The Australian Competition & Consumer Commission (ACCC) is an independent Commonwealth statutory authority whose role is to enforce the Competition and Consumer Act 2010 and ensure compliance with competition, fair trading and protecting consumers against any conduct that misleads or deceives or is likely to mislead or deceive consumers or other businesses. This includes making false or […]
The post Businesses making false or misleading claims – avoid misleading and deceptive conduct appeared first on FC Lawyers.

The Foreign Investment Review Board (FIRB) is an Australian government department that assesses applications from foreign persons who would like to invest or buy a home in Australia. It is important to consider whether as a foreign person, you need FIRB approval to purchase land in Australia. If you are an Australian citizen living overseas, […]
The post Foreign investment review board (FIRB) approval for land investments in Australia appeared first on FC Lawyers.

It is clear from the governments release of the exposure draft of the Competition and Consumer (Industry Codes—Franchising) Amendment (Fairness in Franchising) Regulations 2020 in response to the Parliamentary Join Committee’s Fairness in Franchising report that the Commonwealth Government is continuing its focus on regulatory reform in the franchising sector. The Franchising sector has been […]
The post Proposed changes to the franchising code appeared first on FC Lawyers.

Whilst the COVID world has made business very hard for some, it has also been a boom time for many. I recall a very old and dear client once saying to me, “the time to start a business is when it is tough economically because if you survive the future will be guaranteed and so […]
The post Buying a business – what do I need to know? appeared first on FC Lawyers.

The Full Court of the Federal Court recently dismissed an appeal by Urban Alley Brewery Pty Ltd (Urban Alley), a craft brew house after it appealed against a decision earlier this year by a single judge who ordered the registration of the Word Mark “urban ale” be cancelled. Urban Alley sued La Sirène Pty Ltd […]
The post Can you protect a trade mark which has descriptive elements? appeared first on FC Lawyers.

We are often consulted by clients who wish to set up a charity, not-for-profit organisation or social enterprise. So, what are the differences between charities and socials enterprises and what does it mean to be a not-for-profit organisation? Charity Charities are regulated with the Australian Charities and Not-for-profits Commission (ACNC) and once registered you can: […]
The post Charity or social enterprise – What’s the best structure? appeared first on FC Lawyers.

Suck it and see? Pros and cons of keeping your startup simple. No-one wants to spend more than they have to in setting up a small business. Some startup owners just want to stay as a sole trader rather than looking at a company or trust structure. Maybe they don’t want to spend the money […]
The post Transfer duty on small business restructure appeared first on FC Lawyers.

As we all know, the COVID-19 pandemic is having an unprecedented impact worldwide. Even though restrictions are currently easing in Queensland, unfortunately the pandemic may still have a significant effect on your conveyance and for that reason we are here to help you out more than ever! What is the purpose of a finance clause […]
The post What happens if my finance approval gets withdrawn once the contract becomes unconditional during COVID-19? appeared first on FC Lawyers.

In Queensland, most property purchases use a standard contract endorsed by the Queensland Law Society and the Real Estate Institute of Queensland.  The property industry is familiar with the standard contract, which makes it easier and quicker to review contracts before they are signed. Unfortunately, we still see problems arising because a buyer has not […]
The post Queensland – the easiest state in Australia to buy property appeared first on FC Lawyers.

Until earlier this month, the only recourse against employers for underpayments was through civil litigation, whether through the small claims process (Industrial Magistrates Court) or the Federal Circuit Court. An increase in wage theft cases across Australia has triggered the State Government (Qld) to enact the Criminal Code and Other Legislation (Wage Theft) Amendment Act […]
The post Criminal implications for underpaying staff appeared first on FC Lawyers.

If your business employs staff under a Modern Award (Award) which provides for supervisor or leading hand allowances, you may have asked one of the following questions:

Who is entitled to the allowance?
How is the allowance calculated?

By way of example; Businesses operating within the Security industry, the Security Services Industry Award 2020 (Security Allowance) provides that:
17.5 Supervision allowance
The employer of an employee who is required to supervise other employees must pay the employee a supervision allowance according to the number of employees supervised as follows:
(a) 1 to 5 employees—$36.74 per week; or
(b) 6 to 10 employees—$42.40 per week; or
(c) 11 to 20 employees—$55.03 per week; or
(d) Over 20 employees—$64.95 per week.
Who is entitled to the allowance?
Determining which employees are entitled to supervisor or leading hand allowances is simple. If an employee is required to supervise or is placed in charge of other employees, they must be paid an allowance, irrespective of their classification under the relevant award. The terminologies ‘supervise’ or ‘placed in charge’ are given their ordinary meanings and are not limited to managers or senior staff, thus they include any person who is required to oversee the productivity and/or actions of one or more other staff members.
Calculating allowances
Modern Awards (Awards) are to be read at ‘face value’. The Fair Work Commission (FWC) has indicated that the correct interpretation in determining the number of employees a supervisor/leading hand is in charge of, is by counting the highest number of employees a supervisor/leading hand has been in charge of at any given time during their roster, shift or working hours. This is not expressly stated in the Awards.
Using the Security Award example, an employee required to supervise more than 20 employees will be entitled to an allowance of $64.95 for the week, even if the supervisor was only required to perform such duties on a single day. The allowance is not to be calculated by averaging the number of supervised employees across an employee’s work days – i.e. if the employee works five days a week and supervises 20 employees on only one of those days, the employer may not average the number of supervised employees to be 4 per day. Likewise, if the employee supervises 1 employee for four days, and 10 employees on one day, the employee will be entitled to an allowance of $42.40 for that week (10 employees).
The allowance amount is calculated as a percentage of the ‘standard rate’ defined under the relevant Award, and is generally a classification nominated by the FWC (refer to the Award’s Schedule). Thus, this amount will fluctuate as the FWC increases or decreases the standard rate over time.
If you have any questions in relation to allowances, Modern Awards or employment generally, please do not hesitate to contact us.
The post Allowances – Supervisors & Leading Hands appeared first on FC Lawyers.

After a six year battle of defending her opinion, Carrie Curtis, formerly known as Carrie Barlow, has been ordered by the District Court of Queensland (Asbog Veterinary Services Pty Ltd & Anor v Barlow [2020] QDC 112) to pay damages for defamation in excess of $35,000.00, and could be up for more.
Throughout October 2014, Ms Curtis made a number of scathing reviews of Albion Veterinary Surgery and the owner, veterinary surgeon and physician Mr Allen O’Grady, on Twitter, True Local and Facebook. The reviews followed her attendances at the Albion Surgery with her pet beagle, Valentine, which required minor surgery following an altercation with another pooch. Ms Curtis received a $427.00 bill for anaesthetics, surgical fees, materials (stitching), surgery drugs (antibiotics), injections and fluid administration. She thought the price of the antibiotics were excessive and initially sought clarification as to why there was a 350% mark-up on the drugs after the owners of the offending pet refused to pay the bill. Practice Manager, Ms O’Grady, advised Ms Curtis that the fees included a dispensing fee of $14, postage and handling costs and a standard mark-up, reiterating that purchasing drugs online would not provide Valentine with the immediate care it required. No after-hours surcharge was applied.
Upon the conclusion of Ms Curtis’ investigations, she requested that Valentine’s records be collected upon the next visit, as she no longer required the services of the Albion Clinic. Mr O’Grady provided Ms Curtis with a letter enclosing Valentine’s records, advising that her withdrawal from the Albion Clinic’s services meant Valentine would no longer have access to the after-hour emergency service benefits or hydrobath discounts offered to its customers. Seven defamatory posts ensued.
On 17 October 2017, FC Lawyers, formerly known as Ferguson Cannon Lawyers, solicitors for the plaintiffs, issued Ms Curtis with a Concerns Notice in relation to the defamatory posts. Ms Curtis’ responded by making “genuine attempts to address [her] concerns” through amending the True Local and Facebook posts, relying on the defences of justification (s 25 of the Defamation Act 2005 (Qld) (“the Act”)), contextual proof (s 26 of the Act) and honest opinion (s 31 of the Act). Following further demands by FC Lawyers, Ms Curtis declined to provide an apology on the basis that the posts carried the views expressed but deleted the Facebook and Twitter posts and made a request to True Local to remove the remaining post. Unfortunately for the Albion Clinic and Mr O’Grady, the damage was done, as the backlash from Ms Curtis’ posts forced the sale of the Albion Clinic. Defamation proceedings were issued against Ms Curtis for damages to the parent company of the Albion Clinic (“the Company”) and Mr O’Grady’s reputation.
First Question – Is the Company an excluded corporation?
In her decision, District Court Justice Sheridan (“DCJ Sheridan”) found that the Company was an excluded corporation for the purposes of s 9(1) of the Act, as it employed less than 10 employees and was not related to another corporation. The number of employees employed by the Company were counted pursuant to s 9(2)(b) and 9(3) of the Act, which provides that part-time employees are to be taken into account as an appropriate fraction of a full-time equivalent.
Second Question – Do the pleaded imputations arise from the publications?
DCJ Sheridan reiterated that it is a question of law and facts as to what imputations arose from the statements in the posts. The test is to “ask what an ordinary, reasonable reader in the general community would understand the published words to mean”. An ordinary reasonable reader is a person of “fair, average intelligence who approached the interpretation of the publication in s fair and objective manner, not overly suspicious, not ‘avid for scandal’, not searching for forced meanings and not naïve.” Each post is to be considered as a whole, but separately where a passage of time has passed between several posts on different forums.
Ms Curtis admitted a number of the imputations with respect to the Company and Mr O’Grady, however denied that she did not question or comment on Mr O’Grady’s morals, professional knowledge, qualifications or competence.
Despite Ms Curtis’ denials, DCJ Sheridan held that the imputations relating to Mr O’Grady’s morals and professionalism were in fact made by the posts, as the words included ‘over-charged, ‘hiding after hours surcharged’, unfair business practice’, ‘my dog was not welcome’, ‘grumpy’, ‘should not be dealing with people or animals’ and ‘I never found the owners to be very personable or caring’ to list a few.
Third Questions – Were the imputation defamatory?
DCJ Sheridan noted that defamatory matters are not defined by the Act, thus the common law test applies. The test is whether an ordinary, reasonable reader would understand the published words in a defamatory sense, given the circumstances. A publication will be defamatory if it lowers a person or excluded company’s reputations in the eyes of an ordinary, reasonable person. It is imperative to understand that it is not a question whether actual injury is caused to the person’s reputation. It was held that “the ordinary, reasonable reader would think less of a business that grossly overcharges, engages in unfair business practices, takes advantage of its clients and is a business to be avoided”, and furthermore that “the ordinary, reasonable reader would think less of a person who engages in unfair and unreasonable business practices, lacks morals and compassion, is unprofessional and as a vet should not be dealing with animals.”
Fourth Question – What are the defences?
As an advocate for freedom of speech and fair review, Ms Curtis raised the following defences:

Substantial truth or justification (s 25 of the Act); and
Honest opinion (s 31 of the Act)

Both defences failed. Ms Curtis relied on evidence from research she conducted in relation to comparative pricing and the letter from Mr O’Grady. Despite her best efforts, Ms Curtis’ evidence in chief was lacking, and her recollection of events poor. She proceeded to admit that she is unable to make a judgement on what is reasonable and what is not, as prices depend on inclusions. Furthermore, her justification for describing Mr O’Grady as a grumpy person and should not be dealing with people or animals was essentially based on a single event where Mr O’Grady failed to say “hello” to her, despite not being Valentine’s treating clinician. DCJ Sheridan also held that the words used in Mr O’Grady’s letter were incorrectly construed by Ms Curtis, in that the Albion Clinic would merely be “unable to provide in house after hours emergency services”, not “refusing [Valentine] emergency treatment if he needs it in the future”. Further evidence suggested that the amount charged for Valentine’s treatment was fair and reasonable.
Despite raising the defence of honest opinion in the pleadings, Ms Curtis failed to make written or oral submissions in support thereof. The Defence of honest opinion requires that the publication be an expression of opinion rather than a statement of fact, be of public interest and must be based on proper materials. Apart from Ms Curtis’ evidence being unreliable, DJC Sheridan concluded that some of the posts were simply untrue and failed to “fully explain the events that took place in her dealings with the company and Mr O’Grady.” In the absence of truth and further reasoning provided by DJC Sheridan, it followed that Ms Curtis’ opinion was not based on proper materials.
Final Question – What are the damages?
Often individuals who pursue defamation actions see “dollar signs”, likely as a result of the ever increasing popularity defamatory matters are given by the media, this case being no exception. General damages for defamation serves three purposes, being to compensate for damage to:

Both personal and business reputation (if applicable);
Give consolation for the personal hurt and distress; and
Vindicate the person/business’ reputation.

There is no requirement to prove actual damages to reputations, nor to call for evidence that anyone has thought less of the person/business. Ultimately, it must signal to the public or bystander and convince them “of the baselessness of the charge”. In the case of a corporate entity, DCJ Sheridan considered the “grapevine effect” arising form the posts, as they have the potential to increase exposure and damage to the Company’s reputation. It should be noted that any award for damages is discretionary, and the Courts must maintain a level of consistency between comparable cases.
The Company and Mr O’Grady were awarded damages (general and aggravated) in the amount of $10,000.00 and $15,000.00 plus interest respectively. Furthermore, Ms Curtis has been restrained from publishing or causing to be published the words set out in her posts or word to the like effect (injunctive relief).
Unfortunately for Ms Curtis, the damages do not stop here. In December 2014, FC Lawyers made a formal offer on behalf of the Company and Mr O’Grady pursuant to Chapter 9, Part 5 of the Uniform Civil Procedure Rules to settle the matter for $17,500.00 (an amount less than awarded by the Court), which was subsequently rejected by Ms Curtis. In the circumstances, the Company and Mr O’Grady are now pursuing indemnity costs for a matter which has been before the Courts for 6 years.
Have you been defamed by someone else?
If you feel that you have been defamed or someone is alleging that you have defamed them, please do not hesitate to contact our legal team to help you through what can be a very difficult and complex area of law.
The post Checking The Facts Before You Write A Review appeared first on FC Lawyers.

If you are a tenant facing difficulties due to the pandemic, or a landlord being approached by a tenant, the first step should still be communication, as I mentioned in my post on 25 March 2020 HERE.
The Queensland state government has now enacted the COVID-19 Emergency Response Regulation, applying to landlords and tenants of retail and commercial Leases.
The Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (“the Regulation”) enforces the April 2020 National Mandatory Code of Conduct (“the Code”) which is HERE.
In summary, under the Code, relevant tenants:

may not be evicted or have their lease terminated for non-payment of rent or outgoings
must have rent reduced in proportion to their lost turnover (at least 50% of the rent reduction offered must be in the form of a waiver, leaving the rest to be deferred)
may not have their rent increased
may not be penalised for reducing trading hours or not opening
may not have a claim made by their landlord on a bank guarantee or security deposit for unpaid rent or outgoings.

The Regulation only applies until 31 December 2020.
The Regulation can be ignored if parties are capable of reaching agreement between themselves. We are finding that most landlords and tenants are reaching agreement guided by the Code.
However, if agreement cannot be reached, the Regulation’s rules can be imposed by a dispute resolution process.
Which Leases fall under the Regulation?
The Regulation does not apply to all commercial leases? It covers Leases with these elements:-
a) Retail Shop Lease or lease for a tenant carrying on its business; AND
b) Lease was in place as at 28 May 2020; AND
c) The leased premises are the tenant’s business premises; AND
d) The tenant’s business has a turnover of less than $50 million dollars per year; AND
e) The tenant is adversely affected by the COVID-19 pandemic; AND
f) The tenant is eligible for JobKeeper.
When can I apply the Regulation?
For eligible leases, the “response period” under the Regulation is 29 March 2020 – 30 September 2020. The earlier the negotiation process begins, the better it is for the parties.
What does the Regulation do?
A tenant enduring financial hardship due to the pandemic may ask the landlord for temporary rent relief. A landlord may also approach the tenant and offer to help.
The landlord and tenant must continue to comply with the lease in full, until either an agreement is reached or a dispute is finalised. In practice, we are seeing that it is common for immediate relief in some form to be granted by the Landlord, and the finer details are worked out later.
The Regulation requires the parties to cooperate and act reasonably in their negotiations resolving any lease issue related to the pandemic. Accurate information must be given to enable the landlord and tenant to negotiate fairly.
If negotiations break down, the tenant may apply to QCAT or another Court, for an order enforcing the Regulation against the landlord.
Information from Tenant
A landlord only has to act once a written request and requested supporting documentation has been received from the tenant.
information requested from a tenant can include:

Accurate financial information verifying the turnover of the business, and calculated in accordance with the Jobkeeper turnover test
Information showing that the tenant is an eligible entity;
Evidence of the tenant’s eligibility for JobKeeper;
Information on any other assistance being received or applied for by the tenant, and other steps taken to mitigate the effect of COVID-19 on the business

FC Lawyers are experienced in negotiating leases for landlords and tenants, and can help with leasing issues arising because of the COVID-19 pandemic.
Contact our team today if you have any concerns with your commercial leases.
The post Commercial Leases and COVID-19 appeared first on FC Lawyers.

“Let’s get ready to rumble!” is a phrase recognised around the world.
Famed wrestling and boxing announcer Michael Buffer must have known his catchphrase would take off when he started using it in the ‘80s. Since having it trade marked in 1992 around the world, he has reportedly made more than $400 million by licensing one of the most famous phrases to be used in movies, commercials, video games, you name it.
Protecting your trade mark and a business’s intellectual property is something that should be at the forefront of any business, but how far should you go to protect it globally?
As we all know a trade mark is used to give your business a unique presence in the marketplace and distinguish it from those of another business.
In Australia, trade marks are regulated through IP Australia. If your trade mark is registered in Australia, you must be aware that it will only provide you with protection in Australia.
In our modern world businesses can sell and promote their products and services now more easily than ever on a global basis.
So, should I protect my trade mark overseas?
It is important to note that most countries like Australia assume that if you have filed your trade mark in that country you intend to use it in that country. It does not imply it will be protected in another country.
If you have an Australian registered trade mark you have two options to protect it overseas by either:

Making an application directly to that country and you will have to comply with all their individual rules and regulations; or
Through an application filed through the World Intellectual Property Organization (WIPO).

Needles to say it can be a long and arduous process to register each trade mark in each individual country.
WIPO administers what is referred to as the Madrid Protocol. It is a very cost effective solution for a business to register their trade mark in 122 countries worldwide. See the list of members here.
This enables your business to make one application and in the future, you can make changes or renew registrations.
The application to WIPO must be made through IP Australia and their requirements are:

you must have an application and/or a registration in Australia on which to base your application
you must meet entitlement requirements within Australia
the mark on the international application must be identical to that contained on the Australian application/registration
the goods and services in your international application must be covered by the claims in the Australian application/registration
the applicant on the international application must also be the applicant on the Australian application/registration

The costs of registering an international trade mark will vary depending on such things as the classes of good and services you require and the number of countries you wish to register in.
Once registered it lasts for 10 year and can be renewed upon payment of the relevant fee.
At FC Lawyers have over 25 years’ experience in intellectual property law with a very strong focus on protecting your trade mark, both within Australia and globally.
Contact our team today for an obligation free assessment.
The post Should I register my trade mark overseas? appeared first on FC Lawyers.

As you all know, the COVID-19 pandemic is having an unprecedented impact worldwide. Even though the restrictions are currently easing in Queensland, unfortunately the COVID-19 pandemic may still have a significant effect on your conveyance and for that reason we are here to help you out more than ever!
How can we help you during the COVID-19 pandemic with your sale?
To ensure that we can assist our clients with the same level of service during COVID-19 as we do other times, we have:

kept both our Brisbane and Sunshine Coast offices open with normal operating hours so that we are able to be contacted with ease at any time;
with limited availabilities for Justices of the Peace and Commissioners for Declarations, we have been available for the witnessing of any legal documents which we would have otherwise not been involved with which has greatly assisted sellers in meeting timeframes for conditions and settlement under the contract;
taken extra precautions to ensure that any client meetings be spaced out in our large boardrooms with no physical contact;
implemented client meetings via Skype, Zoom and Microsoft teams;
set up our IT systems to ensure you are able to contact us and work with us wherever you may be;
used PEXA (more information on PEXA can be found here) to ensure that there has been no face to face contact, unless absolutely necessary with clients or other parties; ‘PEXA’ stands for Property Exchange Australia and is the only Electronic Lodgement Network and is a faster and smoother way for matters to settle opposed to physically attending settlement and exchanging physical documents;
been using online verification of identity by sending links to your phones and emails so that you do not have to physically attend our office or a Post Office.

Is there anything extra needed to be done by you?
You don’t have to physically do anything extra, however there are more factors for you to take into consideration prior to signing a contract during these times.
Some of these factors are:

longer timeframes for finance, building and pest and any other condition under the contract as they could be impacted by further closures or unavailability of parties (including financiers) for buyers, therefore there may be delays on your sale;
special conditions specifically regarding any change of circumstances which may come around under COVID-19; and
the preparation of the release of mortgage by your mortgagee (if any) may take longer and may impact the timeframe for settlement, therefore it is crucial you sign the release of mortgage as soon as possible once you have a fully executed contract of sale.

It is important that you speak with us first so that we can provide you with the relevant advice and guidance prior to signing a contract to try and work around these factors during the pandemic.
Selling a property? Who should you speak to?
If you are getting cold feet or sweating over entering into a contract, contact us. We will be able to walk you through the process and make sure that you’ve got all the conditions and timeframes you need to protect you by ensuring that you make all enquiries in relation to your sale.
Our team have assisted thousands of people sell their house, unit or land over the past 25 years. Contact our team of experienced property lawyers and conveyancers to discuss your property sale during COVID-19.
The post Selling a property during COVID-19 appeared first on FC Lawyers.

In the past few years, the success rate of high-profile celebrities and public figures for defamation has popularised the cause of action within the broader community. Australia has effectively become the defamation capital of the world, with over 520 references recorded in 2019, not including those matters that do not reach the Courts. On 30 […]

The post Internet giant Google to pay $40,000 in damages appeared first on FC Lawyers.

The contract price is one of the most fundamental parts of a contract, whether for a house, unit, land, commercial or industrial property, or a business. Sometimes parties to a contract want to agree to reduce the price after the contract is signed. Maybe unexpected major problems have been revealed by due diligence or building […]

The post Price reduction? Make sure you get transfer duty reduced as well! appeared first on FC Lawyers.

For the past few months the world has been shaken by the COVID-19 (coronavirus) pandemic, and businesses/employers were forced to ask employees to work from home by government laws/regulations (both State and Federal). For some employers this is new territory, and the implications can be burdensome if not previously identified and addressed appropriately. Although inconvenient, […]

The post Are your employees safe at home during the COVID-19 pandemic? appeared first on FC Lawyers.

Retirement village contracts can be lengthy and difficult to understand and are substantially different from other contracts you may have encountered during your lifetime. Retirement village contracts usually include several documents which can be overwhelming. In this article/blog we discuss the different types of documents that must be given to a prospective resident prior to entering […]

The post Retirement Village Residence Contract – What documents are required? appeared first on FC Lawyers.

A recent decision in the Federal Court of Australia matched the American burger giant In-N-Out Burgers against a Sydney burger restaurant called Down N’ Out. It certainly was a David and Goliath battle and gave an insight on how a court will look at trade mark infringements. In-N-Out Burgers, Inc v Hashtag Burgers Pty Ltd [2020] […]

The post Trade marks – Passing off and Misleading and Deceptive Conduct in the Burger Wars appeared first on FC Lawyers.