Blog

On 8 September 2021 the High Court found that media organisations (in this case Fairfax Media Publications, Nationwide news, and Australian News Channel) – by creating a public facebook page and posting content on it – encouraged and assisted the publication of comments from third-party Facebook users. The consequence is that those organisations are taken to be the publishers of the third party comments. By being taken to be publishers, those organisations may be liable for defamatory material in the comments irrespective of whether they know what is in the comments. Will this lead to less inflammatory and sensationalised news articles? One might hope, but then of course the alternative is just to turn the comments off. This decision is one in a lengthening line demonstrating the risks of posting defamatory material online. Defamation proceedings are enormously costly for all parties, it is always best to err on the side of caution when commenting.

As a registered adjudicator under the Building Industry Fairness (Security of Payment) Act 2017 (“BIFA”) and partner, Justin Mathews, who also specialises in Building and Construction Law, sets out below some of the basic requirements of a payment claim to recover monies owed by subcontractors and contractors under construction contracts in adjudication under the BIFA. The first step is that a valid payment claim must be properly served on the party who is liable to pay the progress claim under the construction contract. An invoice is a valid payment claim provided it: Identifies the work with sufficient detail to enable the other party to know what work has been done; States the amount claimed. Once a payment claim has been properly served (usually in the manner provided for in the construction contract) the other contracting party must serve a payment schedule within the time frame provided for in the construction contract, or if no time is specified in the contract, within 15 business days after receipt of the payment claim. If no payment schedule is served, then an adjudication application can be filed to recover the amount payable in the payment claim pursuant to the BIFA. If a payment schedule is served, then an adjudication application can be filed to recover the amount payable pursuant to the payment claim.  There are strict time limits for the filing of applications that must be complied with otherwise an application cannot be made. Applications are filed in the Queensland Building and Construction Commission. In our experience, the procedure for recovery of monies owed to subcontractors and contractors in adjudication under the BIFA is far more cost effective and quicker than trying to recover monies through court process. The procedure under the BIFA is designed to ensure an informal and swift recovery of monies owed to subcontractors and contractors to maintain and enhance steady cash flow. However, the benefits of proceeding to adjudication can be lost if the requirements and time frames are not complied with under the BIFA. Please do not hesitate to contact Justin Mathews of our office for assistance with respect to any construction contract dispute, advice in relation to adjudication under the BIFA and the recovery of monies owed to subcontractors and contractors on (07) 5574 0111 or email justinm@qbmlaw.com.au

The characterisation of a person as an employee or a contractor has a number of important consequences. First, there is the issue of pay and benefits. Then there is the question of responsibility for negligence (generally an employer is responsible for the acts of its employees, when it may not be responsible for the negligence of contractors). Generally, calling a person a “contractor” doesn’t mean that they are not an employee and there can be very significant issues coming from that, particularly if they are in truth an employee and become entitled to overtime and penalty rates. Courts have been ready to find that a person described as a contractor is in fact an employee if the circumstances warrant it – in particular where the “contractor” is not in truth operating their own business. The Courts would look at the totality of the relationship. The Fair Work Commission website has a useful discussion of the question here https://www.fwc.gov.au/unfair-dismissals-benchbook/coverage/people-excluded/independent-contractors The High Court recently decided (in respect of the characterisation of casual employment vs permanent employment) that the terms of the contract itself were of greater significance in determining the true relationship. While this decision is limited to the question of casual vs permanent employment, the High Court will be likely to be considering the issue again when determining two appeals to be heard within the next month, one involving truck drivers who were found to be employees after having worked under contractor agreements for some decades, and another in respect of a person working under a labour hire company. The Fair Work Commission itself has chosen to defer the decision of an appeal in respect of the issue until the outcome of these matters (Franco v Deliveroo Australia Pty Ltd [2021] FWC 2818. More to come…

A potentially nasty outcome can occur if residential property is bought by a trust that permits distributions to foreign residents, even if that beneficiary is not a primary beneficiary. Because it is possible for a substantial (or total) of income or capital to be distributed to any one beneficiary, if there are foreign residents who might receive income or capital, the trust may be treated as a foreign trust. As a result, FIRB approval would be needed to any purchase (at a substantial application fee) and in default of compliance even more substantial penalties might apply. Before signing contracts to buy land in trusts, advice should be taken on whether they are the appropriate vehicle, whether they should be amended, or whether an application for approval is needed. The FIRB fact sheet can be found here https://firb.gov.au/sites/firb.gov.au/files/guidance-notes/05_GN_FIRB.pdf