Stacks Law Firm, Southern in Goulburn, New South Wales | Legal service

Stacks Law Firm, Southern

Locality: Goulburn, New South Wales

Phone: +61 2 4822 2241

Address: 26 Ellesmere Street 2580 Goulburn, NSW, Australia

Website: http://southern.stacklaw.com.au

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23.01.2022 Does dementia make a will invalid? You feel unfairly cut out of a will. The person who made the will let’s say your mother thinks you are possessed by demons and ride around on a broomstick. Doctors say she had dementia. You’d think you have a good case that your mother lacked the necessary testamentary capacity to write a will.... But Mark Howard Lawyer and Director of Stacks Law Firm says it doesn’t always work that way. Testamentary capacity is a legal question, not a medical diagnosis, Mr Howard said. The legal question is whether, at the time of writing a will, a testator the person making the will has the mental capacity to understand the nature of making the will and the effect it will have. They need to understand the extent of the assets being distributed in the will, and comprehend the moral claims of potential beneficiaries. The testator can’t be suffering from any condition that interferes with their normal decision making. The legal foundation for testamentary capacity rests on a British judicial decision made 150 years ago in Banks v Goodfellow. With an ageing population and an increasing trend to challenging wills, there is more of a focus on whether a testator has testamentary capacity, especially if they change their will while being cared for by an individual who suddenly emerges as the chief beneficiary. In a recent case, two sisters fought to have their father’s will overturned, claiming he suffered from dementia and hallucinations that robbed him of the mental capacity to make a will. The father’s first will distributed his assets evenly among his six daughters. But late in life he changed his will to leave five of the daughters $40,000 each, while one daughter got $3 million. The two sisters argued their father had dementia and lacked capacity when he made the second will. He believed they ran a brothel and were demons, and that a panther lived in the garden. But the NSW Court of Appeal upheld an earlier court decision, supported by the father’s doctors and by evidence produced by the daughter who got the bulk of the estate, that dementia had not deprived him of testamentary capacity. The judge concluded his delusional beliefs were episodic, he made rational business decisions at the time, and therefore met the criteria for being able to make a will, Mr Howard said. There were divisions in the family, and he decided to give the bulk of his estate to the daughter who stuck by him and helped run his business. Every challenge to a will has unique factors, and judges weigh all factors, especially the intent of the testator.

21.01.2022 More and more people are finding their reputations both personal and professional - have been ruined by social media posts that slander them. It seems many people think they can say what they like on social media with no repercussions. But there is a way to hit back at those who slander on social media by taking them to court for defamation. In May this year the NSW District Court awarded a man $35,000 damages for a single post in a Sydney community Facebook group that coul...d be accessed by fewer than 100 people. A post on a Facebook group based in the Sydney suburb of Rose Bay named a man who, it said, gets his kicks intimidating, bullying and threatening women. Even though the woman who posted the message deleted it, the man successfully argued the post had damaged his reputation in the community by implying he was a stalker and a danger to women. He said he was abused in the street, shunned by business associates, and questioned by friends. The judge ruled that because the post reached a low number of people, the award for damages was far less than the maximum penalty for non-economic loss of $407,500. In Queensland a school principal won $190,000 damages in February after taking legal action against two sets of parents who attacked her on a school discussion site. In Adelaide a lawyer won $750,000 in a February defamation judgement against a person who posted a negative online review, even though they had never been a client or even met. The lawyer said the post damaged his business. These decisions demonstrate it is worth getting legal advice on whether to pursue court action over slander and defamation posted on social media, even if it reaches only a relatively small group, said Tony Mitchell of Stacks Law Firm. Too many people think what they say about someone on social media is outside the law covering defamation that covers publications like newspapers, magazines and mass media. But as these cases show, even if there is a limited audience to the posts, the courts can award substantial damages. Even if you insert a disclaimer in your post, saying it is private and confidential or not necessarily your own opinion, it is no protection. If you retweet a post that is defamatory, you are republishing the defamation and can be held liable for the hurt and loss caused to others.

21.01.2022 JobKeeper and keeping your job. Many people both employers and employees - are reporting difficulties and confusion with the government’s JobKeeper program. Lawyer Anneka Frayne of Stacks Law Firm says one of the principal problems being reported concerns changes being made to employees’ hours of work when their employer registers for the JobKeeper $1500 per fortnight subsidy.... Clients have had their hours of work reduced and their position reclassified from full time to part time employment, Ms Frayne said. They’ve been told leave entitlements will only accrue on their new lower work hours, and their rate of pay will be reduced to $750 a week the same amount the employer receives from the government under JobKeeper to keep the worker employed. There are also examples of casual workers being told they will have to work longer hours to receive the $750 a week JobKeeper payment and when they can’t due to study or family commitments, they are fired. Generally, under the Fair Work Act, where an employer qualifies for JobKeeper, the employer is allowed to direct an employee to stand down or reduce their hours of work, and determine what duties they are required to perform and where. However, it says that the employer must come to an agreement with the employee about the days or times they work, and whether the employee takes annual leave, including at half pay. The Fair Work Act does say that the employer must consult with the employee before giving a direction. The Act also says that if a direction is unreasonable, then the direction will not apply. Lastly, the Act says a direction in relation to the duties or the location of work must only be made if it is necessary to continue the employment of the employee. A new provision of the Act, section 789GDB, relating to the minimum hourly rate of pay guarantee, says the hourly pay can’t be less than the base pay per hour that applied before JobKeeper. Leave entitlements continue as before JobKeeper under section 789GS. Redundancy pay and annual leave should accrue as normal. Under JobKeeper rules, employers can’t demand extra hours from staff to match the $1500 per fortnight subsidy. The tax office says there is no room for employers to pick and choose which employee is eligible for JobKeeper payments it’s one in, all in. It can be a criminal offence if employers breach this rule. Employers must ensure they comply with existing employment laws during JobKeeper, just as they were before it was introduced to help employers keep workers on their books.

20.01.2022 Strata ruling confirms power to ban pets A significant new ruling by the tribunal overseeing strata laws has ruled that strata committees have the power to ban pets from a building, overturning the previous position that pets should be allowed. The NSW Civil and Administrative Tribunal ruled on 27 May that the residents in two of Sydney’s largest apartment towers can, through strata committee bylaws, ban every resident from bringing a pet into the building.... The case was brought before three senior members of the tribunal, including the president and deputy president, on appeal by the strata committees after losing earlier cases seeking the pet ban. Merrill Phillips, award-winning certified practising conveyancer at Stacks Law Firm, said the decision is highly significant for anyone considering moving into an apartment block. This decision on pets highlights the importance for anyone thinking about buying or renting an apartment to examine the strata bylaws to make sure they suit their lifestyle, Ms Phillips said. It confirms strata committees can ban people from having pets in their homes. It also means strata bylaws can limit other aspects of how you live inside your home, including smoking, overcrowding, parties, short term letting, balcony barbecues or hanging up washing. Ms Phillips said the tribunal’s ruling demonstrates that despite the much promised pet friendly changes to strata legislation, pets are still not automatically permitted in strata schemes. Section 139 of the Strata Schemes Management Act 2015 says a bylaw must not be harsh, unconscionable or oppressive. Children can’t be banned, nor can assistance animals. Section 157 and 158 says an owners corporation cannot unreasonably withhold consent to keeping an animal, but if the animal causes a nuisance or hazard, it can be removed. The tribunal said these sections support the view that a bylaw prohibiting the keeping of animals is permissible and is not harsh, unconscionable or oppressive. While the apartment tower battle was over dogs, the dog supporters pointed out the bylaws can also apply to goldfish and even live oysters brought home for dinner. Supporters of the pet ban hailed the tribunal’s decision as a victory for democracy, as 81 per cent of apartment owners voted for the ban. It would be wise to get legal advice before you start investing your money in a home covered by a strata scheme, to make sure you are aware of all the bylaws that will have an effect on your happiness living there, no matter how attractive the apartment might appear, Ms Phillips said. When I am acting for a purchaser who wants to take their pet into a strata scheme, I always obtain written consent from the strata manager to avoid any possible conflict.

16.01.2022 How squatter’s rights won a Sydney dunny lane It’s not often the old Aussie terms squatter and dunny come up in court, but as conveyancing and Director Mark Howard of Stacks Law Firm says, when they do, there is a lesson for our modern times. As NSW Supreme Court Justice Francois Kunc said in August 2020, in his judgement in the case Hardy v Sidoti: These proceedings concern two very Australian phenomena the dunny and dedication to home improvement.... Justice Kunc said at issue was ownership of a dunny lane in the Sydney suburb of Redfern, which was 3.35 metres long and just 88 centimetres wide. What was once the dunny lane lay between the Hardy property and that of neighbouring Mr Sidoti. It was a small lane that carters formerly used to pick up buckets of waste from the outdoor dunny, or toilet. Mr Hardy bought his Redfern terrace house in 1998, when the dunny lane was no longer in use. In 2002 he removed an old paling fence dividing his property from the derelict lane, and landscaped his backyard into the dunny lane, converting the laneway area into what Justice Kunc called a small boutique Japanese style garden. In 2018, Mr Sidoti bought the neighbouring property, abutting the dunny lane on the other side of the fence. In 2019 Mr Sidoti landscaped his backyard to incorporate the same dunny lane where Mr Hardy had created his Japanese garden 17 years earlier. Mr Sidoti argued the dunny lane was included in the title when he bought the property. He put a up a new fence, extending his backyard to incorporate Mr Hardy’s Japanese garden. Mr Hardy took action in the Supreme Court, seeking a declaration that the dunny lane on which his Japanese garden stood was now his land. He argued he had acquired legal title to the land by adverse possession. That is legal language for squatter’s rights, contained in the NSW Limitation Act 1969 and the Real Property Act 1900, Mr Howard said. It applies when a person who doesn’t have legal title to a piece of land acquires legal ownership of it, based on continuous possession of the property for 12 years. The judge ruled that as Mr Hardy had virtually squatted on the land for more than 12 years, he was entitled to orders to recognise ownership. The judge found Mr Sidoti had trespassed on that land.

15.01.2022 Employers responsible for domestic violence if staff work from home Employers can be held responsible for domestic violence when staff work from home, the NSW Court of Appeal has ruled. In Workers Compensation Nominal Insurer v Hill, the court ruled against an appeal by an insurer over a workers’ compensation case brought by the children of a woman who was killed by her de facto partner while working at home.... As a Workers compensation specialist Mark Howard, the Director of Stacks Law Firm discussed the ruling with lawyer Emily Wittig. Ms Wittig said the case should bring domestic violence more into consideration as a business issue, particularly with more employees working from home due to Covid-19. The tragic incident occurred in 2010 when they were both working from home for their family company, giving financial advice. An earlier court found the man’s attack was due to paranoid delusions. He was charged with murder, but found not guilty on grounds of mental illness. The mother left two dependent children, a teenage son and a baby just a few weeks old. The children made claims for workers compensation. The claim was resisted by the Workers Compensation Nominal Insurer. In 2018 the Workers Compensation Commission determined the mother had died as a result of injury arising out of, and in the course of, her employment. The WCC ordered $450,000 payment to the two children in accordance with workplace injury law. The WCC had found the man irrationally believed his de facto partner was conspiring to ruin his business and was unfaithful. The insurer appealed, arguing the mother’s death did not occur in the course of her employment. It argued she was killed in her bedroom before work started at 9am, and was still in her pyjamas. Section 9A of the Workers Compensation Act says no compensation is payable unless employment is a substantial contributing factor to the injury. The WCC dismissed the appeal, saying she often worked at home outside regular work hours and her bedroom contained work files. The Court of Appeal ruled in favour of the WCC’s decision, as there was a direct connection between the man’s delusions, her employment and the harm suffered by her. Many people wrongly believe that Workplace health and safety risks only apply to the equipment being used or the physical environment being kept low risk. Employers must, by law, provide a safe working environment. This can mean ensuring their employees are safe from bullying, harassment, and all kinds of abuse even when working from home. If you are unsure of whether you are entitled to workers compensation while working from home then please, do not hesitate to contact Stacks Law Firm today. Our friendly staff will act on your behalf to get the compensation you deserve.

15.01.2022 Do smokers have rights? Smoking is banned in so many places now it is hard for a smoker to find a place where they can legally light up. Smoking has been banned in Sydney’s Pitt Street Mall and Martin Place since 2016. In July North Sydney Council banned public smoking in its CBD. Melbourne City Council is considering extending a smoking ban in Bourke Street Mall to the entire CBD. The law already bans smoking and using e-cigarettes in all enclosed public areas and certain o...utdoor public areas, including shopping centres, sports grounds, public transport stops, trains, buses, within ten metres of a playground and within four metres of an entrance to a public building. Under NSW strata law you can’t even light up in your home or on your balcony if the smoke drifts into other residences. Smoking is banned on common property unless specifically allowed by the body corporate. You can’t smoke or vape in a vehicle where there is a child. You can’t smoke in the open at many beaches. Employment law specialist Nathan Luke of Stacks Law Firm says employers have the right to ban smoking at workplaces. Smokers do not have a legal right to take smoke breaks, even outside the building, Mr Luke said. It is up to employers how they want to manage the issue of smoking during work time. Courts have ruled that workers can be sacked for breaking no-smoking rules. So, do smokers have any rights at all? Don’t smokers count under discrimination laws? Are smokers not deserving of freedom to make their lifestyle choices? Tobacco is legal, so surely smokers can light up where and when they like? The short answer is no, says Mr Luke. Nowhere in anti-discrimination law does it say smoking is grounds for claiming discrimination. Laws restricting places where people can smoke are designed to protect other people from second-hand smoke. Anti-smoking laws are based on public health concerns to protect the majority of people who don’t smoke. Just 12.8 per cent of adults now smoke daily, half what it was 20 years ago. Tobacco is the largest preventable cause of death and disease in Australia, killing 19,000 Australians a year and causing nine per cent of all deaths from disease. Even vaping using e-cigarettes is banned in smoke-free zones, even though it was hoped that smokers would switch from cigarettes to vaping because it is reputed to be safer. NSW Health warns that vaping contains chemicals that could be harmful. Smokers can legally indulge their habit only in restricted areas, and those areas are shrinking fast. Fines can be up to $300 for breaching smoking laws. See more

14.01.2022 Ruling Uber Eats couriers not employees could have wider impact When is a worker an employee or an independent contract worker? The line that separates the two classifications is becoming increasingly blurred, and the impact on workers can be substantial. That divide will be increasingly important as the hundreds of thousands of Australians who lost their jobs during the COVID-19 pandemic struggle to find new jobs when the economy recovers.... Employment law practitioner Emily Wittig of Stacks Law Firm says a recent decision in the Fair Work Commission on the status of Uber Eats couriers could have a wider impact than just the 60,000 people working for Uber. Uber Eats delivery courier Amita Gupta was appealing against an earlier rejection by the commission for unfair dismissal by Uber Eats. Uber had taken her off their books, saying she had failed to meet the company’s delivery time standards. The full bench of the Fair Work Commission, led by President Justice Iain Ross, ruled that she was not an employee of the company, and therefore did not come under unfair dismissal laws, Ms Wittig said. The case could have a major impact on other workers in the gig economy. It was an unusual decision, as the full bench also found the courier was not in a business relationship with Uber, even though the FWC agreed she did work for the gig business. The FWC found Uber Eats set couriers’ pay, banned couriers from delegating work, and hindered couriers from making their own agreements with restaurants for delivering meals. Uber had complete control over payment for couriers’ work, and enforced standards of delivery through a ratings system. The FWC ruled couriers lacked what it said were some of ‘the essential hallmarks of an employment relationship’, Ms Wittig said. Uber couriers can log on and off at will, can work for other food delivery outlets, can decide whether to accept deliveries or not, don’t have to wear a uniform or display a company logo, are responsible for their own vehicles, and Uber does not take tax out of their pay. But the FWC rejected Uber’s argument the couriers were conducting their own business, and that Uber was only an agent for the restaurants in arranging delivery. The Transport Workers’ Union is considering appealing against the FWC ruling, saying the judgement also found Uber was a transport service that has responsibilities to its workers. Uber Eats said the decision confirms its couriers are independent contractors. Whether a worker is an employee or contractor is a vexed issue. Anyone caught in this situation would be wise to consult a lawyer experienced in employment law, Ms Wittig said.

14.01.2022 Can I set conditions in my will? Can I impose conditions in my will for someone to do something before they can inherit my estate? What if I say they have to convert to Islam/Christianity within a week of my death or they won’t inherit a cent?... Is it legal to leave my farm or business to my son - but only if he keeps it going until he passes it on to his son? Can I say in my will my child will only inherit if they graduate from university? What if I set them another task like live with a sibling they hate for a year, or get married within a month? Lawyer Mark Howard, Director of stacks Law Firm, says a person writing a will (the testator) can impose conditions in their will so long as it is does not conflict with other laws such as anti-discrimination or public policy. Generally, a person cannot rule from the grave, but there is no specific law governing conditional gifts in wills. The legal position is based on precedent decisions made by judges on cases relating to marriage, relationships, religion and preservation of property. A prime example is the NSW Supreme Court 2014 decision in Hicken v Carroll which upheld the validity of a will that required four children to become Catholics within three months of their father’s death to receive their inheritance. Conditions imposed in a will that are not impossible to achieve, are not uncertain, or against public policy would generally be acceptable, Mr Howard said. For instance, leaving an estate to A so long as A played cricket for Australia would be impossible to fulfill. A condition that is uncertain or ambiguous could be challenged. For instance, there was a case where a person left their estate to a charity, but only for the use of white babies. That was declared void as against public policy. But if a person could only receive a benefit after they completed a university degree that should be acceptable, assuming the person has the ability and means to do the degree. Mr Howard said a way to maintain some control on how your assets are managed after death is to set up a Testamentary Trust Will. The Trust could only allow access to the estate for certain things such as the care of a person or pet. If they breach that trust they can be sued by the Trustee. It is best to get expert legal advice on how to set up such a Testamentary Trust to achieve what you want.

13.01.2022 Help! I’ve been hit with compulsory acquisition of my property Compulsory acquisition of people’s homes and privately owned property is occurring at almost record levels across Sydney and regional areas. For people being forced out of their homes and having their hard-earned property taken from them, it is horrifying news.... The government promises homeowners will get a fair price, but once the shock of receiving the acquisition notice has worn off, the nightmare of dealing with authorities begins. The one bit of good news for homeowners is that they are entitled to have a specialist lawyer on their side to fight for the best settlement possible and it’s free. By law, the authority acquiring the property must pay the legal fees of the person whose home is being acquired, along with the cost of expert valuations and other reports needed to substantiate claims for compensation. Mark Shumsky of Stacks Law Firm has provided legal advice to many people whose homes, investment properties or businesses were being acquired for the Western Sydney Aerotropolis, WestConnex, M12, Sydney Metro and other projects. Most people are not aware of the extra compensation they are entitled to receive beyond the market valuation, Mr Shumsky said. You should never accept the word of acquiring agencies who might tell you the value of the property is predetermined, that their valuation is final and can’t be increased. Don’t let yourself be bullied. You are within your rights to insist on getting your own valuation and your own legal expert to argue for you. The government has a full-time team dedicated to acquiring properties and property owners are often left dissatisfied. At Stacks we have been able to get payments for property being acquired increased by 15 per cent or more, depending on the circumstances. There are all sorts of claims homeowners can make as part of the compensation, including emotional attachment to the home, the cost of moving and need to buy a similar property. Stamp duty, legal fees incurred in buying a new home, and refinancing fees of mortgages are fully claimable. Businesses forced to move can also claim for several costs, including damage to the business, fit-out of new premises, removalist fees, phone and computer set ups, and advertising the new location. People without legal advice often get confused over timing requirements for claims and submission of necessary documentation for compensation. It’s far better to have a legal expert on your side to help you through the traumatic experience of having your home, business or investment property taken from you. And don’t forget, the government has to pick up the bill.

13.01.2022 Redundancy must still be paid if company loses contracts, court rules Low paid workers who lose their job when the company loses clients or contracts must still be paid redundancy entitlements, the Federal Court ruled recently. Mark Howard, business lawyer and Director at Stacks Law Firm, said the 266-paragraph decision will have wide ranging consequences for companies, especially in the difficult times of Covid-19.... Spotless Services had resisted paying redundancy to long-serving employees who were fired in 2018 after the company lost two major contracts for its cleaning services, Mr Howard said. The company had argued in the Federal Court that without the contracts, there was no work for its cleaners. Spotless argued that under section 119(1)(a) of the Fair Work Act 2009, there was no requirement to pay redundancy entitlements if the termination is due to the ordinary and customary turnover of labour. The Federal Court judges weighed just what this wording meant - whether it applied to service industries such as cleaning, whether the exception applied when a company lost a contract, and whether the company’s action contravened a national employment standard. The Fair Work Ombudsman and the union United Voice represented the sacked workers against Spotless. They won their case in the Federal Court in 2019, but Spotless appealed and the matter was ruled on by three judges in the Court of Appeal in July 2020. Spotless argued that it was customary in industries such as cleaning, maintenance and security to let workers go when their indirect employers, such as hospitals and shopping centres, changed contractors, Mr Howard said. In their consideration, the judges in the Court of Appeal said the object of the Fair Work Act is to provide a balanced framework for workplace relations including by ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through those standards, modern awards and minimum wage orders They said an employee in career or long-term employment with a particular employer, in which there is a reasonable expectation of continued employment, would not fall within the Section 119 exceptions for redundancy. From this judgement, the exception to paying redundancy would only apply if the employee had a ‘reasonable’ understanding their job would end in the ‘ordinary course’, Mr Howard said. Ordinarily workers get redundancy pay that starts at four weeks’ wages. It can reach 16 weeks under the default employment standards if their job is no longer required. One of the Spotless workers who was sacked and denied redundancy pay had been employed for 32 years. The ruling could prove costly for employers, Mr Howard said. The union is seeking payments for 14 members in the Spotless case, plus hundreds of thousands more sacked workers in similar cases around Australia.

12.01.2022 Court rules casual workers have leave rights A recent landmark Federal Court ruling on when some casual workers are entitled to the same rights as permanent staff is likely to have a major impact on both employers and employees. In a 273 page ruling, the Full Bench of the Federal Court found workers classified as casual who have a firm advance commitment from their employer to get regular ongoing shifts should be eligible for leave entitlements just like permanent employees.... It means more than a million regular, ongoing casuals could receive annual leave, sick leave, paid personal or carer’s leave, and paid compassionate leave, said Emily Wittig, who practices employment law at Stacks Law Firm. The May 20 WorkPac v Rossato decision upholds a similar 2018 decision by the Federal Court in WorkPac v Skene, which ruled that casual mine workers in regular and continuous employment could claim for unpaid leave entitlements. WorkPac v Rossato centred on coal mine worker Robert Rossato, who had been consistently employed for three and a half years by the labour hire company WorkPac at different mining projects while classified as casual in his contract, Ms Wittig said. WorkPac argued that Mr Rossato was paid the 25 per cent casual loading above the minimum rate of pay in lieu of any entitlements for paid annual and personal leave. The court disagreed, and ruled he was entitled to the same paid leave as permanent workers, as he had an ongoing commitment for employment, and therefore was not a casual. Ms Wittig explained that under the Fair Work Act, and as determined by the court in WorkPac v Skene, a casual employee is an employee who has no firm advance commitment by the employer to continue in the job. Casual work is associated with irregular work patterns, uncertainty, discontinuity, intermittency of work and unpredictability. An increasing trend among employers is to use labour hire companies to supply workers, rather than hire workers themselves, thereby avoiding such leave entitlements and job protection, Ms Wittig said. Many people working for the labour hire companies find themselves classified as casuals, working for years alongside permanent employees doing the same work and the same hours. Ms Wittig said the ruling doesn’t automatically apply to all casuals, but it opens the door for casual workers who have regular, continuing, certain and predictable employment to question whether they are entitled to benefits associated with permanent employment, such as holiday pay. Naturally employers sounded the alarm bells, warning it would cost $8 billion for businesses to pay the 2.6 million casuals the same leave entitlements as full timers. The government has warned it could weaken the economy and it may have to consider legislative changes.

10.01.2022 Business law changes over coronavirus With businesses large and small all over the country shutting their doors over the coronavirus crisis, it is important owners and managers know the changes to business laws the government has brought in to help ride out the economic storm. Business lawyer Tony Mitchell of Stacks Law Firm says a string of changes has been enacted to provide temporary relief to companies from statutory demands and liability for insolvent trading during the ...pandemic. The Coronavirus Economic Response Package Omnibus Act 2020 also contains temporary changes for individuals with bankruptcy notices. In brief, the main changes: increase the threshold for issuing a creditor’s statutory demand from $2,000 to $20,000 increase the threshold for commencing bankruptcy proceedings from $5,000 to $20,000 increase the period for responding to a creditor’s statutory demand or bankruptcy notice from 21 days to six months extend from 21 days to six months the period within which unsecured creditors cannot take action to recover a debt against a debtor who declares an intention to present a debtor’s petition remove directors from personal liability for trading while insolvent in relation to debts incurred in the ordinary course of business. The time to comply with statutory demands is extended from 21 days to six months. It’s vital that business owners and managers who have been hit by the economic downturn during the pandemic make sure they are fully aware of these temporary changes to insolvency and bankruptcy laws, Mr Mitchell said. By increasing the minimum debt required and increasing the time a creditor has to comply with a statutory demand, the government is trying to provide breathing space for businesses to deal with their creditors during the coronavirus crisis. The crucial words in the Act are ‘in the ordinary course of business’. This is intended to apply to a debt incurred while continuing a business over the next six months, while everyone is effectively in lock down and income is squeezed. It would include taking out a loan to continue paying employees, or shift operations online or to home delivery. But there are pitfalls. It does not protect a director from debts incurred before the Act came into force on March 25. It only applies to debts incurred during the next six months. Directors still need to act with care and diligence if going into debt, and to determine whether it is for a proper purpose. Directors would be wise to get legal advice before making a decision to go into debt and risk pressing on to trade out of difficulties. This crisis could last far longer than six months, and directors could face future litigation if they fall during the balancing act.

08.01.2022 Recording conversations and the law When one of the state’s top detectives falls foul of the law on recording conversations and leaves the police force in the middle of a major investigation, it would be wise for regular citizens to know how this sometimes confusing aspect of the law works. Former Detective Chief Inspector Gary Jubelin this month lost an appeal against his conviction and $10,000 fine for illegally recording a person he considered at the time to be a person o...f interest in the investigation into the 2014 disappearance of three-year-old William Tyrrell. Jubelin, who led the investigation, quit the force in 2019 after charges were brought against him. In April, Jubelin was found guilty in the Local Court of secretly recording four conversations with a man who lived next door. Jubelin told the court he made the recordings because he feared the person might commit suicide and any statements he made would be lost. Even though police had a warrant to install listening device surveillance on the person, this did not include Jubelin’s own phone, on which he recorded three conversations in person with the man and one on the phone. Jubelin did not ask the man’s permission to record the conversations, or notify him that the conversation was being recorded. The police officer was found to have breached section 7(1) of the NSW Survellance Devices Act 2007, which states it is against the law to record a private conversation without the consent of the other person, says lawyer Mark Howard, Director of Stacks Law Firm. Even though Judge Antony Townsden agreed the officer’s motivation was to help the investigation, he ruled his action breached the law, Mr Howard said. According to The Guardian Australia, the judge told the appeal court: In a democratic society, those placed in a position of authority have an obligation to exercise their power lawfully. This, the appellant failed to do. Mr Howard said the decision shows police are not above the law. Recording a conversation without permission carries a heavy penalty $11,000 and a maximum five years in jail. The aim is to protect privacy. There are exceptions, such as if police have a warrant, if the recording unintentionally hears a private conversation, if it involves the body-worn video of a police officer, or the use of listening devices in accordance with Commonwealth law, such as the Telecommunications (Interception and Access) Act 1979." There is a broadly worded defence in Section (3)(b)(i) of the NSW legislation that states if the principal party consents to a listening device being used, and recording the conversation is reasonably necessary for the protection of the lawful interests of that principal party, then recording can be legal without getting permission.

05.01.2022 Copyright and the Aboriginal flag The furore over the Aboriginal flag not being able to be used at sporting events unless a big fee is paid to the copyright holder highlights the legal bounds on what public objects can be owned. Many people were outraged to learn that the black, red and yellow Aboriginal flag, which has become such a proud cultural symbol for Indigenous people, is licensed by a non-Indigenous company.... The flag was designed in 1971 by Luritja man Harold Thomas. By the time of the Australian Bicentenary in 1988, it was very popular and a symbol of Aboriginal pride. In 1995 the government recognised it as an official flag of Australia under the Flags Act 1953. As the flag’s creator, Mr Thomas owned the copyright, and that was confirmed by the Federal Court in 1997. This meant the flag was protected under the Copyright Act 1968 and can only be reproduced with permission of the copyright holder. Mr Thomas sold worldwide commercial licensing rights for the flag to WAM Clothing, which pays him royalties from sales of the flag image on clothing and in commercial use. A company called Gifts Mate has the licence to reproduce the flag on merchandise, and Flagworld makes the flag under licence. The company owners are not Aboriginal. Under copyright laws, anyone wanting to reproduce the flag must get permission from the copyright holder, business lawyer Mark Howard of Stacks Law Firm said. Mr Thomas still holds the copyright, and WAM Clothing has the licence and the right to demand people get their permission or pay the required copyright fee if they want to put the flag on clothing, paint it on the grass of a football field, even get a tattoo of the flag. The government is considering buying the copyright from Mr Thomas, but they could legislate to allow ‘fair use’ of the flag. This would not breach copyright if the flag is used for charitable, social or cultural events, or private use such as tattoos. Mr Thomas could still license the flag for commercial uses. Mr Howard pointed out that the government has in the past legislated to control use of the word ANZAC. The word ANZAC comes under the Protection of Word Anzac Regulations, designed to prevent the word being exploited for commercial purposes or used in a way that denigrates what the word represents. The word can only be used with the authority of the Minister for Veterans’ Affairs. Under the Crimes Act 1914, a penalty of up to $51,000 may be imposed on a corporation for a breach.

04.01.2022 Catfishing is it legal? There have been growing calls to make catfishing illegal and penalise those who do it. After all, it involves lies, exploitation, manipulation and deception, it can cause immense grief and harm to the victim and it can even lead to suicide. Catfishing is the act of luring a stranger into a relationship via social media by creating a fake online persona. It involves inventing a whole new person who exists only online, a fake person who is far more at...tractive than the real person doing the catfishing. Chatting with Anneka Frayne of Stacks Law recently, Anneka says the act of catfishing, while often cruel, is not illegal in itself despite the harmful consequences it may cause. As yet, there is no specific law against catfishing when the victims are adults. Just like using a fake identity when you go on a blind date, using a fake identity online to meet an adult is not a crime in itself. But some actions that use catfishing are illegal under the Crimes Act, such as fraudulently obtaining property or financial advantage through deception. Anneka reminds us that fraud can get ten years jail in the District Court, but it has to be proven that the victim lost money or property through the deception, and that the fraud was intentional or reckless. Criminal laws have been brought in against anyone intentionally trying to procure or groom children under the age of 16 for illegal sexual activity. Section 66EB of the NSW Crimes Act 1900 doesn’t use the term catfishing, but says using the internet, telephone, computer image or video to groom, procure or meet a child for unlawful sexual activity can get 12 years in jail, or 15 years if the child is under fourteen. It says a person pretending to be a child on the internet to groom children is a crime, even if they are communicating with an adult. This enables police to charge a person who thought they were communicating with a child, even if they weren’t. A notorious 2007 case involved a 50-year-old paedophile who used 200 fake online identities to prey on underage girls and ended in the assault and murder of 15-year-old Carly Ryan. After this, federal parliament brought in the so-called Carly’s law in 2017. Section 474.25C of the Commonwealth Criminal Code Act 1995 made it a crime even to plan or prepare to use a carriage service - the internet or telephone to misrepresent age or gender to groom underage children for sex. The penalty is ten years’ jail. Police have used Carly’s law to charge online predators. See more

02.01.2022 Court delivers good news for pet owners A legal wrangle over whether a deaf and partially blind 14-year-old miniature Schnauzer called Angus can live in a Sydney apartment with his owner developed into one of the greatest court battles over a pet in recent times. For five years, Jo Cooper tried to convince the owners’ corporation of the luxury Horizon high rise to allow her to keep her beloved dog in her apartment, despite a bylaw banning all pets in the tower.... Mark Howard, Lawyer and Director of Stacks Law Firm Goulburn, says a recent decision in the NSW Court of Appeal has overturned earlier legal rulings banning the dog, and Angus will now be allowed to live out his sunset days with his owner in her apartment. The ruling by the three judges in the NSW Court of Appeal could have far-reaching consequences for people who live in apartment blocks, Mr Howard said. The judges ruled that the Horizon’s longstanding ban on pets was a breach of section 139 of the NSW Strata Schemes Management Act 2015, which provides that by-laws can’t be ‘harsh, unconscionable or oppressive’. The judges said the ban restricted the lawful use of each lot and lacked a rational connection with the enjoyment of other lots and the common property. The by-law is oppressive because it prohibits the keeping of animals across the board, without qualification or exception for animals that would create no hazard, nuisance or material annoyance to others, the judges said. The strata committee argued the ban was the will of the majority, but the judges ruled the majority did not have the right to become a dictatorship. The judges said democracy operates under legal constraints designed to protect minorities from oppression. Dogs that bark incessantly could be a problem in an apartment block, but the judges said there were provisions in sections 153 and 158 to deal with such problems. It was a mammoth judgement, citing 21 legal precedents and containing 102 paragraphs and 46 endnotes. Angus may be old and past his prime, but his impact on the legal position of strata governance could last for many years beyond his time on earth. The ruling means no apartment building in NSW will be able to enforce a blanket ban on pets. As lawyers for Ms Cooper pointed out, such a ban would even include goldfish and birds in cages. Around 5.7 million of Australia’s 9.2 million households have a pet, so the judgement will have a wide impact, Mr Howard said. It also demonstrates that even if a majority in a strata committee decree something, there is a limit set in law that it can’t be harsh or oppressive, Mr Howard said.