Evescourt Legal | Lawyer & law firm

Evescourt Legal

Phone: +61 2 413 399 165

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25.01.2022 Just booked in to guest lecture on 2 May to marketing students enrolled in the Newcastle Business School at the University of Newcastle regarding the topic of Marketing Law. A lot to cover in a short space of time, but it will be fun a opportunity to summarise the current law and traverse some common pitfalls. My thanks to Tom Chen for the invitation.

24.01.2022 Have you ever been in the unenviable position of finding out that a Default Judgment has been entered against you in your absence, because you failed to file a Defence in reply to a Statement of Claim issued against you in the Local Court (Small Claims Division). This situation can be fixed, however it requires either: 1. Settling the matter and having the plaintiff file a Notice of Discontinuance; or ... 2. Applying to set aside the Default Judgment and proceeding to file a Defence. In relation to the first scenario, a client discovered that she had to contact each of the credit companies individually to notify them of the Discontinuance, otherwise the Default Judgment remained on their file. It's easy to assume that all systems are now synced and integrated. However, in relation to your credit history, this may not be the case.

24.01.2022 Hi there! I have had the pleasure of receiving instructions or assistance from you this year and take the opportunity to thank you, and also to wish you well this festive season. It's been an interesting year to say the least. With the election looming for most of 2013, a topsy-turvy level of demand for legal services in the Commercial, IP/IT space was a real feature of the year for me. ... Notwithstanding, I was able to take on much exciting work over the year, including community projects: starting up and co-ordinating Renew Sydney with Marcus Westbury (dove tailing from successes with the Renew Newcastle and Renew Asutralia initiatives), taking on directorships with the WEA Hunter and the Victory Gardens Collective and joining the task force for the newly formed Parramatta Road live music precinct. I have also received a buzz from assisting a number of SMEs in getting started and prepared for future growth. Anyway, it's always a pleasure helping people develop and expand their businesses and see them flourish. On the flip side, I'm always keen to help release my clients from the burden of pesky commercial disputes, where I can. Some of you (who are experienced and specialist lawyers) provided me with much needed assistance and supervision during this year in relation to more difficult matters. Alternatively, you were gracious enough to accept referrals from me at short notice and for this I am eternally grateful. I love to contribute to community projects where I can and I will continue to do so with great passion. I'm very much looking forward to "hitting the ground running" in 2014 and assisting you wherever I can. Have a lovely Christmas and a safe and prosperous New Year. My best to you always!

23.01.2022 Keeping an eye on the "root and branch" review of Competition Law, proposed by the Coalition Government.

20.01.2022 A quick one for all my business / lawyer / business buddies, is this the vibe? http://www.youtube.com/watch?v=htobTBlCvUU

20.01.2022 "You don't get somethin' for nuthin". Glad to hear the ACCC is finally investigating Coles and Woolworth's fuel discount shopper dockets after extended periods of increases of discounts to 8 cents. ACCC investigations revealed: ... approximately 80% of consumers were not benefitting from the discounts; the overall price of petrol has been increasing - further prejudicing fuel consumers; fuel discounts have been in part subsidised by grocery consumers; and the discounting regime has been harming the independent fuel and grocery sector. Shopper docket discounts offered by Coles and Woolworth's were actually prohibited under the former Trade Practices Act 1974, when they were introduced. However, having notified the ACCC of the conduct in accordance with the TPA, the ACCC refrained from taking action at that time, effectively mandating the conduct. At the time, I was aghast. It had been drummed into me working at Lion Nathan that offering a product or service for sale to consumers in conjunction with a discount for goods or services sold by a third party supplier was an immediate or "per se" offence under the TPA, known as "third line forcing". The technical aspects aside, it was also plain to me that those market effects recently "discovered" by the ACCC would eventually occur. The real question is whether consumers really obtained any net benefit at all or whether the whole charade was simply anti competitive from the "get go".

19.01.2022 ***COMPETITION LAW UPDATE*** The ACCC finds COLES was engaging in unconscionable conduct to secure favourable terms of trade against 200 suppliers. Whatever it takes to ensure, "down, down, prices are down".... http://www.accc.gov.au//accc-takes-action-against-coles-fo

15.01.2022 ***EMPLOYMENT LAW UPDATE*** - What is the legal status of an intern? The answer is we're not quite sure yet as the Fair Work Ombudsman is yet to consider the issue. Essentially, with interns - there is a fine balancing act between the policy of ensuring employees receive their minimum entitlements and the mutual benefit both businesses and interns receive out of the relationship.... Generally, internships are very informal arrangements that can provide interns with valuable experience in their chosen industries. However, it is important to ensure that interns are not exploited for their labour without any prospect of enhancing their career opportunities. In short, if your business is considering taking on an intern, for abundant caution I would advise that you document the arrangement and provide some monetary component in the deal for hours worked. This will ensure that your IR risks are managed appropriately.

14.01.2022 I'll be speaking at The Hunter Young Professionals event at the newly created venue on Parry Street, "The Edwards" on 13 March. The theme is "Proactive Novocastrians" and I will be speaking in my capacity as Chairperson of Renew Newcastle. Hope you can make it along. Further details to follow.

14.01.2022 ***LABELLING LAW UPDATE*** An interesting discussion on how labelling and marketing use the "right choice of words to focus the conversation" away from the truth of intensively farmed products. http://www.upworthy.com/no-one-applauds-this-woman-because-

14.01.2022 ***MARKETING LAW UPDATE - Mass marketing and the importance of the "dominant message"*** Okay, so at the risk of offending some clients (that engage in mass advertising) and my friends working in the advertising industry, I frankly have little regard for mass advertising. Typically, mass advertising is proliferated by: ... * medium or big players in a range of industries; and * appear in newspapers, bill boards, television commercials, on buses...etc. Mass advertising is generally fleetingly viewed by a very wide audience of consumers. These consumers (on mass) have a varying levels of knowledge and competence in relation to the industries, whose players routinely engage in mass advertising. So, in a recent decision of the Federal Court in ACCC v TPG, the Court essentially pin pointed, what I consider to be the "common sense position" in relation to mass advertising. Most will recognise TPG as a reasonably sized telco. They posted a mass advertisement prominently advertising their ADSL2+ broadband product for $29.99. Less prominently placed on the ad was the fact that the ADSL2+ service was bundled with a fixed telephone line at an additional cost of $30.00 per month. In summary, TPG argued that this was okay, because consumers are becoming increasingly sophisticated in the telco sales space. In my view, the Court correctly said heaps of words that amounted to, "Ahhhhhhh....nup". Again, in summary, the key reasoning of the Court was: 1. With mass advertising, the audience is wider and therefore represents more of a cross-section of the consuming community with varying levels of knowledge, sophistication and competence. 2. Mass advertising is often view more fleetingly and in more fleeting situations by this wide audience of diversely sophisticated, knowledgable and competent consumers. 3. Therefore, the "dominant message" (i.e. the more prominent text or audio strap line) is given more weight by the Court when considering whether a player has engaged in misleading and deceptive conduct vis a vis a wide audience of diversely sophisticated, knowledgable and competent consumers. So, BOOM...there you have it. I think it's all pretty straight forward, to be honest. But I can't tell you know number of mass advertisements that I have seen (as recently as today) that attempt to apply substantial conditions to a dominant message by way of "fine print". In essence, the rule of thumb should always be: The bigger the ad and the wider the audience...then the less valuable and more risky it is to rely on "fine print" to pin a sensationalist "dominant message" (e.g. "FREE") to the commercial reality of the ultimate deal. Nuff said.

12.01.2022 ****FURTHER CONSUMER LAW NEWS****** C/o Benjamin Maher.

12.01.2022 ****PRIVACY LAW UPDATE**** IMPORTANT NOTE This post is intended to highlight some key changes to the Privacy Act 1988 (Cth). Essentially, the privacy law regime has changed and it may mean that your organisation's Privacy Policy may require updating. ... WHAT'S GOING ON? 13 Australian Privacy Principles (APPs) have replaced the National Privacy Principles (NPPs) for organisations on 12 March 2014. There are key differences between the two sets of principles, including new obligations that apply to organisations. THE BOTTOM LINE Privacy is becoming a hotter public issue and the Office of the Australian Information Commissioner (OAIC) has responded by reforming the Privacy Act 1988 (Cth) and implementing the APPs, which are more specific (in some cases) than the former NPPs. THIS ISSUE SHOULD BE OF CONCERN TO ALL ORGANISATIONS COLLECTING PERSONAL INFORMATION.

11.01.2022 And now...a word from my sponsor.

10.01.2022 ****CONSUMER LAW UPDATE**** Hands up who hates Telcos. My hand is held high. They are busy foisting "smart phones" onto consumers that are frankly (and using the reasonable consumer test) not equipped to compute all the terms of the standard contracts that they have to sign to get their hands on that nifty, shiny and highly functional device.... These contracts are simply non-negotiable and no doubt some of the terms contained in the ultra fine print crafted by top tier law firms are unfair and contrary to the Australian Consumer Law. I've specialised in contract law for over 10 years now and I'm still perplexed as to how bill massive spikes based on excess data usage can be justified as "fair", just like I can't fathom certain termination fees, administration fees...etc (the list IS extensive). As a consumer, I have the Australian Consumer Law to protect me. This is enforced by the Australian Competition and Consumer Commission. Which is why Telcos now send us friendly reminders about our data usage, omitting to tell us facts about the mammoth effect on our bills if we exceed that usage limit. As an incorporated small business, I am acutely aware that budgeting and remaining solvent (i.e. being able to pay your debts as and when they become due and payable) is crucial to complying with the Corporations Act. Telcos are also subject to complaints lodged to the Telecommunications Industry Ombudsman. Here is where you go: www.tio.com.au. So, if you've been slammed by unexpected massive bills due to data usage (like me), get whip cracking.

08.01.2022 iPhone screen being repaired, so I'll be off line for 40mins. Apologies for the inconvenience.

05.01.2022 I'm back with a fresh screen and contactable.

05.01.2022 Marketing Law Update: Don't delay with brand protection. In Winnebago v Knott, the US brand action for an injunction on grounds of "passing off" (and misleading and deceptive conduct) against Australian manufactured "Winnebago" by Knott has failed on appeal. The facts, put simply:... Winnebago US was aware that Knott was manufacturing "Winnebago" branded products since 1985. In 1992, the parties entered into what amounted to a brand co-existence agreement. It wasn't until 2008 that Winnebago US expressed any intent to export it's product to Australia. In the intervening period, Knott amassed $500 million in sales of its Australian product and substantial reputation in Australia in the process. In any action of passing off (misleading and deceptive conduct) it is for the plaintiff to establish sufficient reputation in the relevant market that is being infringed by a third party brand trader. At first instance, the trail judge found that (for various reasons) Winnebago US had achieved sufficient "spill over" reputation in Australia from the US. On appeal, it was found that the significant passage of time and extraordinary delay since Winnebago US became aware of the existence of Knott selling it's "Winnebago" products in Australia and brining action for passing off (and misleading and deceptive conduct) in 2010, effectively meant that in order to bring justice the injunction granted to at first instance Winnebago US should be dismissed, instead allowing Knott to continue trading with a prominent disclaimer distinguishing it's products and services from those of Winnebago US. The key lesson: Don't "sit on your hands" when it comes to protecting your brand. The risk: A rival brand operating in the same market may achieve a reputation comparable to yours in the market you operate in. Such reputation cannot simply be expunged. You may have to simply settle for the half-way house of coexistence.

05.01.2022 Some pertinent info for smartphone app developers: http://www.pdfhost.net/index.php

02.01.2022 ***TRADE MARK LAW UPDATE*** Federal Court knocks down Telstra's attempt at trade marking the word "YELLOW". The trade mark was applied for by Telstra in relation to a broad range of goods and services, predominantly, "services which include print and online telephone directories and related goods and services".... Justice Murphy found that the word "YELLOW", "has no inherent adaptability to distinguish Telstra's goods or services". In short, the word is merely descriptive of the colour. I agree wholeheartedly with Murphy J. From "YELLOW PAGES", one does not simply achieve a monopoly over the use of the word "YELLOW" in relation to telephone directories. It's a stretch.

01.01.2022 It's only a slight exaggeration to say that law 'performs' society. An article that puts an interesting spin on the role of lawyers in changing the world and neatly summing up some of the reasoning behind why I perform services for free to people and organisations with a benevolent and innovative purpose. http://potlatch.typepad.com//20-public-spirited-lawyers-co