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1300 COMLAW (266 529)

02 4704 9991

Suite 11, 354-360 High Street, Penrith NSW 2750
PO Box 1835 PENRITH NSW 2751

Daniel

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Possible Double Dissolution Election

Prime Minister Malcolm Turnbull announced on Monday that he will recall Parliament, bringing the budget forward a week, and setting the scene for a possible double dissolution election.

Speculation has been rife in the media that this might occur, but everyday Australians might not necessary understand what a double dissolution election is, especially considering that this would be the first time this has occurred since 1987.

In Australia, for a law to be passed, it must be approved by the two houses of Parliament, being the Senate and the House of Representatives. If there is disagreement over a proposed Bill and a deadlock occurs, the Australian Constitution provides a mechanism to solve this problem by “dissolving the Parliament” which means that both the Senate and the House of Representatives are shut down in order for a federal election to take place to determine the matter. All Senators and Members of the House of Representatives must then be re-elected in order to hold their seats. One of the following three results can occur:

  1. Every Senator and Member of Parliament is re-elected and therefore the government remains exactly the same on both sides (this is incredibly unlikely).
  2. The sitting government wins more seats than it had before, making it more likely that their laws will be passed.
  3. The Opposition win more seats than the sitting government, potentially meaning a new government and the laws that triggered the election being defeated.

A good example of how this type of political situation can play out occurred in 1975 when the Whitlam government could not pass laws pertaining to the federal budget, and therefore could not legally spend government money. In that example however, the Prime Minister chose not to dissolve the parliament, causing the Governor General to dismiss the government resulting in an election anyway.

If the Prime Minister Turnbull triggers a double dissolution election, Australia will most likely go to the polls on 2 July 2016.

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Licence Suspensions – Demerit Points

Many of our clients find themselves receiving a letter from Roads & Maritime Services suspending their driver’s licence for the accrual of too many demerit points.

While the demerit points system is designed to punish drivers who consistently breach the road rules, there are some circumstances where you can appeal your suspension to either serve a shorter suspension or avoid a suspension altogether.

Typically, this type of appeal is reserved for someone who has a relatively good traffic record and can demonstrate that not only do they have a need for a licence, but they are a fit a proper person to hold a driver’s licence.

You might be a suitable candidate to appeal a decision of the RMS to suspend your driver’s licence for the accrual of too many demerit points if:

  • You have no other offences on your driving record, but were caught speeding more than 30 kms over the limit which attracts a minimum three months’ suspension.
  • You are a ‘P’ plate driver who has lost your licence for committing one offence, but can demonstrate that you are a fit and proper person to hold a driver’s licence (for example, by completing a traffic offenders program).
  • You drive for a living (for example, as a truck driver) and have demonstrated a tendency to adhere to the road rules over a number of years.
  • You are a person who contributes in a positive way to the community through charity work or other means.
  • You have a genuine need for a driver’s licence.

The test for determining whether or not an RMS suspension should be overturned is whether or not, in the opinion of the Court, you are a “fit and proper person”. If you wish to go down this path it may be necessary for you to obtain references from people who know you and potentially complete driver education programs to show the Court that you are serious about learning from your mistakes and not reoffending in the future.

If you have received a Notice of Suspension from Roads & Maritime Services and want to know if you might be able to appeal this decision and keep your licence, contact us today to discuss your case.

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AVOs in New South Wales

Harrowing footage has emerged via major media outlets this week showing a man named Shane Cuthbert physically and mentally abusing his wife.  In an interview with A Current Affair the victim has told of countless episodes of horrific abuse that left her battered and bruised which were filmed by her husband for his own sadistic pleasure.  Stories like these undoubtedly raise questions about the powers of the victims of abuse to be protected from their attackers.  The article looks at AVOs and how they work in New South Wales.

There are typically two types of AVO.  The first is an Apprehended Domestic Violence Order and it is made where the people involved are related or have been party to a domestic or intimate relationship.

The second type is an Apprehended Personal Violence Order which is made where the people involved are not related or are not in a domestic or intimate relationship, for example neighbours or someone who is being stalked or intimidated by another person.

An AVO is not a criminal charge it is an Order for future protection, meaning it restricts a person’s behaviour to prevent them from causing any harm or threat of violence to the victim.

There are two ways a person can apply for an AVO.  You can make a private application, meaning that you go to your Local Court or engage a solicitor to make the application for you.  The second way an AVO can be taken out is by the Police who are at liberty to make an application on a person’s behalf.

If an AVO is taken out against you have the right to defend it by going to Court to respond to the application.

If you do not agree with an AVO application against you the Court will either refer the matter to a Community Justice Centre for mediation or the Court will want to hear evidence by way of a court hearing to determine whether the AVO should be granted.

If a person breaches an AVO it is a criminal offense.  The most severe punishment for breaching an AVO is imprisonment.

There are a number of organisations who provide free advice in relation to AVOs both for victims and respondents.  These include Legal Aid and the Women’s Domestic Violence Court Advocacy Service.  While an AVO does little to actually protect a person from violence, it is the first step in indicating to perpetrators that they should cease their behaviour or risk serious punishment.

 

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Lawyer vs Lawyer – Class Action

LAWYER V LAWYER – CLASS ACTION 2016

Reports have emerged in the media this week that two of Australia’s biggest law firms are set to go head to head in a class action. Maurice Blackburn is set to file against Slater & Gordon who in 2007 became the first law firm in the world to list on the stock exchange.

The proposed class action is a result of Slater & Gordon recently announcing half year losses of $958 million dollars after its board took the decision to write down the value of the firm’s United Kingdom assets which have taken a significant fall in value since they were acquired recently.

Slater & Gordon is accused of misleading shareholders as to the financial health of the company. In essence, information put out by Slater & Gordon in November 2015 indicated that the business was travelling well and the company was in good shape. Some three months later however the company is reporting massive losses which has resulted in a plummeting share price and huge losses to wealthy shareholders and mum and dad investors alike.

There is no specific evidence yet of any of Slater & Gordon’s directors breaching their duties under the Corporations Act however this case does highlight that running a business via a company structure does have with it important rules that directors must follow including:

  • Taking adequate care in exercising your powers as a director in running the company;
  • Acting in the best interests of the company;
  • Not improperly using your position to gain an advantage for yourself or someone else;
  • Preventing the improper use of information obtained through your position to gain an advantage for yourself or someone else;
  • A duty not to trade while insolvent;
  • A duty to keep adequate financial records that clearly record and explain transactions and the company’s financial position.

In essence, the Corporations Act requires directors of companies to act in a manner that is beneficial to the company and does not seek to cause any detriment or loss to the company. These obligations extend to misleading shareholders who usually make their investment decisions based on the information the company provides to them about its financial performance.
It remains to be seen who will stand victorious as two of Australia’s legal juggernauts come up against each other in what will be one of the most expensive, hard fought and publicised legal battles of recent times.

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Getting a Divorce

Unfortunately, the percentage of marriages that result in divorce in Australia is quite high. If you find yourself in a position where your marriage has come to an end, this article is designed to give you an insight to process of divorce.

  1. You must satisfy the Family Court that you and your spouse have been separated for a period of at least 12 months before applying to divorce.
  2. You must demonstrate to the Family Court that there is no reasonable likelihood in resuming married life (note: It is possible to live together in the same home but still be separated).
  3. If you can satisfy the above two criteria, you are then able to make an application for divorce. Part of your application will include proof that you are in fact married, proof that you are an Australian citizen, and details about when you separated from your spouse.

In Australia, the principal of “no fault divorce” applies. This means that in considering a divorce application the Court does not take into account why the marriage ended, only evidence that satisfies the Court that the marriage has broken down irretrievably.

In circumstances where the marriage has resulted in children aged under 18, the Family Court will only grant a divorce if it is satisfied that proper arrangements have been made for them.

It is important to note that a divorce is different to a financial settlement and parenting/custody of children.

You must seek the advice of a Family Lawyer to ensure that not only are you successful in divorcing your spouse, but also that you receive a fair share of the matrimonial assets and that any children of your relationship are appropriately cared for.

Some of the things that the law considers when deciding what is a fair asset split is the contribution by each party to the asset pool, non financial contributions such as the care of children and maintenance of the family home and the capacity of each party to earn income.

If you need family law advice, contact Complete Legal & Conveyancing to arrange a Skype or telephone consultation today.

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What is a Class Action?

The media is reporting that members of the Australian Navy are launching a class action against the government claiming that they were promised engineer training when they joined, which the Navy failed to provide.

A class action is a court case brought by one person on behalf of a larger group. Class actions typically arise where multiple people share a common legal problem that can be dealt with by combining resources and running it as one case. One of the main advantages of this type of action is that the aggrieved parties have “strength in numbers”.

The class action concept is well depicted in the famous Australian film ‘The Castle’ and in the American film ‘Erin Brockovich’.

Australia has its own history of large class action cases. Following the devastating 2009 Victoria bushfires in which 119 people died and over 1,000 homes were destroyed, a class action on behalf of 10,000 survivors was launched. The basis of the class action was that a faulty electricity cable being maintained by power distributor SP AusNet & Utility Services Group caused the fire, and as a result the fire’s victims should be entitled to compensation.

The class action resulted in a $500 million payout in 2014, which makes this class action one of the biggest settlements in Australian legal history.

In 2010, a class action was launched on behalf of hundreds of thousands of bank customers against the Commonwealth Bank, ANZ, Westpac and NAB on the basis that these banks were charging fees ranging from a few dollars to $45.00 for things like ‘Account Overdraw Fees’ or ‘Late Payments’ without having the consent or agreement of the customer.

In 2014, Australia’s Federal Court ruled that these charges were in some cases exorbitant, particularly in the case of the ANZ Bank.

In 2015, the ANZ Bank won the right to appeal this decision to the High Court of Australia. Whatever the eventual decision of the Court is, it will set an important precedent in determining other class actions that have been launched against other lenders as a result of the above.

Other examples include a class action on behalf of the victims of Queensland’s 2011 floods, and actions being pursued by residents of Badgerys Creek who are being displaced as a result of the pending construction of the airport.

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Managing Death

One of the most important things we do in our practice is assist people to manage the many complications that come with death.

Whether it be drafting our clients’ Wills to ensure that their assets pass to who they want them to or making plans around who will manage our clients’ financial and health affairs if they are unable to do so themselves, people ask us questions every day about what to do to make sure that upon their death their Estate is handled in a way that is not complicated for their families.

One of the main areas of our practice is will disputes also knowns as “family provision claims” or “contesting a will”.

When a person dies certain categories of people can challenge the Will to obtain a greater share of the estate. These eligible people include the spouse/de facto of the deceased, children of the deceased and in some cases the ex-spouse or someone who has been dependant on the deceased person during their life.

Similarly, we often act for Executors of wills who have to defend claims being made against the estate by other parties.

These types of disputes are usually decided based on the size of the deceased person’s estate and the financial and other needs of the parties. The Court considers things such as gifts given by the deceased person to the claimant and vice versa, the type of relationship between the parties and whether any estrangement existed at the time of death and the current financial situation of all parties concerned.

If you have been putting off writing your Will or feel like you have been unfairly treated in an estate matter (or if you are the Executor defending a claim) contact the Deceased Estate’s team at Complete Legal & Conveyancing for expert advice. We can also assist you with the drafting of Powers of Attorney, Enduring Guardianships and Testamentary Trusts.

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Sydney’s Changing Property Market

In the last three months the real estate market in NSW has undergone significant change. Real Estate Agents are now legally required to be much more accurate when advertising property prices to prevent potential buyers from being misled as to what price the seller is expecting for the property.

In addition to this, we have seen a “softening” of the market which has seen prices throughout Sydney level out in recent weeks. The result has been that we can see a market that is still quite active as sellers scramble to take advantage of what remains of the robust seller’s market we have seen over the last two years, and buyers begin to swoop on properties that they consider to be good value as prices slowly come down. This transitional phase can mean great results for both buyers and sellers who are savvy.

If you are thinking of selling your property, always remember the following:

  1. Do I have any “unfinished business” such as inspections or Council approvals I need to get done before I sell?
  2. If I have a swimming pool, have I had it registered with Council and do I have my Registration Certificate?
  3. Have I picked an Agent who is up to date with recent changes to the law?

If you are buying, always remember the following:

  1. Have I seen a Finance Broker to obtain pre-approval to ensure that I do not risk losing my deposit if my finance falls through?
  2. Given that I take the property “as is” subject to any problems it has, has my solicitor arranged a pest and building report for me?
  3. Have I met with my solicitor to discuss the contract to ensure there are no unexpected surprises?

If you have any questions about buying or selling property, contact our expert property team before going to market. We will talk you through the process free of charge.

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Bail Laws in NSW

 

A violent attack at Nepean Hospital last week, in which a police officer and security guard were shot, has brought back to the fore debate about bail laws in NSW.

The media has been rife with argument that last week’s event was a result of the offender having been released on bail only hours before the incident occurred. This article aims to give some insight into NSW bail laws.

There are typically two types of bail.

The first type is bail granted by the police whereby an offender is arrested, charged, and deemed to be fit for release back into the community to return to Court to have their matter heard at a later date. This is the type of bail that was granted to the offender in the above case.

The second type of bail is bail granted by a Magistrate or Judge. This occurs when police refuse to grant bail and the matter comes before a Court, who will deem whether or not granting the offender bail would pose an “unacceptable risk” to the community.

An accused person is considered an unacceptable bail risk if they may fail to appear in Court, have committed a serious offence, may be a danger to victims or other members of the community, or there is some risk that they will interfere with evidence or witnesses if they are released.

Based on what we know about the case above, it appears that the offender was picked up by police and charged for offences relating to break and enter on the day in question. There is no evidence that he had any prior criminal record at that time. There is some evidence that he had resisted arrest in relation to that offence, but no evidence that he had a history of violence. In the circumstances, police saw it fit to grant the offender bail – a decision that will no doubt continue to polarise members of the community as the case goes to trial.

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Airport Brings Legal Debate With It

The construction of Sydney’s second airport at Badgerys Creek has brought with it a melting pot of legal issues. From arguments about the Government’s right to acquire property to build the airport to tenancy issues surrounding people who have lived on the airport site as tenants for a number of decades, the commitment by the Government to build the airport has resulted in numerous actions in the Federal Circuit Court of Australia and other appropriate jurisdictions.

If one is to drive down Bringelly Road today one will see that there are numerous signs posted by land owners on that road that say words to the effect of “The Government wants our land, but on unjust terms”. This is a reference to Section 51 of the Constitution of Australia which sets out that the Government may acquire property from any person on just terms i.e. on terms that are fair and reasonable to the land owners. This legal issue was depicted in the famous Australian film ‘The Castle’ which, as it turns out, was quite a piece prophetic piece of cinema.

The second issue being grappled by the Government in relation to the construction of the airport is the removal of long term tenants from the airport site. Since the announcement of the proposed airport in the ‘80’s, the Government has leased various properties to tenants, some of which have occupied their respective properties for some 20 years as the airport has been delayed as a result of Australia’s changing political landscape. The Government sought to forcibly remove many of these tenants by terminating their Tenancy Agreement, however have been met with class actions and other such litigation in the Federal Circuit Court. To date the Court has been quite generous in allowing people extensions of time to relocate on the basis that the Government should provide them with adequate time to acquire a new property to move to. This is at odds with State law regarding tenancy and perhaps public opinion which would suggest if a Tenancy Agreement comes to an end a property owner should have a right to take their property back for whatever purpose they like. As the landlord is the Government in this scenario however, a combination of legal factors and public perception means that the government has been forced to act in a manner different to how most landlords would be expected to act.

What is certain is that the construction of the airport is sure to line the pockets of solicitors and barristers as the public continue to battle the Government in relation to compensation for land acquisition (on just terms) and access to the huge parcel of land that is required to build the facility.