Uncategorised

Expansions to the Unfair Contracts provisions of the Australian Consumer Law come into effect on 9 November 2023. These provisions substantially widen the application of the legislation to “standard form” contracts, whether with consumers or businesses where one party to the contract is a business that employs less than 100 people (subject to adjustment for part time employees), or has a turnover in the previous year less than $10M. Importantly, there are now penalties for unfair contract terms, which will be a significant deterrent from their use. If you use standard forms of contract, it should be checked for compliance. For advice in relation to these matters, contact Peter Muller or Megan Hanneman on 5574 0111.

Do you know that there is a fine for not voting in Referendum 14 October 2023? With the referendum only a few days away, there are many people who have not yet decided whether their inherent distrust of politicians outweighs their inherent distrust of sensationalist media. So what is the consequence if you cannot, or don’t vote? Voting is compulsory in Australia in both federal elections and referendums (though under different legislation). In the case of the referendum it is under sec 45 of the Referendum (Machinery Provisions) Act 1984 which is in similar terms to the Electoral Act 1918, The section is set out below, but essentially if you don’t vote it is an offence. You are likely to get a penalty notice which entitles you to pay a penalty of $20 to deal with the offence at first instance if you cannot satisfy the notice in another way. If you don’t, then the prosecution could result in a far higher exposure – about $313 plus costs. There are also similar potential exposures for submitting false or misleading information to attempt to explain the failure to vote. Sec 45 of the Referendum (Machinery Provisions) Act 1984 45  Compulsory voting              (1)  It is the duty of every elector to vote at a referendum.              (2)  The Electoral Commissioner must, after the voting day at a referendum, being a referendum the voting day for which was not the same as that fixed for the polling at a Senate election or a general election of members of the House of Representatives, prepare for each Division a list of the names and addresses of the electors who appear to have failed to vote at the referendum.              (3)  Subject to subsection (4), within the period of 3 months after the voting day at a referendum, each DRO must:                      (a)  send a penalty notice by post; or                      (b)  arrange for a penalty notice to be delivered by other means; to the latest known address of each elector whose name appears on the list prepared under subsection (2).              (4)  The DRO is not required to send or deliver a penalty notice if he or she is satisfied that the elector:                      (a)  is dead; or                      (b)  was absent from Australia on the voting day for the referendum; or                      (c)  was ineligible to vote at the referendum; or                      (d)  had a valid and sufficient reason for failing to vote.              (5)  A penalty notice is a notice in an approved form notifying the elector that:                      (a)  the elector appears to have failed to vote at the referendum; and                      (b)  it is an offence to fail to vote at a referendum without a valid and sufficient reason for the failure; and                      (c)  if the elector does not wish to have the apparent failure to vote dealt with by a court, the elector may, within the prescribed time:                               (i)  if the elector did vote as required by this Act—give the DRO particulars of the circumstances of the elector’s voting; or                              (ii)  if the elector failed to vote—give the DRO a valid and sufficient reason for the failure; or                             (iii)  pay to the DRO a penalty of $20.              (6)  If an elector does not respond to a penalty notice in the manner indicated in subparagraph (5)(c)(i), (ii) or (iii), within the prescribed time, the DRO must send by post or deliver to the elector, at his or her latest known address, a second penalty notice, having, subject to subsection (7), the same form as the first such notice but bearing a notation to the effect that a previous notice in the same terms was sent to the elector but that a response in the manner indicated in subparagraph (5)(c)(i), (ii) or (iii) was not received.              (7)  The provisions of this section, other than subsection (6), apply in relation to a second penalty notice:                      (a)  as if it were a penalty notice issued under subsection (3); and                      (b)  as if, in the provisions of this section as so applied, references to paragraphs and subparagraphs of subsection (5) included references to those paragraphs and subparagraphs as applied by this section.              (8)  If, within the prescribed time:                      (a)  an elector responds to a penalty notice in the manner indicated in subparagraph (5)(c)(i) or (ii) and the DRO to whom the response has been given is satisfied:                               (i)  in the case of a response of the kind referred to in subparagraph (5)(c)(i)—that the elector did vote as required by this Act; or                              (ii)  in the case of a response of the kind referred to in subparagraph (5)(c)(ii)—that the reason for the failure to vote is a valid and sufficient reason; or                      (b)  an elector responds to a penalty notice by paying the penalty of $20; proceedings against the elector for a contravention of subsection (14) are prohibited.              (9)  If the DRO to whom a response to a penalty notice has been given under subparagraph (5)(c)(i) or (ii) within the prescribed time is not satisfied:                      (a)  in the case of a response of the kind referred to in subparagraph (5)(c)(i)—that the elector voted as required by this Act; or                      (b)  in the case of a response of the kind referred to in subparagraph (5)(c)(ii)—that the reason for the failure to vote is a valid and sufficient reason; the DRO must send by post or deliver to the elector, at his or her latest known address, a notice in an approved form, notifying the elector that:                      (c)  the DRO is not so satisfied; and                      (d)  if the elector does not wish to have the apparent failure to vote without a valid and sufficient reason for such failure dealt with by a court, he or she may, within the prescribed time, pay to the DRO a penalty of $20.            (10)  If, in response to a notice under subsection (9), the penalty of $20 is paid to the DRO within the prescribed time, proceedings

Having been registered for the adjudication of payment claims in Queensland and Northern Territory from 2020 (see https://qbmlawyers.demo2.website/mathews-justin-mathews-licensed-to-adjudicate/), we are proud to announce that Justin Mathews is now also also registered in New South Wales. The adjudication process allows for the speedy determination of claims for payment under building contracts, so that owners and contractors can avoid being bogged down in lengthy litigation. The adjudication process allows for a contractor to make a payment claim, and that if it is disputed, then the dispute to be assessed and a determination made within a matter of weeks rather than several months or years. Adjudication decisions are enforceable in courts. Justin Mathews is now also a Registered Adjudicator to the RICSDRS Adjudication Panel under the Building and Construction Industry (Security of Payments) Act 1999 (NSW), putting is wealth of experience in building and construction law to good use. For advice in relation to building and construction matters and litigation, contact Justin at justinm@qbmlaw.com.au

In some kinds of matters, some law firms will conduct litigation on a “No Win – No Fee” basis.  This is usually where the lawyer is very confident of the likely success of the claim, and often where the lawyer would expect to take their fees out of the claim proceeds.  “No Win – No Fee” arrangements are often also referred to as “speculative fee arrangements” (ie where the lawyer is speculating that it will succeed) but less flamboyantly under the Legal Profession Act as “conditional cost agreements”.  While there are obligations on lawyers in respect of cost disclosures for all matters, there are particular obligations on lawyers in respect of disclosures for these kinds of arrangements.  Section 323 Legal Profession Act 2007 regulates these matters (other than matters that involve criminal proceedings or proceedings under the Family Law Act 1975).  It calls the arrangements “conditional cost agreements” which are defined under section 300 of the Act as being a cost agreement that provides that the payment of sum or all of the legal costs is conditional on the successful outcome of the matter to which the costs relate. Under section 325, “contingency fees” are prohibited, that being an amount payable to the law practice calculated with reference to the amount of an award – eg if a lawyer runs a matter on the basis that they receive half of the proceeds, but that doesn’t stop arrangements where the lawyer might get an “uplift” (a premium) of (say) 50% of their costs if they succeed. Returning to the requirements for a conditional cost agreement, it has to: A particularly important matter is to determine what in fact constitutes a successful outcome.  While that might appear to be common sense, in a matter involving court proceedings, would a successful outcome mean: Also, a negotiated settlement might be treated by the lawyer as a successful outcome when the client believes that it is not.  Prior to the Legal Profession Act, it was not unheard of for clients to be charged as much as or more than the amount that they were to receive with the lawyer claiming to be entitled to make those charges because they had been “successful”.  Under section 327 Legal Profession Act, if the conditional cost agreement contravenes or is entered into in contravention of any provision of the division, then it is void.  While there is still an ability to recover some legal costs under void costs agreements (under section 319), there are restrictions to that, both under section 327 and under section 319.  The lesson is to be careful about any agreements with lawyers involving them running matters on a speculative or “No Win – No Fee” basis, and to be comfortable that you have identified clearly the circumstances under which you might have to pay fees. For advice in relation to “No Win – No Fee” arrangements, contact Peter Muller at peterm@qbmlaw.com.au. But don’t ask Peter to do work on a “no win no fee” basis, because he won’t.