Following the Optus and Medibank data breaches, the Australian privacy framework has been subject to increased scrutiny by victims of cyber-attacks in the online realm. Unsurprisingly, the Information and Privacy Commissioner has called for significant reform to the Privacy Act 1988 (Cth), which ultimately affects how Small and Mid-sized Enterprises (“SME“) prepare online privacy policies and website terms and conditions.
Take this article as a sign to wipe the dust off your website terms and conditions and undertake a compliance audit to ensure that the current provisions remain enforceable and adaptable to incoming change.
Terms and Conditions
Website Terms & Conditions act as an electronic contract that legally binds users of a website to provisions governing the access and use of the website.
Terms & Conditions are extremely important in ensuring that your website is legally compliant, providing protection from:
The Australian Consumer Law, enshrined in Schedule 2 of the Competition and Consumer Act 2010 (Cth) legally requires all Australian domains to incorporate website terms and conditions that addresses the consumer guarantees contained in that Act.
When deciding what to include in Website Terms & Conditions a quick internet search is not the answer. When drafting bespoke terms and conditions that are tailored to the operations, product offering and internal governance of your business we recommend a review of your website terms and conditions to ensure that the following provisions are properly drafted:
It is also important to note that any web-users must be provided notice that use of the website is subject to Terms & Conditions that govern your website. This could be done through an active consent mechanism or a a pop-up banner that users must tick in order to access the website.
Informed consent to website terms and conditions and collection of data will become a trending topic with the revamp of the Privacy Act 1988 (Cth).
Privacy Policy
Your privacy policy serves as an essential tool to mitigate cyber risk. In accordance with the Privacy Act 1988 (Cth), a privacy policy is mandated for any website that handles personal information and must include:
Industry Specific Cyber Obligations
Your business may be subject to industry-specific security obligations that imposes an additional source of regulations requiring compliance. For example, Optus were subject to a variety of legislation, including the Security of Critical Infrastructure Act 2018 (Cth) , and the Telecommunications Sector Security Reforms , in addition to standard Australian privacy laws.
With the Privacy Commissioner confirming the introduction of severe financial penalties that mirror the civil penalty provisions in the Australian Consumer Law, it is important to ensure that your website terms and conditions account for a cross-section of applicable regulations.
Current Penalties and Impending Regulatory Reform
As it currently stands, the Privacy Act includes ‘civil penalty provisions’ where fines of up $2.2 million apply for ‘serious or repeated interference with privacy’ (s 13G) and breaches of other reporting requirements e.g. credit reporting, My Health Records Act 2012 (Cth).
Sections 25 and 25A of the Privacy Act also permits individuals to recover compensation and other remedies where a civil penalty order is made against an entity for a contravention of a civil penalty provision.
Following the recent data breaches of Medibank and Optus, a raft of new legislations and reforms have been proposed. The Privacy Legislation Amendment (Enforcement and Other Measures) Bill 2022 is currently being debated in Parliament and if passed, aims to increase enforcement powers and penalties in the cyber space, including:
Contact our Workplace Law Team to discuss preparing bespoke website terms and conditions and an online privacy policy that aligns with your internal governance and workplace policies.
What is Illegal Phoenix Activity?
The Australian Securities & Investments Commission (ASIC) defines illegal phoenix activity as activity that occurs when a new company, for little or no value, continues the business of an existing company that has been liquidated or abandoned to avoid paying outstanding debts, including taxes, creditors and employee entitlements.
Usually, this activity happens when company directors abandon the company, or transfer the business of an existing company without paying true or market value, leaving debts with the old company. Once the assets have been transferred, the old company is placed in liquidation or abandoned. If a liquidator or administrator is then appointed, there are no assets to recover, which means creditors cannot be paid.
Not all company failures, however, involve illegal phoenix activity, as genuine company failures can ultimately occur. A company restructure, or ‘legal phoenix activity’ can occur in order to responsibly manage the failed company.
What is Legal Phoenix Activity?
Where directors have responsibly managed a company and it subsequently fails, they can operate the same business using another company, without engaging in illegal phoenix activity – this activity is referred to as a Company Restructure.
What is the Anti-Phoenixing Regime?
In the 2018-19 federal budget, the Australian federal government announced a series of reforms to combat illegal phoenix activity. In conjunction with the wider reforms, the Treasury Laws Amendment (Combating Illegal Phoenixing) Act 2020 (Cth) amended the Corporations Act 2001 (Cth) (Corps Act), introducing new criminal offences and civil penalties for officers who do not act in the interests of the creditors and fail to prevent the company from making creditor-defeating dispositions, and the disposition has the effect of delaying the process for the property becoming available to creditors in the liquidation.
These reforms also enable ASIC to make orders (whether at its own initiative or on request from liquidators) to recover assets lost through the illegal phoenixing activity or, require a person to pay to the company an amount that, at ASIC’s discretion, fairly represents the benefits that the person has received because of the disposition.
The first decision of a court enforcing the new regime was handed down by the Supreme Court of Victoria in Re Intellicomms Pty Ltd (in liq) [2022] VSC 228.
The Plaintiffs in the matter were Mr Franklin as Joint and Several Liquidator of Intellicomms Pty Ltd (in liq) (first Plaintiff), Mr Vrsecky as Joint and Several Liquidator of Intellicomms Pty Ltd (in liq) (second Plaintiff), and Intellicomms Pty Ltd (in liq) (third Plaintiff). The Defendant in the matter was Technologie Fluenti Pty Ltd (Defendant). The Defendant was a company controlled by the sister of the third Plaintiff’s sole director.
In this matter, the third Plaintiff entered into a share sale agreement with the Defendant. In accordance with the share sale agreement, the third Plaintiff sold the majority of its assets, including its intellectual property, to the Defendant at a price well-under market value.
The court held that the sale of the business to a related party immediately prior to the company going into liquidation was a creditor-defeating disposition under section 588FDB of the Corps Act. His Honour Associate Justice Gardiner described the sale agreement as a ‘brazen and audacious example’ of illegal phoenixing activity.
His Honour made multiple orders pursuant to s588FDB of the Corps Act, including that:
How can a Restructuring and Strategic Advisory Lawyer help?
Our team of restructuring and strategic advisory lawyers can assist you and your company, by providing detailed advice to ensure you are not in breach of any legal requirements. We can also assist small businesses in providing recommended structures to assist your company in succeeding from the start.
When a loved one dies without a Will (otherwise known as dying intestate) it may be unclear who has the right or obligation to claim and dispose of the deceased’s body.
Lotoaniu v Helu [2022] VSC 675, determined on 8 November 2022, considered these rights and obligations. Sione Lotoainu died 11 October 2022 at age 55 intestate (without a Will) and the Victorian Coroner took possession of his body.
The deceased’s de facto partner, Luisa Helu, successfully applied to the Coroner to have the body released to her for cremation, in order to keep his ashes in Melbourne with her and their 5 children. The Coroner wasn’t required to specify the mode of disposal upon release of the body, that is, either burial or cremation.
The deceased had a son from a prior relationship, Alex Lotoaniu. The son applied to the Victorian Supreme Court for release of the body to him for burial in a family plot in Sydney. The cremation was held-off by Court order (also known as an injunction) pending the outcome of Alex’s application to the Court.
The Court considered whether the Victorian Coroner initially had the power to release the body of the deceased to his defacto partner, Luisa and further, whether the son had the right to appeal the decision, given he had not also made an application to the Coroner.
The Judge noted that the Court would not comment on the merits of burial versus cremation or the parties’ reasons for their competing wishes, they could only determine the best custodian of the deceased’s body at law.
The Court indicated initially, its role was to consider the deceased’s family circumstances and the deceased’s wishes which is made difficult if a person dies without a Will (intestate). The Court in making their decision, considered the following:
The Court considered whether the Coroner had powers to make a final decision with regard to custody of the body, or whether it fell to the Court to do so. Applications to the Supreme Court are only available to persons who have first made an unsuccessful application to the Coroner, so the son may not have had the right to appeal the decision. Moreover, the Coroner had fulfilled their duties by sufficiently considering the required factors including any Will or testamentary instructions, a hierarchy of next of kin, and common law principles such as a presumption that the body goes to the person who is likely to be the administrator of the deceased’s estate. This means the Court may not have had the power to change the Coroner’s decision.
Smith v Tamworth City Council (1997) 41 NSWLR 680, Gilliott v Woodlands [2006] VSCA 46 and other caselaw expresses that spouses will be preferred to children in the hierarchy of next of kin for the purposes of deciding to whom a Court will release a deceased’s body.
The Judge in Lotoaniu v Helu considered that the person entitled to the deceased’s body was to be decided based on who had the ‘largest interest’ in the deceased’s estate which he determined was the deceased’s minor children. On that basis he granted custody of the deceased’s body to Luisa as the legal custodian of the deceased’s minor children.
It’s unclear whether the Judge was also hesitant to deviate from the Coroner’s decision for lack of jurisdiction to override them, or, because the son may never have had the right to apply to the Supreme Court in the first place. Perhaps the Judge was also hesitant to decide in favour of Luisa given her complicated relationship history with the deceased.
If you have questions or you need help, our team of qualified estate administration and litigation lawyers at Chamberlains Law Firm can help you, contact us today.
An executor is the person appointed by a Will to carry out the wishes of the deceased, such as closing bank accounts, selling property, and distributing money and property as the deceased intended.
Generally, executors should aim to administer the estate within a “reasonable” timeframe, which depends on the complexity of the estate. If there are excessive delays in the administration of an estate, the beneficiaries of the Will may suffer losses.
Also, if there is a dispute about the Will, or about how much someone gets, it is highly desirable that any claims are made sooner rather than later. As an example:
Five years is really just too long: Harkin v Harkin [2022] NSWSC 1212, Meek J
This case concerned the estate of the late Helen Jean Shaw. Helen was survived by her three children, Gregory (the Plaintiff) and Sherrie and Colin (the Defendants). Gregory, Helen’s eldest child, owned a property at Charmhaven jointly with his mother. Helen passed away in March 2017, leaving a Will that divided her estate equally between her surviving children.
Greg sued Sherrie, as executor of their mother’s estate, to obtain possession of the whole of the property, because after five years he said she had not done anything to advance the estate to an end.
During the proceedings, it was alleged that illegal and anti-social activities were occurring at the property. The Court also took a very dim view of the significant delay in administering the estate – his Honour commenting “a period of five years is really just too long” [58]. Troublingly, none of the parties were able to give the Court basic details about the estate, including a copy of Probate, or details of any other assets.
His Honour stated that the administration of this estate is a straightforward task as only a part of a piece of real estate was an estate asset. Sherrie did not satisfy the Court with an explanation as to why the deceased’s share in property had not been transmitted to her name, beyond suggesting it was her brother Greg’s obstruction to that process causing delay. His Honour did not accept that.
His Honour did not make the order for possession sought by Greg, and instead directed the parties to consult, with a view to selecting an independent administrator (a solicitor experienced in this area) to take over the estate administration.
The decision in Harkin makes it clear that the Court takes supervision of the administration of estates seriously, and delay can cause significant difficulties for beneficiaries and executors alike. An executor has a number of responsibilities they must attend to. Beneficiaries are not left without an option if an executor is not doing their job.
The Private Wealth team at Chamberlains is experienced in assisting executors to conduct an estate efficiently, or helping a beneficiary get an estate back on track.
One of the main ways to challenge a Will is by making what is known as a family provision claim. The recent case of Scott v Scott is an example of a successful claim being made by an adult child in New South Wales where that child received less than her sibling.
What is a Family Provision Claim?
A family provision claim can be made by an eligible person if they believe that the deceased’s Will has not made an adequate provision for their “proper maintenance, education or advancement in life” (see e.g. Succession Act 2006 (NSW) s 59 and Family Provision Act 1969 (ACT) s 8)
Who qualifies as an ‘eligible person’ depends on the State or Territory that you are in. In New South Wales, it includes a spouse, de facto partner, a child, a former spouse in certain circumstances, and someone who was dependent on the deceased or living in a close personal relationship with them at the time of their death. This can include dependent step-children and even grandchildren.
A court will consider several factors when determining whether the applicant was ‘adequately provided’ for in the will. These factors include, but are not limited to, the following –
A recent Court decision; Scott v Scott [2021] NSWSC 1619; [2022] NSWSCA 182
In 2021, Coralynne Scott made an application for family provision against the estate of her late mother, Coral Scott, who died in July 2019. Coral left 3 children; two daughters and one son.
Two months before her death, Coral Scott executed a new Will. The 2019 Will appointed Charlene, her youngest daughter, as her sole executor and trustee. The Will left Coral’s house in Fairfield (the main asset of the estate) to Charlene and gifts of $40,000 each to Coralynne and the deceased’s son, with the rest of the estate divided equally among the three children.
Coral and her two daughters had lived in the Fairfield property for significant periods of time. Coralynne had lived at the home for most of her life, except for a period between 1977-1979, and until the deceased’s death. Charlene had also lived in the home most of her life.
Coralynne had built up cash savings including from compensation claims from injuries she suffered from multiple car accidents. Before that, she was employed full-time and lived frugally. She had several health conditions and demonstrated present and future needs.
She provided assistance to her parents over the years, including –
In 2019, Charlene contacted a lawyer to prepare an updated Will and testamentary statement for the deceased. Both Charlene and Coral were in contact with the lawyer regarding the terms of the documents. In giving evidence, Charlene stated that she had “drafted up” some of her mother’s testamentary statement. The Court did not look upon this favourably.
The trial judge weighed the following factors in determining whether or not an adequate provision for Coralynne had been made –
This combination of factors, and the unfavourable circumstances under which Coral’s 2019 will were made, led to Justice Parker concluding that the provision for Coralynne was not adequate and he awarded her additional provision. Charlene appealed this decision in the NSW Court of Appeal, but her grounds of appeal were dismissed with costs.
You might be eligible to make a family provision claim to challenge a Will if you have not been adequately provided for in a loved one’s Will. Our estate litigation specialists in the Private Wealth Law team at Chamberlains can assist you.
Unfair dismissal refers to a legal claim made by an employee when they have terminated from their job in a manner which they believe is “harsh, unjust or unreasonable”. In such circumstances the aggrieved employee can file an application with the Fair Work Commission (FWC) seeking certain remedies from the employer. Ultimately, however not every dismissal is unfair and not all employees are eligible to make an unfair dismissal claim. To simplify it, we have set out a summary below of everything you need to know on the topic.
Who is eligible to make an unfair dismissal claim?
Not all employees are automatically protected from unfair dismissal. To be eligible to make an unfair dismissal claim, an employee must:
There are other circumstances where an employee is ineligible to make an unfair dismissal claim, for example, certain employers like state governments and local councils are not covered by the Fair Work Act 2009 (Cth).
When is a dismissal unfair?
Section 387 of the Fair Work Act 2009 (Cth) sets out criteria that the FWC must take into account when considering whether a dismissal was “harsh, unjust or unreasonable”. The criteria is:
Of course, not all of these matters will be relevant in every case, or will have equal importance, but the FWC is required to take them into consideration.
Time limits
The most important thing to know about unfair dismissal claims is that strict time limits apply. An employee must make an application to the FWC within 21 days of the dismissal taking effect or the FWC may refuse to hear the application. Only in very limited and discrete circumstances will the FWC grant an extension of time to file the application.
What should an employer do if an employee has filed an unfair dismissal application?
For many employers it can come as a shock to find themselves the subject of an unfair dismissal application. It is important to contact a lawyer as soon as possible, because if the employee has made an unfair dismissal application which is of no merit, or which they are not entitled to make, you can save yourself a lot of time and stress by getting advice early. For example, if an employee has not been employed for more than 6 months, they cannot make an unfair dismissal application. In this case, a “jurisdictional objection” can be made, meaning that the application is invalid. This can save employers a great deal of stress and cost in defending an otherwise baseless claim.
The Conciliation Conference
Most matters that are brought before the FWC are resolved at a “conciliation conference”. The conciliation is facilitated by a mediator from the FWC who will permit the parties to each make a statement before proceeding to give the parties to privately discuss. The mediator will then move between the two parties and convey any offers and discuss progress. If the parties settle, then the FWC will provide a standard form settlement agreement. The parties will generally negotiate on an amount of compensation or other non-monetary consideration, such as a reference or statement of service.
The conciliation is designed to allow the parties to come to an agreement without having to incur the stress and expense of proceeding to a conference or hearing on the matter. If the parties can come to an agreement then the FWC will provide standard terms of settlement which will provide for the settlement of the matter through compensation or some other non-monetary means, and will also provide strict conditions of confidentiality and non-disparagement. Conciliation is confidential and does not involve the presenting of evidence or making complex legal submissions. It is not designed to test the law or make a factual finding on what happened, rather the purpose is to amicably resolve the issues so that both parties can move forward with their lives. The conciliator does not act as a judge or arbitrator and does not comment on the merits of any particular argument. Their role instead is to allow the parties to have a productive discussion and work towards a resolution. Conciliation is compulsory before matters can proceed to a hearing, however if it is clear at the conciliation that the parties are either unwilling or unable to come to any resolution, then the matter will be listed for a hearing date.
Proceeding to Hearing
If the matter fails to settle at a conciliation conference, then the matter will be listed for a further hearing date before a member of the FWC. The hearing will be more formal in nature and similar to a court trial, where the parties will be required to give evidence and there will be an opportunity for the parties to cross-examine witnesses and make legal submissions to the presiding member. If the matter goes to a hearing, then the FWC member will make and publish a formal decision after the hearing.
Chamberlains can assist with representation and advice at all stages of the process. If a matter has progressed to a hearing, then it is essential to get legal support and representation as the hearing will involve complicated questions of law, much the same way a court trial would. Although a hearing is intended to be more informal and cost effective than a court proceeding, it is still a specialised matter requiring specialist advice.
Next Steps
If you are involved in an unfair dismissal application, it is important to act quickly to receive legal advice to ensure that any necessary applications can be filed within 21 days. The experienced Chamberlains Workplace Law Team offer a free consultation to discuss your case and advise you on the best options for your circumstances.
In addition to providing advice on your case, we will also discuss with you the options for remedies and the outcome that you are seeking.
In order for a will to be valid, the testator (i.e. the will-maker) must have mental capacity. A will made by someone without testamentary capacity will not be considered valid. This forms one of the main arguments for challenging Wills. It is important to protect your estate from challenge through preparing your will with the guidance of an experienced lawyer. Your lawyer will be able to consider and document your capacity when you sign your documents.
A testator “must be of sound mind, memory and understanding” to make a valid will. [1] Courts balance several factors to determine whether the testator had the capacity to make sound judgements regarding their estate.
The person making the will must have been aware of:
Consideration is also given to whether the testator has been suffering from a cognitive condition that prohibited the making of sound decisions at the time of instructing their solicitor and signing their will.
In the matter of Chant v Curcuruto [2021] NSWSC 751 the New South Wales Supreme Court considered the validity of Wills signed by Ken and Irene Shephard in early 2017. The question of validity arose when Probate of the wills was sought in 2018.
The factors considered included that:
The Court was satisfied that neither Ken nor Irene had testamentary capacity when they signed the 2017 wills. The Court stated that “the cognitive deficiencies of each were largely detectable and had been detected” [757]. Accordingly, Probate of the 2017 wills could not be granted.
If you wish to contest a will because you believe the testator lacked testamentary capacity to make their will, our Private Wealth Law and Estate Litigation specialists can assist you. We can also assist you in preparing your own wills.
[1] Bailey v Bailey [1924] VLR 294
A Subpoena is a legal document issued by the Court at the request of a party involved in court proceedings. A subpoena is often served on a third party to provide evidence to the Court.
The recipient of a subpoena is often called a subpoena party or addressee and the party who requests that a subpoena be issued by the Court is often called the issuing party.
Three types of subpoenas that can be issued by the Court:
Generally, a subpoena can only be issued with leave of the Court or after a hearing date has been set. There are several requirements that must be met before a subpoena can be issued by the Court. They must contain:
Once a subpoena has been issued by the Court, the issuing party is responsible for serving the subpoena on the subpoenaed party.
Service of a subpoena must be done in accordance with the legislation of each state however generally speaking personal service of a subpoena is required if however the person has a solicitor, the subpoena may be served on the persons solicitor.
When serving a subpoena conduct money must be offered or paid to the subpoenaed party. A subpoenaed party who is not paid or tenders conduct money may not be obligated to comply with the subpoena.
Owing to their ease, user-friendliness and cost-efficient nature, the popularity of online Wills has recently increased. If you decide to draft a Will on an online platform, it is important that the document is finalised and executed correctly to ensure its legal validity. This will avoid putting your Will at risk and the need for an application to the Supreme Court to confirm your Will, which can be costly.
This issue was recently considered by the New South Wales Supreme Court in the case of Maggie Riman – Estate of Rita Riman [2022] NSWSC 872, where the Court dealt with an application on the validity of a Will made online that was not signed before the will-maker died. Before passing away, Ms Riman, completed questions online to make her Will. Ms Riman completed several of the fields of the online Will including inserting her personal details, asset and liability information, who would act as her executor, and who would receive gifts.
Mrs Riman submitted those details through the online platform, but the Will itself was not generated by the platform and signed by Ms Riman before she died. This meant the Will was not validly executed in accordance with the law, namely section 6 of the Succession Act 2006 (NSW) (“the Act”). The Court exercised its power under section 8 of the Act and found that the online, informal Will should be considered a valid Will, even though it had not been executed. The Court drew upon several factors in making this conclusion –
Whist the facts of this case led the Court to determine that the Will was valid, this does not mean the same conclusion will be reached for all Wills that are drafted on an online platform and not signed. This case highlights the importance of ensuring that your Will is executed in accordance with the formal requirements set out in the laws of your relevant State or Territory.
If you are unsure whether your Will has been executed correctly or want to enquire about preparing a Will with us, our team of Private Wealth Law specialists can assist you with a free initial consultation.
To make a Will in Australia, a person must be over the age of 18 and have what is known as testamentary capacity. Statutory Wills are a mechanism which can help create a Will for a person who lacks testamentary capacity. So, what is Testamentary capacity? This is a legal term referring to the mental capacity of a person to make their Will. If someone has testamentary capacity, it means they understand:
Someone may lack capacity if they suffer from an intellectual disability or medical condition that otherwise affects their capacity. It is essential for your lawyer to assess testamentary capacity at the time you sign your Will, and your lawyer may request a medical report to assist with their determination.
While a person who lacks testamentary capacity is not able to make a Will themselves, they may be eligible for a Statutory Will (otherwise known as a Court-made Will). A Statutory Will occurs where the Court authorises the creation (or in some cases – revocation) of a Will on behalf of someone who lacks testamentary capacity. This is particularly useful where the person has valuable assets and either does not have a Will, or has an old Will which no longer reflects their circumstances and what their wishes would be. An authorised person (such as family member or a caregiver) may make an application to the Court to create a Statutory Will. The Court will take evidence into account and will only authorise the Will if satisfied that:
In the matter of Re the Will of Robert, Robert suffered from a developmental disability, mental health conditions and physical disabilities. He required support with various daily activities, as well as assistance with transport, shopping and budgeting. The medical evidence supplied to the Court about Robert stated he had limited decision-making capacity. Robert’s estate was estimated at over $1,000,000.00. The beneficiaries of the Will Robert had made 30 years prior were either deceased or estranged. Robert had no immediate family still living.
An application was made for a Statutory Will by Robert’s long-time friend and financial planner. Over a decade prior, the financial planner and his wife had noticed Robert appearing lonely and distressed around town. They had done things for Robert, including –
Robert also had an old caseworker, who became a friend of Robert’s, and he would provide daily support to Robert, visit him weekly and give gifts to Robert on special occasions. The Statutory Will accepted by the Court appointed the financial planner as executor, with the financial planner, his wife and the caseworker receiving equal shares of Robert’s estate.
If someone that you know or care for is not able to make a Will because they lack capacity and you want to consider an application for a Statutory Will, our team of Private Wealth Law specialists can assist you.