensure that the compensation claim is made and payable in a particular manner to ensure that it does not become taxable. We will be shortly adding a further section to this Guide, contributed by the Toowoomba office of RSM . RSM are very experienced in this type of resumption work and this section will set out some of the key factors for you to consider both in terms of calculating economic loss and ensuring tax effective structuring.
Referral to Land Court
The preferred course both in terms of time and cost is to resolve claims by negotiation with the Constructing Authority.  The actions we have suggested above and our approach to these matters are designed to maximise the prospects of negotiating a claim with the Constructing Authority for the highest realistically achievable amount.
If the claimant and the Constructing Authority are not able to resolve the claim either the claimant or the Constructing Authority can refer the matter to the Land Court for de termination. This can be done at any time after the claim has been lodged with the Constructing Authority.
Our Approach
Our approach is as follows: –

Firstly to focus upon the specific circumstances and details of each individual claim in order to fully understand the impact of the resumption on the individual property. Only by adopting this approach can your claim be fully and properly made and the proper amount of compensation paid. Put shortly resumption claims are not sensibly dealt with by class actions because the impact of resumption differs so greatly from property to property.
Secondly in cases where the resumption will have a significant impact on the profitability or viability of an agricultural or other business enterprise, we believe it is critical to obtain the best financial advice in order to determine the full ongoing financial impact of the resumption. It is vital that this advice is both detailed and more importantly robust so that it will stand up to critical review by the Constructing an Authority and its advisors. In this regard we can confidently recommend RSM Australia Pty Ltd. We are confident Will Laird and David Lethbridge in the Toowoomba office have the required specialist experience in such matters and are familiar with local rural and other businesses
Thirdly in relation to valuations again it is important to engage valuers who are experienced in resumption matters and with knowledge of the local area. We have identified a number of local valuers who have a very good track record in producing valuations which are reliable and most importantly stand up to scrutiny in circumstances where other parties are seeking to challenge the valuation.
Fourthly we strongly believe in the old adage  “That  a champion team will always beat a team of champions” For that reason we have established strategic working relationships with the other vital professional advisors needed in these matters namely accountants and valuers.

What this approach means to clients is that we have the ability to deliver a complete local team (working as a team) and with all the needed skills and local knowledge to deliver the best outcome.

Making sure you know what IS and what IS NOT captured as “Building Work”

The Supreme Court’s recent decision in Waterford PPG Pty Ltd v Civil Constructors (Aust) Pty Ltd [2020] QSC 8, provides further clarity as to what is and what is not included as “building work” under the Queensland Building and Construction Commission Act 1991 (Qld) (the Act) – providing essential guidance as to what work requires an appropriate licence under the Act.
Background
Waterford PPG Pty Ltd (Waterford) entered into a contract with Civil Constructors (Aust) Pty Ltd (Civil Constructors) for the construction of roadworks, drainage, sewerage reticulation, water supply, conduits and stormwater quality for a 51 lot subdivision located at Ellen Grove, Queensland.
After a dispute arose following a payment claim and payment schedule being issued, Civil Constructors made an application for adjudication for the disputed owing amount. The adjudicator found in Civil Constructor’s favour and, as a result, Waterford appealed the Adjudicator’s decision to the Supreme Court.
What the Court considered?
Waterford argued that pursuant to s.42 of the Act, Civil Constructors could not carry out “building work” as defined under the Act because they did not hold the necessary licence to conduct sewerage works. Given the breach under the Act, Waterford argued that Civil Constructors had no entitlement to make the application for adjudication and the contract between the parties was unenforceable.
Civil Constructors argued that the sewerage works undertaken were not “building work” for the purposes of s.42 of the Act. Instead, they said the exceptions contained in clause 11 of Schedule 1 of the Act excluded sewerage systems from the definition of “building work”. This was because Civil Constructors did not conduct works which involved a connection of a sewer system to any particular building or proposed building.
What was the decision?
The works undertaken by Civil Constructors involved the installation and connection of waste tanks to the pressure sewer mains in proposed streets within the subdivision.
Civil Constructors’ installation of the waste tanks themselves did not constitute a structure which amounts to connecting a building to a main of that system and rather, fell within the constructions of the sewerage system which requires additional work to be undertaken to connect any building or proposed building.
At the time Civil Constructors undertook the works, there was no proposed building or even the existence of proposed subdivided lots. The Court also considered that if “building work” was to include undertaking work involving the construction of a sewerage system (including the installation of waste tanks and connections to pressure mains), this would specifically defeat the express wording of the exceptions to “building work” as contained clause 11 of Schedule 1 of the Act.
Accordingly, Boddice J dismissed Waterford’s appeal and found:

Civil Constructors did not contravene s.42 of the Act;
Civil Constructors undertook the works pursuant to the contract and therefore was entitled to dispute the payment schedule under the relevant Act; and
The adjudication application was properly made and the adjudicator had jurisdiction to make her decision.

How can Creevey Russell Lawyers assist?
Irrespective of whether you are a Principal or Contractor, the works you are undertaking or works conducted by a contractor may be captured by the definition of “building work” under the Act. This of course is relevant to enforcement mechanisms most appropriate or available should a dispute arise resulting from a payment claim or payment schedule.
If you would like further information, we recommend getting in touch with the team at Creevey Russell Lawyers by contacting our office on (07) 3009 6555 or emailing [email protected]

Jakob Mignone
Paralegal
Ph:   07 3009 6555
Email: [email protected]

Josh Mountford
Associate
Ph:   07 3009 6555
Email: [email protected]

Prepared by Jakob Mignone and settled by Josh Mountford of Creevey Russell Lawyers. The contents of this article are for general information purposes only and do not constitute legal advice.

How to navigate your business and commercial contracts or agreements through COVID-19

With the rapid economic shockwaves of COVID-19 being felt around the world, many businesses in Australia will experience how COVID-19 will impact their current and future business contractual obligations.
Trade, supply or distribution agreements, or commercial contracts often contain a provision called a force majeure clause. If a force majeure clause is not included or applicable, parties to an agreement may attempt to rely on common law relief based on the doctrine of frustration.
What is a force majeure clause?
A force majeure clause contained in a contract or agreement will define what a “Force Majeure Event” is, thereby governing what circumstances the parties have decided relief should be available from performance of their contractual obligations following an unexpected or unforeseen event.
A Force Majeure Event typically captures:

an act of God (including weather events);
acts of war or acts of public enemies;
terrorist acts, riots or civil commotions; or
industrial actions which involves a blockage, labour disputes or strikes,

which are not caused by and are outside the control of either party to the contract or agreement.
Relief from COVID-19?
Given the World Health Organisation has declared COVID-19 a “pandemic”, some force majeure clauses may provide relief to parties if they are appropriately structured. For example, a Force Majeure Event, if drafted to cover a wider spectrum of events, may include events such as a “pandemic” or “epidemic”.
The continuous impact of COVID-19 also has the ability to trigger events, trade controls or operating restrictions which are out of the control of the contracting parties. For example, measures which have already been put in place with respect to the Government mandating forced business closures for particular industries.
It is important for contracting parties to review their contracts or agreements to ensure that future unforeseen events may be covered by a force majeure clause and to explore whether any relief may be available given the wide-spread impacts of COVID-19.
Still feeling frustrated?
If a force majeure clause does not provide either one or both of the parties relief during this unprecedented COVID-19 crisis, parties may be able to rely upon the doctrine of frustration instead.
In Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696, Lord Radcliffe described frustration as occurring whenever the law recognises:
“…that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract…”.
It is important to note that parties cannot simply rely on a contract being frustrated as relief if one party merely faces an increased financial burden to perform their obligations under the contract. A frustrating event must directly relate to and make it nearly impossible for a contracting party to perform its obligations. For example, if the Government issues a COVID-19 compliance ruling, performance by one party to a contract may become unlawful.
It is also important to bear in mind the nature of frustration. Frustration can only arise where the performance of the contract cannot continue in the manner intended by the parties. Where the parties have included a force majeure clause, the inference has to be that they have turned their mind to the manner in which the contract might be frustrated and have provided for those eventualities. Therefore, a higher level of event would be required to invoke the doctrine.
How can Creevey Russell Lawyers assist?
There is not a blanket solution for all businesses who continue to operate during this COVID-19 crisis.
We recommend you get in touch with the team at Creevey Russell Lawyers to discuss whether you have the ability to exercise any rights under a force majeure clause in your contract or whether performance of your contract will be hindered by frustration. Please do not hesitate to contact our office on (07) 3009 6555 or [email protected]

Jakob Migone
Paralegal
Ph:   07 3009 6555
Email: [email protected]

Josh Mountford
Associate
Ph:   07 3009 6555
Email: [email protected]

Prepared by Jakob Mignone and settled by Josh Mountford of Creevey Russell Lawyers. The contents of this article are for general information purposes only and do not constitute legal advice.

FAMILY REPORT INTERVIEWS AND OTHER ATTENDANCES UPON FAMILY CONSULTANTS DURING THE COVID-19 HEALTH CRISIS

In the event the Court has determined that your matter shall be progressed with the assistance of a Court based Family Consultant, such as the preparation of a Family Report, a ‘Child Inclusive Conference’ etcetera, the Court has adopted processes that will allow this process to continue.
The Court has recently advised that:

Interviews with adult parties will generally occur on a separate day via telephone and will be staggered;
In adhering to the principles of social distancing, interviews with children and parent/child observations must be limited to a maximum of 1.5 hours with the same individual(s);
Observations will likely occur in a separate room to that used for the interviews with children; and
To the extent possible, taking into account the age of the child, Family Consultants are to adhere to the principles of social distancing by keeping an appropriate distance (i.e. at least 1.5 to 2 metres apart). There should never more than eight people in the room other than the Family Consultant at one time.

Clare Creevey
Principle
Ph:   07 3009 6555
Email: [email protected]

Vivianne Tonscheck
Senior Associate
Ph:   07 3009 6555
Email: [email protected]

CONDUCT OF YOUR FAMILY LAW MATTER DURING THE COVID-19 HEALTH CRISIS

It is widely accepted that a large proportion of family law matters resolve without going to Court.
The avenues available to parties and their Solicitors to resolve matters remain in place. We will continue to advise clients and conduct negotiations, conferences and mediations.
Conducting negotiations, mediations and conferences by video conferencing and telephone was a common occurrence prior to the current health situation and will continue to be available as an option to parties to resolve their family law matter.
Court proceedings continue, but the manner in which they operate has changed.
The principle basis upon which work will be conducted in the Courts in the near future will be by telephone, and when it becomes possible, by videoconferencing.
Only urgent matters will be dealt with by face-to-face hearings or interviews, which will be conducted pursuant to the Court’s face-to-face in-court protocol, which can be found on the websites for the Family Court of Australia and Federal Circuit Court of Australia.
The Family Court and Federal Circuit Court continue to review and revise their procedures so as to accord with any restrictions imposed by the Government and keep parties and Court staff safe and healthy.
Telephone appearances by parties is a process that has been facilitated by the Court for many years. The Court is already adept at conducting appearances with parties appearing by telephone for what was generally deemed ‘simple’ Court events.
Court Registrars are experienced at conducting ‘conciliation conferences’ (property mediations) by telephone.

Clare Creevey
Principle
Ph:   07 3009 6555
Email: [email protected]

Vivianne Tonscheck
Senior Associate
Ph:   07 3009 6555
Email: [email protected]

 

PARENTING ARRANGEMENTS AND THE RESTRICTIONS ON ENTRY TO QUEENSLAND

To slow the spread of the COVID-19 virus, from 26 March 2020, the Queensland Government implemented restricted entry to Queensland via its borders.
These restrictions will affect parents in situations where travel interstate to or from Queensland is required to facilitate children’s time with a parent.
Parents for whom interstate travel is a facet of their children’s care arrangements should be aware of the following:

At the date of this article, children or parents who live interstate (outside Queensland) and who are required to travel to Queensland to spend time with a family member/parent are to be issued an entry pass to be permitted to enter Queensland. However, there does not appear to be any avenue to apply for an entry pass if there are no Court Orders governing parenting arrangements.
A parent or child that is required to travel interstate from Queensland may do so. As existing Queensland residents, they will then be permitted to regain entry to Queensland as a returning Queensland resident.

Self-quarantine
Anyone who arrives in Queensland (via air, sea, rail or road) from another State or Territory from 26 March 2020 must self-quarantine for 14 days, unless they are an “exempt person”.
 Who is exempt from the requirement to enter quarantine for 14 days?
Those living outside of Queensland who provide critical services to Queensland:

National/state security
Essential health services
Emergency services
Transport of goods or freight including food
Critical maintenance/repair to critical infrastructure in Queensland
Construction, mining/energy/agribusinesses (and see below for specific requirements for FIFO workers in these sectors)
Federal, state or local government workers who are required to enter to Queensland to perform official duties.
There is a ‘general grounds’ exemption for those living outside Queensland who are “required to comply with the law to travel to Queensland, for example, Family Court”. This appears to restrict the entry to Queensland to parents who are travelling to facilitate children’s care arrangements that are set out in Court Orders.

It is important to note that even an “exempt person” must self-quarantine on their arrival in Queensland if they have:

travelled outside Australia;
travelled to any part of Australia that is deemed by the Chief Medical Officer (and published on Queensland health website in the future) as a travel destination from which parties are required to self-quarantine on return; or
They have been exposed to the COVID-19 virus.

The Queensland Government ‘border restrictions’ factsheet can be accessed here.
As the State and Federal Governments continue to reassess restrictions on a daily basis, we recommend that you make the necessary enquiries to ensure that you are equipped with the most up to date information on travel, travel restrictions and any other Government restrictions before planning or undertaking travel during the COVID-19 health crisis.

Clare Creevey
Principle
Ph:   07 3009 6555
Email: [email protected]

Vivianne Tonscheck
Senior Associate
Ph:   07 3009 6555
Email: [email protected]

YOUR OBLIGATIONS UNDER PARENTING ORDERS DURING THE COVID-19 PANDEMIC

The restrictions imposed by the Government and the need to ensure that children and family members are not exposed to risk of COVID-19 virus have placed a significant burden and worry on all parents.
In addition, parents whose children are the subject of Parenting Orders have the significant worry about how to be safe, compliant with Government restrictions and compliant with their obligations under family law Orders.
Each and every matter is different and one family’s circumstances will never exactly match that of another. This is not new and is, in fact, what the Courts and Solicitors who practice in this area appreciate and are adept at dealing with.
First and foremost, the primary consideration is of course the best interests of children which includes ensuring that they are safe and not exposed to unacceptable risk of harm.
As a result of the COVID-19 pandemic, there appears to be a greater likelihood that parents will be faced with situations that make compliance with Orders difficult, or even impossible. Schools, day care centres and contact centres may be closed. Interstate travel for a child’s time with a parent who lives interstate may be problematic. There may be the concern that a parent or other family member has been exposed to the virus and could possibly pose a risk of transmission to others.
If possible, communicate with the other parent, even if by email, SMS text or some such other platform. A good flow of information is likely to reduce uncertainty, enhance ‘co-parenting’ and ultimately, reduce conflict.
Try to think of practical solutions. If a location for changeover is no longer available, try to think of a suitable alternate. If one parent is self-isolating as a precaution, try to accommodate different dates for their time with the children. Remember, a parent’s time with the children is not just for that parent’s benefit – it is ultimately for the benefit of the children.
If you are able to reach an agreement on alternate arrangements, confirm that agreement with each other by email, SMS text or some such other written format. Doing so will again add certainty, which often helps reduce conflict.
If time with the other parent is missed, consider a proposal for make-up time , with dates to be discussed and determined when restrictions and the health concerns have eased.
If you are having difficulties discussing issues with the other parent, consider seeking the assistance of a mediator or a Solicitor. A skilled family law Solicitor should work with you to find and achieve solutions. Mediations can be convened urgently if a matter is pressing.
In some matters, it may be necessary to file an urgent Application with the Court. The Family Law Courts have procedures in place for matters that require urgent determinations.
Never hesitate to seek the assistance or advice from a Solicitor with the requisite skill and experience in family law. Seeking assistance does not immediately propel you into further conflict. Sound, pragmatic advice is often found to be a comfort to parents unsure as to what steps to take and often, a Solicitor can assist in resolving the issue/s without you ever having to darken the steps of a Family Law Court.

Clare Creevey
Principle
Ph:   07 3009 6555
Email: [email protected]

Vivianne Tonscheck
Senior Associate
Ph:   07 3009 6555
Email: [email protected]

COVID-19 SCAMS – BEWARE

Coronavirus (COVID-19) SCAM
This is a time of great uncertainty and introspection. As we face an unprecedented health crisis, unlike any we have seen in the last century, we must not only take measures to protect ourselves and others from the disease, but also from those who seek to benefit from the ongoing harm in the community.
The World Health Organisation (“WHO”) has released an official statement regarding scam emails and “phishing” by individuals and groups purporting to be the WHO and seeking donations to assist those affected by the virus and in the pursuit of research funding towards a vaccine.
We must all be careful in these unprecedented times in our lives. Many of us feel the need to donate to the cause. Those who donate should be commended for the collective effort to band together as a nation support of our fellow man.
That being said, where there is tragedy, there is empathy, and people with a lesser moral code see this as an opportunity to pray upon the kind heartedness of others.
Please make sure any donations you make are to a valid organisation. DO NOT donate to websites that appear in any way to be illegitimate. Try to avoid donating to sources solicited through emails. ALWAYS verify the source you intend to donate too through legitimate websites, like the government or recognised charitable organisations. Legitimate websites have specific details in their IP address that will help you verify the validity.
For example, the WHO will never contact you via email except with an @who.int address. Anything after the @ symbol that is not who.int is not a legitimate email. They do not operate .com or .org addresses.
Please remain vigilant to these scams and others and report any emails that concern you to the actual organisation from which they purport to represent.
Everyone needs to be especially vigilant in these times, both with our own health, the health of others and against the pathetic individuals and groups who would seek to profit from this international crisis.
 

Michael Burrows
Senior Associate
Ph:   07 3009 6555
Email:[email protected]

CORONAVIRUS PENALTIES IN QLD

NEW CORONAVIRUS PENALTIES IN QLD
As somebody who suffers from both Type 1 Diabetes and immune system vulnerability, the continuing selfishness of some irresponsible members of our community in relation to quarantine and social distancing is extremely troubling.
We have now seen State Governments around the Country imposing penalties for people who are breaching quarantine. Queensland Police have now been given powers to issue an “on the spot fine” to individuals of $1335 and corporations $6672.50 under the Public Health Act 2005 (Qld) for breaches of the state imposed restrictions. These fines can increase up to 10x for subsequent breaches.
Police and Queensland Health have undertaken more than 2000 compliance checks since Monday, 23 March 2020.
Is the deterrent of a financial penalty sufficient to prevent these individuals from potentially spreading this pandemic? We are talking about businesses being shut down, people losing jobs, homes and most importantly, lives.
We have to face the reality that as long as COVID-19 continues to spread, everyone is effected. Will a $1335 fine achieve anything meaningful? Should the government consider legislation imposing higher penalties, including potential imprisonment?
If someone can go to jail for endangering others by doing things like drink driving, why shouldn’t someone who knowingly puts us all at risk face the same reality?
Let’s look at the end game, stopping the spread of the virus. The Government has taken drastic, but necessary steps to shut borders, businesses, schools and other institutions. Surely anyone who doesn’t recognise the seriousness of the situation, and is willing to risk the lives of people like me and you should face real and significant consequences.
 

Michael Burrows
Senior Associate
Ph:   07 3009 6555
Email:[email protected]

The Wheel of Justice Turns Slowly: The Court’s Response to COVID-19

It is common practice that criminal matters before the Courts must be dealt with in an expeditious manner, as justice delayed is justice denied. However, in light of the recent COVID-19 pandemic, the Queensland Judiciary has made the decision to do just that… delay justice.
As of 23 March 2020, Queensland criminal courts have been operating in a reduced capacity, as the whole world is in the process of making arrangements to reduce the transmission of COVID-19. Whilst each court has their own nuances, the general guidelines are summarised in Magistrates Court Practice Direction No. 2 of 2020.
These changes, which are in place indefinitely, consist of the following changes (to name a few):

All jury trials are suspended, and Defendants are encouraged to apply for Judge Alone trials where appropriate;
All legal practitioners have leave to appear via telephone;
Legal practitioners are encouraged to finalise sentencing matters via telephone or audio visual link (AVL);
All summary trials in the Magistrates Court will be adjourned for a period of 3-months;
Prison visits will be via telephone or AVL;
Sentences where the Defendant is at risk of going into custody are to be adjourned.

Whilst these directions will dictate the way (and significantly, the timeframes) in which matters will be resolved, where a Defendant is in custody, the Court will still hear urgent bail applications, or sentence hearings where there is a likelihood the Defendant would be released from custody on or near the sentence date.
This same principle is being applied in reverse, i.e. when a Defendant is on bail and in the larger community, and is likely to receive a period of imprisonment when sentenced, that sentence will be adjourned for a period of 3-months. The logic being, is the imprisonment of persons currently in the community would inevitably lead to the introduction of COVID-19 into the prison system, an event which needs to be avoided.
The Queensland Court system is already bottle-necking, and these directions are only going to augment the backlog of cases when things return to normal. However, we are in the midst of what is the greatest non military risk to life since the Spanish Influenza in 1918, and when faced with unprecedented risk, unprecedented changes need to occur.
At the end of the day, human preservation will always trump justice and the Courts have taken appropriate steps to ensure it remains functioning (albeit at a reduced capacity). That being said, those charged with minor offences who intend to plead guilty, and a sentence of imprisonment is not within range, can still finalise their matters promptly.
If you, or someone you know, has been charged with a criminal offence and require competent representation, do not hesitate to contact the team at Creevey Russell Lawyers on 07 3009 6555 or 0436 665 939.

Craig van der Hoven
Lawyer
Ph:   07 3009 6555
Email: [email protected]

Why Do I Need Business Terms and Conditions?

Business terms and conditions are basically your terms of trade, your contract with your clients.  Payment for the supply of goods and services is what keeps a business running, unpaid invoices cause cash flow issues and can impede the success of a business.
Too often we see businesses negatively affected where they do not have terms and conditions which could otherwise have assisted them and minimised their losses.
Why should I have Business Terms and Conditions?
Terms and conditions should be used for each transaction your business enters into with your customers (or clients) before you commence work.
They exist to protect your rights and further your interests.  They can allocate risk to parties in the event of a dispute or disagreement and avoid frustration when conflict arises.  Your business terms and conditions should cover a wide range of issues as set out below and be adequately drafted to provide the best protection for your business.
Benefits of having Business Terms and Conditions
A well drafted set of terms and conditions can define the entire relationship between supplier and customer from the start and through any ongoing relationship.  From what product or service is being supplied and how and when payment is made and what the obligations of each person are. Having well drafted terms and conditions in place at the outset of a transaction with your customer can minimise disputes later on in the working relationship.
Things to consider
Prior to drafting the following items should be considered at a minimum:

Who are the parties?;
What are the products or services you are supplying and what legislation is relevant to these products and services?;
How do you want to enforce non-payment?;
What happens in the event of a dispute between the parties?; and
What happens in the event of bankruptcy and liquidation of your customer or you?

Key Terms and Conditions
The following are examples of some key matters that should be covered in an effective set of business terms and conditions:

A clear definition of your products and services;
Payment terms and your rights to charge interests on amounts owing to you under your contract;
Warranties and guarantees;
Delivery terms; ;
Default provisions;
Quality of goods (if applicable);
Defects and damage ;
The passing of ownership and risk of the goods;
Intellectual property rights (if applicable);
How the contract can be terminated;
Any fixed term of the agreement (if applicable); and
Relevant laws that govern your contract or your business or that you are required by law to disclose, such as Competition and Consumer Act 2010.

Your business terms and conditions should be specifically drafted depending on your business and what products and services you provide to your customers and the manner in which you provide them.
Many seemingly minor issues that are relevant to most business will be covered in business terms and conditions and will save business owners time, stress and money when a dispute arises down with a customer down the track.
Regular Reviews
As the laws applicable to your business and your business itself will change over time, your business terms and conditions should be reviewed to ensure they are still relevant.
Reviews should be conducted against new industry regulations or changes to legislation which affect your particular business.
If you require any assistance with the drafting or enforcing any terms of trade or with any other commercial legal issue, please do not hesitate to contact our dedicated commercial team.
 

Helen Kay
Partner
Ph:   07 3009 6555
Email: [email protected]

Grace Hobbs
Lawyer
Ph:   07 3009 6555
Email: [email protected]

 

Do I Need a Heads of Agreement?

What is a heads of agreement?
A heads of agreement is generally a non-binding document prepared in anticipation of entering into a further agreement. The heads of agreement sets out the terms and conditions between the parties who will be subject to the further agreement as well as detailing the intention or purpose of the further agreement and the key terms and conditions that will apply to the transaction. Heads of agreements are usually prepared for various commercial transactions including but not limited to asset sales, land transactions, business contracts, partnerships, investments and majority of contracts with a commercial nature (read our article on the 5 Stages of a Business Sale by following the link).
Is it binding?
Although a heads of agreement is not intended to be binding it is still a legal document and therefore is subject to the principles of contract law. If found in court that the Heads of Agreement satisfies the three elements that constitute a formal contract you may be bound to the obligations in the agreement. For this reason, to avoid any doubt, your heads of agreement should include a statement somewhere within the document stating that the parties agree and acknowledge that the heads of agreement either is or is not binding on the parties.
Benefits of having one?
Heads of agreement set out the terms and conditions of an agreement prior to a contract being prepared. Having a heads of agreement in place can save time and money in the drafting process of a further contract. A good heads of agreement will address the pressing commercial issues agreed by the parties. When prepared to this standard it is generally safe to say the main aspects of the agreement have been addressed and therefore will not require significant negotiations later down the track.  If majority of the terms and conditions have been ironed out in the heads of agreement it will prevent additional work for your lawyer in negotiating and drafting the terms of the formal agreement, which will in turn save you money.
When a heads of agreement is well drafted it will minimise the risk of any crucial terms important to either party being left out.
Additionally, having a heads of agreement in place means that both parties will know the intention of the formal agreement. This means when the formal agreement is being prepared there should be no significant differences in the expectations of the parties and therefore no delays in a formal agreement being finalised and signed.

Illegal Tree Clearing: Farmers and Land Owners Beware

The recent Queensland District Court Appeal decision of Baker v Smith (No 2) [2019] QDC 242, involving fire breaks sends a stark warning to all landowners about the penalties and costs for illegal tree clearing.
While many disagree with the impact of the various amendments to the Vegetation Management Legislation the reality is that these laws are here to stay and the ramifications for breaking them are severe.
Everyone, including owners of Freehold and Leasehold Land are subject to the existing law until is it repealed or amendment by an act of Parliament. With an increasing environmental focus, and the rising involvement of agencies like the Department of Environment and Science (DES), the Department of Mines and Natural Resources (DMNR) and the Environmental Protection Authority (EPA), we should all anticipate a crack-down on breaches of these sometimes inconvenient laws.
These laws can be tricky, and to expect everyone to know their ins-and-outs might be unrealistic, but land owners and lease holders alike need to be aware that an ignorance of the law or disagreement with law, does not provide a defence to it.
Should you choose to wilfully break the law that will be a factor a sentencing court will take into account, but many environmental laws also do not require intent, and people can and are being prosecuted on a strict or absolute liability basis. This means that even if you have breached one of these laws inadvertently, harsh penalties can still apply.
The Courts are generally not constituted by gullible fools and the recent decision in Baker made that abundantly clear. The case was brought by the Department of Mines and Natural Resources for the unlawful clearing of trees under both the Forestry Act and the Sustainable Planning Act.
In mitigation of penalty, the Appellant raised that the unlawful clearing was conducted for the purposes of fire safety management, to create a firebreak. That argument was rejected by both the Magistrate at first instance, and later in the appellate court, due to the inexplicability of that submission having regard to the substantial size of the area cleared for the stated purpose. At first instance, the Defendant was fined $276,000 for the clearing offences and ordered to pay the costs of the prosecution and investigation, which were assessed at a staggering $541,309.15. Although the fine was reduced on appeal to $250,000 and the costs to $495,000, further costs were awarded against the Appellant on appeal of nearly $225,000, at a total cost to the Defendant of almost $1,000,000.
This case exemplifies that the courts will deal with these matters seriously and will reject inherently improbable submissions. Everyone knows that the real purpose of clearing vegetation is to grow grass and expand the commercial viability of land.
If one thing is clear, it is that land owners need to go through the appropriate approval processes built into the legislation to avoid financially crippling penalties and costs orders that will almost inevitably flow from these sorts of prosecutions.
An increasing focus on larger fines and greater deterrence against any person or company engaging in these types of activities without appropriate approval will be a focus of prosecuting authorities and the Courts.
In Baker, personal deterrence was a significant consideration against the defendant. The overall conduct showed a disregard to the law for a protracted period in which unlawful clearing was pursued without justification or excuse, including for commercial purposes.
Courts and Departments will also seek penalties that focus on deterring others from engaging in similar conduct. These considerations of deterrence in environmental matters will only increase with the added attention being given in light of the global environmental crisis.
Vegetation Management – Forestry Act – Sustainable Planning Act Liabilities
A starting point is that a penalty unit is $110 and a maximum penalty for an offence is prescribed by the legislation. For example, a breach of section 39 of the Forestry Act has a maximum penalty of 1000 units or $110,000.
Subsequent offences under this legislation and other laws provide for far higher maximum penalties. It is important to keep in mind the penalties are applied for each charge, not for a set of offending and that offences under legislation like the Vegetation Management Act and or the Forestry Act will usually also constitute breaches of the Sustainable Planning Act.
The accumulation of these penalties exposes people to incredible levels of liability. The maximum penalty available under the Sustainable Planning Act in Baker’s case was $6.7m.
It is imperative that land owners take the necessary steps to inform themselves and make sure that any conduct is not breaching one of these pieces of legislation. Our team at Creevey Russell Lawyers specialise in these areas and are equipped to assist you in all areas, from dealing with applications for approval, to representing our clients who are being prosecuted under these increasingly misunderstood and serious laws.
 
 

Michael Burrows
Senior Associate
Ph:   07 3009 6555
Email: [email protected]

How a Shareholders Agreement Can Protect Your Business

Too often we see businesses get embroiled in costly disputes in circumstances where a shareholders agreement could have prevented these unnecessary legal costs. Most successful businesses we deal with have well drafted shareholders agreements in place.
When entering into a business arrangement, whether it is with a colleague, family member, friend or strictly business partner, it is imperative that the nature of the relationship and terms and conditions of the arrangement are documented to protect the interests of all parties.

What is a shareholders agreement?

A shareholders agreement is an agreement that will formalise the arrangement that you intend to enter into, or have entered into, with your business partners and set out how the business will run. It should cover a range of matters some of which are set out below. The below is not an exhaustive list of clauses that should be covered off on in your shareholders agreement, however it should give you a brief idea of the number of matters that need to be considered and covered off on within the shareholders agreement.

When should you get one?

We suggest entering into a Shareholders Agreement as soon as possible and before your new idea is launched or before any of the parties involved have made any financial or other contribution. As you will read below the Shareholders Agreement should cover a number of critical aspects to the business operations, rules and regulations and it is therefore prudent that these matters are agreed between business partners at the outset of the arrangement.

What does the shareholders agreement cover?

The following are examples of clauses your Shareholders Agreement should cover to best protect the interests of the parties and the business:
a. Sale of Shares
A Shareholders Agreement should outline the process involved with sale or sale of shares. Generally this will include drag-along and tag-along rights, pre-emptive rights and what happens in the event that a shareholder is totally and permanently disabled. These clauses provide both minority and majority shareholders with protections with respect to the transfer of shares.
b. How the Business is to be Managed
In addition to information regarding sale of shares, a shareholders agreement should include all other required policies and procedures including general management of the company, how and when decisions can be made, how what happens in the event that a director defaults under the shareholders agreement and when the shareholders agreement can or will be terminated, how dividends are calculated and paid. These policies and procedures are included in the shareholders agreement to clarify from the outset how important decisions will be made for the business in the further.
c. Dispute Resolution
This clause will typically require one shareholder to issue the other shareholder/s with a notice of dispute then require the parties to explore other options to resolve the dispute (for example by way of informal dispute resolution techniques such as negotiation, mediation or independent expert appraisal). The Shareholders Agreement may set out the order of these informal disputes resolution options (typically from least formal to most formal) and may also require certain steps to be taken within a particular timeframe to avoid having disputes drag out unnecessarily.

Things to watch out for:

a. Restraint of Trade
Shareholders Agreements will more than likely include provisions regarding restraint of trade that will apply in the event you or your business partner leaves the business. This clause will generally include definitions of the restricted activity (being the activities the relevant person is restricted from carrying out), the restraint area (where the relevant person will be restricted from carrying out the restricted activity), and the restraint term (being the period of time the relevant person is restricted from carrying out the restricted activity within the restraint area). The parties must ensure that each of the restricted activity, restraint area and restraint term are not too onerous but still provide the requisite protection for the reaming partners and business. This clause should be reviewed and advised upon from both an exiting and a remaining shareholders perspective.
b. Confidentiality
A confidentiality clause will generally cover:

the information or type of information that is deemed to be confidential for the purposes of the Shareholders Agreement
who a party is able to disclose confidential information to
requirements when disclosing confidential information (the relevant third party may be required to enter into a confidentiality agreement)
what happens in the event that the confidentiality provisions are breached by a party

Again, this clause needs to be considered and drafted carefully. If confidential information is leaked it could have detrimental effects on the business and in turn the shareholders. You will also need to consider your confidential information must continue to be kept confidential after termination of the shareholders agreement or if/when the business ceases to operate.
c. Rights and Obligations
Shareholders will have certain rights and obligations under their shareholders agreement and it is important that these rights and obligations are fully reviewed to ensure that they are fair in the circumstances and each shareholder must fully understand their rights and obligations so that they are carry out what is required of them. For example, certain shareholders may be entitled to appoint a director in the company. This could be based on classes of shares or any other factor set out under the shareholders agreement. If you are not a director, or do not have the right to appoint a director your rights may be limited with respect to receiving company information, or making decisions or entering into documents/agreements on behalf of the company.
The above are not exhaustive lists of what your shareholders agreement should cover or what things you need to watch out for when your shareholders agreement is being prepared. Shareholders agreements are complicated documents that require a unique understanding of the current or proposed business operations and individual shareholders concerns in order for them to be drafted correctly.
If you require any assistance preparing or negotiating your shareholders agreement or with any other commercial legal issue, please do not hesitate to contact our dedicated commercial team.

Helen Kay
Partner
Ph:   07 3009 6555
Email: [email protected]

Tessa Knight
Lawyer
Ph:   07 4617 8777
Email: [email protected]

Is Your Lease Eligible for an Exemption?

From 2 December 2019 transferees of state leasehold property in Queensland may be exempt from the requirement to apply for the chief executive’s approval before lodging their Transfer Form 1 to transfer their property.
The Department of Natural Resources, Mines and Energy (DNRME) has today recorded administrative advices on eligible titles pursuant to section 322AA of the Land Title Act 1994. This exemption applies to the majority of residential, commercial and primary production leases. The change could save landowners potentially hundreds of dollars in application fees and well as save time in waiting for consent to be obtained.
The exemption will however not apply where the transferring party in a transaction is a mortgagee in possession, a mortgagee exercising a power of sale, or an appointed receiver/manager must still obtain approval for a transfer. These transferees will still need to follow the current process of seeking chief executive approval prior to lodging your Transfer Form 1.
How can you find out if your property is exempt?
You will need to conduct a current title search on your property to determine whether the relevant administrative advice has been recorded. If an administrative advice has not been recorded you will need to follow the existing lease transfer process.
Please contact our commercial and property team here at Creevey Russell Lawyers to discuss if you are unsure how this change affects you or your property transaction.

Helen Kay
Partner
Ph:   07 3009 6555
Email: [email protected]

Tessa Knight
Lawyer
Ph:   07 4617 8777
Email: [email protected]

5 Stages of a Business Sale

The sale of a business is a complicated process with many moving pieces and numerous critical deadlines which must be met. The process of a business sale can sometimes take months to finalise. If you are thinking about selling your business it is important to understand the process and the different stages of the transaction to ensure matters run as smooth as possible.
We have summarised the business sale process into 5 key stages below.

 PRE-CONTRACTUAL STAGE

As the first stage in contract negotiation the seller and buyer may choose to enter into a heads of agreement which will set out the key terms and conditions which will ultimately be the basis of the contract of sale.  These could include:
 

The purchase price
What the sale includes (i.e. Plant and equipment, stock-in-trade, etc.)
Any deposit payable
Whether the contract will be subject to the buyer obtaining satisfactory finance

Once the heads of agreement document has been agreed and entered into the parties’ solicitors can begin to prepare a contract of sale. The contract of sale may still be subject to some minor negotiations however as most of the key terms and conditions have been agreed under the heads of agreement only minor matters should be left to be addressed.
We highly recommend that sellers seek advice from their accountant prior to entering into a contract so that the tax consequences of the sale can be determined before the parties enter into a binding agreement.
Once the contract has been agreed and finalised the buyer should execute the contract of sale first and the seller second. The Contract is dated on the day that the last person executes the contract.

 CONDITIONAL CONTRACT STAGE

Once signed the clock will start ticking on any conditions that your business sale contract is subject to. These conditions may include:

Finance;
Due diligence;
Review of and satisfaction of lease and other third party agreements.

Your business sale contract may be subject to the buyer completing a ‘trail period’ whereby they will be permitted to trial the business for a set period in order to verify its trading performance.
The above conditions are typically for the benefit of the buyer and must be either satisfied or waived by the buyer on or before the date each condition falls due.
If you are selling a franchise business it is likely to be condition of the sale that you obtain the franchisor’s consent prior to the transfer taking place (read our article on How to Sell a Franchise Business by following the link).

 UNCONDITIONAL CONTRACT STAGE

Once all conditions of the contract have been ‘satisfied’ by the required party the contract becomes ‘unconditional’ meaning that settlement must proceed.
A number of matters need to be actioned between the time that the business sale contract becomes unconditional and settlement.

Stock-in-Trade – if the purchase price under your business sale contract is stated to include stock-in-trade and work-in-progress. If these are not included in the purchase price the value of the stock-in-trade and work-in-progress must be determined and the relevant values must be added to the purchase price.
Employees – the buyer must, prior to settlement, notify you of the names of the employees they propose to employ following settlement and need to make an offer of employment to each relevant employee. The business sale contract will specify who is responsible for payment of the leave entitlements of the employees. Adjustments should be made to the purchase price for these amounts.
Security Interests – you may have registered security interests (for example with the Personal Property Security Register) over your stock-in-trade or business equipment. These will need to be released and any partial releases handed to the buyer at settlement so that the buyer has clear title of the business as will be required under your business sale contract.

 SETTLEMENT STAGE

Congratulations! You’ve reached your settlement date! Your solicitor will likely book your settlement to occur sometime in the early afternoon. All parties will attend a physical settlement where cheques, original documents and keys are handed over.

 POST SETTLEMENT STAGE

Although settlement has been completed for all intents and purposes, the following matters will still need to be dealt with post-settlement:

Transfer of business name;
Completion of transfer of lease and registration of documents with titles office as required; and
Transfer of trade marks, websites, domain names, trademarks, email addresses and other contacts for the business, social media accounts.

Your business sale contract may also be subject to a ‘seller’s assistance’ period. If this is a condition of the business sale contract you, or a nominee of yours who is familiar with the business, must attend the business for the specified period following settlement to give assistance to the buyer in relation to the conduct of the business.
This is not an exhaustive list of matters which need to be dealt with following completion of your business sale and you solicitor will advise you of any matters which you need to action following settlement.
OTHER MATTERS TO CONSIDER
We highly recommend that all seller’s undertake a ‘Seller’s Due Diligence’ prior to entering into any negotiations with another party in order to prepare your business for sale. (Contact our office to find out more about our Seller’s Due Diligence).
If you are thinking about selling your business and require any assistance with the business sale process, or any other commercial legal issue, please do not hesitate to contact our dedicated commercial team.

Helen Kay
Partner
Ph:   07 3009 6555
Email: [email protected]

Tessa Knight
Lawyer
Ph:   07 4617 8777
Email: [email protected]

Everything You Wanted to Know about Calderbank Offers

Every lawyer has heard of them.  Most lawyers have delivered at least one.  Few lawyers understand what they are drafting and the consequences of getting it wrong.
There are two central reasons why a party to litigation would deliver a Calderbank offer (or, as the author has endearingly heard them called, a “call to bank” offer) – either (1) they want to avoid the every increasing legal costs that well run litigation incurs, or (2) they reckon they’re on a good run and want to set things up for a shot at indemnity costs when the judgment inevitably comes down in their favour.
However, a properly crafted Calderbank offer, unless it involves simply the payment of a sum and a reciprocal release of liability (and even then), can be incredibly difficult to draft.
Calderbank itself was an unusual case.  In Calderbank v Calderbank [1975] 3 All ER 333, a family law property case, following trial the husband was awarded £10,000 of an £80,000 pool, along with his costs of the action.  Complicating matters was that the wife had made an offer earlier in the action to give the husband one of the properties forming part of the matrimonial pool, a property which the trial judge valued at £12,000.  The wife appealed.
On appeal, the Court found for the wife on the ground of appeal that the husband had unnecessarily prolonged the proceeding by refusing the offer.  The costs order was reversed in favour of the wife.
However Calderbank itself does not stand for that proposition (namely, that the refusal of an offer that is not beaten at trial warrants a departure from the general rule of costs – that they follow the event); Calderbank stands for the proposition that a party can rely on an appropriately marked without prejudice communication (which ordinarily is inadmissible) for the purposes stated therein (for the purposes of bringing it to the Court’s attention on an application for a special costs order, either reversing the general rule, or improving the basis upon which such an order is assessed).
So it must be seen that to class an offer as being a “Calderbank” offer merely means that it has been marked as “without prejudice save as to costs”.
Calderbank v Chapter 9 Part 5
A distinction must also be drawn between a Calderbank offer and a formal offer under the Rules of Court; in Queensland, a formal offer is made under Chapter 9 Part 5 of the Uniform Civil Procedure Rules 1999 (Qld).
A Calderbank offer can be made at any time and include anything that a party desires – so long as it meets the minimum requirements (discussed below).  Whereas, a formal offer can only be made in a “proceeding” as that is defined in r.352 of the Rules (in effect, only matters where pleadings are to be drawn – whether started by claim, ordered to proceed as if started by claim, or where the Court has ordered pleadings or other documents defining the issues).
Minimum Requirements
Formal offers under Chapter 9 Part 5 of the Rules are not the subject of this article – readers should carefully read Chapter 9 Part 5 and the key cases flowing from it – in particular, John Goss Properties Pty Ltd v Thiess Watkins White Constructions Ltd (in liq) [1995] 2 Qd R 591.
Calderbank offers otherwise don’t need to do too much to pass muster – so long as they are clear and unambiguous, capable of easy comparison with the result of the litigation and everyone is on the same page that the offer will be used for the purposes of costs, the Court’s discretion will be enlivened.  An offer must also be left open for a reasonable period of time to allow the recipient to carefully consider the terms.
Capable of Easy Comparison with the End Result
As can be seen from Calderbank itself, the offer is only useful if the Court can easily compare the offer with the end result.  This point is also tied closely to the clear and unambiguous requirement – if an offer is ambiguous, then it’s certainly not capable of being easily compared with the judgment.
A good example of this is Kemp v Ryan & Anor [2012] ACTCA 12.
There, the offer contained a provision that interest would be paid at “20% in accordance with clause 21 of the contract until that money is paid”.
The Court was unclear as to when the interest was to accrue from (clause 21 of the contract provided for interest to be paid on each progress payment, and there were several progress payments outstanding), and ultimately held that the offer did not meet the requirements of being a valid Calderbank offer.
Yes, there is a difference between “Without Prejudice” and “Without Prejudice save as to Costs”…
You were in a rush.  You had to get the email urgently to the other party.  You only marked the email “without prejudice”.  It’ll be right, won’t it?
The Common Law has long recognised a distinction between something marked “without prejudice” and something marked “without prejudice save as to costs” – see Computer Machinery Co Ltd v Drescher [1983] 1 WLR 1379 per McGarry VC.
There, the Vice Chancellor noted that the key point of difference was that the inclusion of “save as to costs” prevented the communication from otherwise becoming inadmissible on the question of costs – and, as we all know, a Court does not have any discretion to admit otherwise inadmissible evidence.
That principle has even found a new home in some of the Evidence Acts – see s.131 of the Evidence Act 1995 (Cth).
As was noted in Calderbank itself, the evidentiary rule established in that case will not apply if the other party is not on notice as to the intentions behind the offer – it isn’t a form over substance point, but the rules of procedural fairness apply such that the other party needs to clearly understand that the offer will find its way to a judge for the purposes of a costs application.  Expectations as to competence on the part of the other party are not enough: experience and case law tell us as much.  The intention that the offer will be used must be spelt out, either by expressing the communication as being “without prejudice save as to costs”, or by expressly stating that the communication will be brought to the attention of the Court on the question of costs (see, for instance, Naomi Marble & Granite Pty Ltd v FAI General Insurance Company Ltd [1999] 1 Qd R 518).  Best practice would dictate that both approaches be adopted.
Effect of a Valid Offer
Unlike a formal offer under the Rules, a Calderbank offer merely provides a basis for the Court’s discretion to depart from the general rule that costs follow the event on the standard basis.  The obvious extension of that is that it is near impossible to appeal a Court’s decision to make a special costs order off the back of a Calderbank offer (an error of the type discussed in House v The King (1936) 55 CLR 499 being required).
It must also be considered who made the offer in what effect it has – a successful plaintiff who made the offer could expect indemnity costs to flow from the date of the offer (or, arguably, the date of rejection of the offer).  On the other hand, a defendant may not need to succeed entirely to get the benefit of an exercise of discretion – even if the plaintiff obtains judgment against a defendant, if the plaintiff should have accepted an offer from the defendant, then costs could be ordered to lay where they fell, or in exceptional cases, flow to the defendant.

Class Actions in Queensland

The burial of maintenance and champerty in QLD or their death Throes.
Has the last dice been rolled by those opposed to the class (representative) action in Queensland?
In a forlorn attempt to argue that by entering into a litigation funding agreement, one is committing a civil wrong and further, funding agreements are unenforceable in Queensland as contrary to public policy in Queensland, Gladstone Ports Corporation Limited opposed declarations sort to the contrary.
The Representative Action regime was given a sound endorsement by the Supreme Court in Rockhampton last month.
11 November 2016 the Civil Proceeding Act in QLD was amended to include part 13(a) which introduced class (representative) actions to QLD.
The first of class actions was filed on ‘insert dated’ by our firm
In the face of the dire predictions of an avalanche of Class Action litigation in Qld since its inception only 7 class have been filed in the Supreme Court of Qld.  The warnings of the large Defendant Law firms that outside the United States, Australia is the most likely place where a corporation can find itself on the receiving end of a class is simply nonsense.
Justice Crowe provides a comprehensive history of the ancient torts of maintenance and Champerty in a lengthy decision delivered in the Supreme Court at Rockhampton on the 13.09.2019. Murphy Operator and ors v Gladstone Ports Corporation (4 [2019] QSC 228).
 In the face of submissions from the plaintiff that the torts of maintenance and Champerty no longer exist in common law of Australia and ought to be offered a decent common law burial, His Honour   declined to lower the casket and declined to make that determination on the basis that the introduction of part 13(a) of the Civil Proceedings Act 2011 permits class action proceedings to be funded by a commercial litigation funder.
He rejected any suggested that ‘improper control’ is an element of the remnants of the torts of maintenance and champerty.
The decision has been appealed.
The ability of the Supreme Court to make any orders it considers just for the distribution of money  paid under settlement or paid into court is a significant power to ensure the class action litigation is conducted for and in the interest of the group members and not in the interest of a litigation funder.
The power reposed in the Court, pursuant to s103R(2) to be determined what proportion of a  settlement fund is paid to the litigation prevails over any constitutive contractual contract with respect to remuneration of the litigation funder. To paraphrase his Honour’s reasons….. The public policy …. Is that it lays down a regime that permits class actions to be funded by a commercial litigation funder.
What then are the consideration of modern public policy which result in conduct being characterised as maintenance and Champerty: –

The traditional legal policy’s underling maintenance and Champerty content to apply although they must be substantially quailed by other considerations. Officious intermeddling in litigation is the mischief which is targeted and which results an impression of the person in which the action was brought
The fact that an arrangement made be caught by the broad definitions of maintenance and or Champerty is not in itself sufficient to found liable.
Countervailing public policies must be taken into account and especially polices in favour of ensuring access to justice.

One can only hope that good sense prevails and the class action in Queensland be finally fully and comprehensively endorsed as a lawful and necessary access to justice for those by the CA.
Let’s move on Queensland.

A Duck by Any Other Name: The Ever Present Question as to Employee Classification

Any litigation lawyer has had to explain to a client at some point in their career why that very expensive contract they had drawn up saying that Joe Bloggs is a contractor and not an employee doesn’t get them out of that unfair dismissal claim.  Most lawyers have their favourite go to in that situation, whether it be Issacs J ‘disregarding the parties’ labels’ in Curtis v Perth and Freemantle Bottle Exchange Co Ltd (1914) 18 CLR 17, the plurality’s consternation over who actually owns a bicycle in Hollis v Vabu Pty Ltd (2001) 207 CLR 21, Gray J’s duck-masked roosters in Re Porter; Re Transport Workers Union of Australia (1989) 34 IR 179, or, my personal favourite, Shakespeare’s rose by another name.
A more troubling and contemporary question, however, has arisen: when is a TV reality show contestant an employee?
Arbitrator Burge of the Workers Compensation Commission of New South Wales recently had to consider that question.
The Current State of Play
These issues are hardly new – one of the earlier statements is that of Issacs J (referred to above) in Curtis, where his Honour noted “many cases have arisen where Courts have disregarded such labels, because in law they were wrong, and have looked beneath them to the real substance”.
The principle was more memorably stated by Gray J in Re Porter (above), where his Honour was clear that “the parties cannot create something which has every feature of a rooster, but call it a duck and insist that everybody else recognise it as a duck”.
This was echoed by the High Court in Hollis (again, referred to above), who held the key consideration was the substance of what the contract provided for within “the totality of the relationship”.
Bromberg J has provided, perhaps, the most authoritative collection of the authorities on this point in On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366, where his Honour reframed the question as a two-stage test: first, is there a business?, and second, whose business is the activity being performed in and for?  Paragraphs [217] & [218] of his Honour’s judgment are well worth reading as to the various indicia within each question.
House Rules
All that came to be considered by the Arbitrator in Prince v Seven Network (Operations) Ltd [2019] NSWWCC 313.
Ms Prince was a contestant in the 2017 series of Seven’s renovation competition, House Rules.  She was paid a weekly fee for the times that she was shooting the competition, and received pro-rata’d payments for ad hoc shoots (biographical compilations, the grand finale, etc).  She was exclusively engaged in the competition for a period of time, and was obliged to do as she was told by producers (including what to wear and what to say).  She had to do the work on the renovations herself, and to the extent that tradespersons were engaged, the cost of that was taken from the putative budget that Seven allocated to her renovations for that week.  Seven provided the tools for the works.  The contract she signed was clear, however – she was not an employee; she was a contestant.
It became apparent that the producers were setting Ms Prince and her friend, Ms Taylor, up to be the season’s villains, and actively drove a wedge between Ms Prince and the other contestants.  This caused altercations (in one instance, physically) with the other contestants, and exposed Ms Prince to vitriolic abuse on social media.  Ms Prince alleged that Seven, in undertaking this, caused her a psychological injury.
Seven’s insurer denied liability, maintaining that Ms Prince was not an employee.
The Arbitrator found that Ms Prince was an employee whilst she was competing in the contest, and was entitled to relief for her injury.  He held:

In my view, having regard to the relevant factors set forth in the authorities discussed above, the relationship between the applicant and respondent is appropriately categorised as that of employee and employer.
In reaching this finding, I note the following:

(a) The rate of remuneration was set by the respondent;
(b) The applicant was an integral part of the show and essential to the very product and business in which the respondent was engaged;
(c) The respondent had exclusive use of the applicant for every hour of every day during which the show was being filmed;
(d) The respondent had the power to veto the applicant wearing certain clothes, and she was unable to wear any items which displayed business or brand names;
(e) The rules of the show provided the applicant was a public face of the respondent’s business;
(f) The respondent paid the applicant an allowance for her weekly expenses, paid on a pro rata basis;
(g) The applicant took no risk as an entrepreneur in the running of her own business. Rather, she was paid a weekly rate which was set by the respondent;
(h) The activity being carried out by the applicant (and Ms Taylor and the other contestants) was done for the benefit of the respondent’s business, rather than any enterprise of her own. Any goodwill arising from that activity vested in the respondent’s enterprise, rather than in the applicant;
(i) The applicant commenced and completed tasks when directed by the respondent;
(j) The respondent provided tools and materials for the applicant to use;
(k) The applicant employed no one else to carry out the work for them, and to the extent she retained tradespeople, they were approved by the respondent and the cost of them was taken from a budget allocated to the applicant by the respondent.
Take Aways
As can be seen from the above, if there is one thing that almost never comes into play in these matters is the actual semantics – whether you call your employees exactly that (an employee), a contractor, a duck or even a rose (although we would probably recommend you don’t call your employee’s Romeo – that may get some attention under other policies…), the Court will not give any credence whatsoever

What is disclosure and how can it affect my case?

For participants involved in civil litigation in the Queensland, one of many important steps is that of ‘disclosure’. In broad terms, ‘disclosure’ refers to the process of exchanging documents which are relevant to the issues in dispute in a proceeding. This article briefly examines the obligations of ‘disclosure’ under the Queensland Court Rules (Uniform Civil Procedure Rules 1999 or “UCPR”)).
When and how must disclosure be made?
In general terms, disclosure must be effected by delivering a list of the relevant documents to the other party or parties involved in a dispute. The list of documents is an approved form under the UCPR and can be obtained from the QLD Courts website. If copies of any documents in the list are requested, you must provide (at your cost) a copy of that document to the party requesting within 14 days.
The UCPR provides that in most cases, disclosure must be made within ’28 days after the close of pleadings’. ‘Pleadings’ are the court documents filed by the parties which define the issues to be determined by the Court. In many cases, the filing by the plaintiff of a ‘Reply’ marks the ‘close of pleadings’ for the purpose of the disclosure rules however this can vary in some cases.
What documents must be disclosed?
Rule 211 of the UCPR requires each party to disclose documents which are:
(a) in the possession or under the control of the party; and
(b) directly relevant to an allegation in issue in the pleadings; and
(c) if there are no pleadings—directly relevant to a matter in issue in the proceeding.
While on its face it appears a straightforward provision, there has been many cases decided on the application of the rule to particular situations. This article does not include a detailed review of those decisions so it is important that you apply the rules carefully to each individual case.
When are documents under a party’s possession or control?
With respect to limb (a):

‘possession’ means “the physical or corporeal holding of the document pursuant to a legal right to its possession”[1]; and
‘control’ means that the party has the power to exercise discretion over the document. It does not necessarily mean exclusive control, and documents possessed or controlled jointly with another person must be provided.

Possession will extend to documents on a party’s computer or in situations where the party has a right to possess the document (such as a document held at a location away from the person’s usual residence). Control includes the situation where a document can be accessed by request from a third party.
When are documents directly relevant to an allegation in issue in the pleadings?
This limb of the test (whether a document is ‘directly relevant’) is another which has been the subject of regular litigation. A document is directly relevant if it tends to prove or disprove an allegation in issue in the proceeding. This meaning came from a 1997 case[2] which been endorsed repeatedly by courts considering the meaning of this phrase in the UCPR.
Exceptions to requirement to disclose
The UCPR provides that the following documents do not need to be disclosed:
(a) a document in relation to which there is a valid claim to privilege ;
(b) a document relevant only to credit;
(c) an additional copy of a document already disclosed, if it is reasonable to suppose the additional copy contains no change, obliteration or other mark or feature likely to affect the outcome of the proceeding.
Disclosure obligations are ongoing
Rule 211(2) of the UCPR provides that the duty of disclosure continues until the proceeding is decided. This means that if a document comes into your possession or control at a later time, it must still be disclosed in accordance with the rule.
Conclusion
While the duty of disclosure might appear on its face as being straightforward or ‘common sense’, it has the power to win or lose cases. For this reason, it is vital that pleadings in any litigious matter be carefully drafted and understood to maximise the benefit of disclosure under the rules.
[1]  Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 2)  [2006] FCA 1001 at [53].
[2] Robson v Reb Engineering Pty Ltd [1997] 2 Qd R 102