Our Articles of Interest

Have you ever been unfairly dismissed?

In the current state of the economy, and employees being dismissed and made redundant left right and centre, it is prudent to be aware of your rights as an employee. By that same token, it is worthwhile that employers take the time to understand their obligations when making the decision to dismiss an employee. 
If a situation arises where a dismissal has occurred, consider whether the dismissal was fair. Below is a summary of the law governing unfair dismissals, consideration of whether these laws apply, and the remedies available where a dismissal has been deemed unfair......

Are pre-nuptial agreements worth the effort?

There are a variety of financial arrangements under the Family Law Act 1975 (Cth) (‘the Act’). These agreements are not unique to married couples, and can be undertaken by those who are in a de facto relationship. Agreements can be made any stage of the relationship, including before marriage and after separation. A “prenuptial agreement” is the term used to describe agreements entered into before marriage. Parties entering such agreements do so for a variety of reasons, but parties entering such agreements should be concerned about their validity and enforceability.......

Restraints of trade

A restraint of trade can be found in any contract, though is typically found in an employment contract. They are included in employment contracts to try and restrict a former employee’s conduct on the cessation of the employment contract. The clauses seek to protect the employer’s business interests.......

Romalpa Clauses

Inventory is an important asset to retailers. It represents the main form of revenue earned by retailers, and is critical to the sustenance of any business. To protect their interests, most retailers include retention clauses in their contractual agreements. These retention clauses are commonly referred to as Romalpa clauses, deriving their name from the landmark English case, Aluminium Industrie Vaasen BC v Romalpa Aluminium Ltd.  Romalpa clauses serve to keep the title to the goods for sale with the seller under the buyer fulfils their required obligations, most often being the payment of the purchase price. As such, the Romalpa clause retains the retailer’s title to the goods until the full purchase price has been paid.......

Operator Onus Offence

Ever been in a situation where you've lent your car to a friend or family member, and then a month later you receive a fine you’re not responsible for? This is quite common and known as an “operator onus offence”.
What’s the law?

Generally speaking, there are some types of road offences where the identity of the driver cannot be established at the time the offence is detected. Consequently, the person who is last known to have possessed or controlled the vehicle is presumed to have committed the offence and is hence held responsible for the offence.
However, this rule operates subject to an exception.........

Breach of copyright – Where is the smoking gun?

We had conduct of a breach of copyright case that involved what can be termed a fight between David and Goliath in every sense. The matter was in the fast track of the Federal Court of Australia between a relatively large building company (the Applicant) and another builder and his company (the Respondents).

The Applicant was represented by a major national law firm. We, many times smaller, represented the Respondents.

The Applicant alleged that in 2000 our clients breached copyright by engaging a prominent architect with 20 years experience, paid him reasonable fees, and then consciously or subconsciously gave instructions to the architect to design a home similar to one of the Applicant’s display homes........

Discharge of offender without proceeding to conviction

Sentencing offenders is the final and arguably the most important part of the Criminal justice system. In Victoria, the governing principles of sentencing are punishment, deterrence, rehabilitation and denunciation of, and/or community protection from the behavior of the offender.

To this end, Magistrates and Judges have wide discretionary powers pertaining to the sanctions they may impose following a finding of guilt.

Though legislation that creates an offence usually also indicates the applicable maximum penalty, this does not exhaust the sentencing options given to the Court.

Not all sanctions depend on the court formally recording a conviction; a finding of guilt may be enough........

Handling Stolen Goods and Dealing with Property Suspected of being Proceeds of Crime

In Victoria, criminal proceedings, from the most serious to minor, are commenced and conducted under the Criminal Procedure Act 2009 (Vic). Being charged with a criminal offence can be traumatising. Serious criminal charges are called indictable offences and being charged with an indictable offence can have serious consequences for the accused. You could go to jail if you are found guilty.

Before entering a plea it is important to get expert legal advice as a competent defence can often lead to a less harsh penalty, acquittal or even the withdrawal of charges. Even if you plan to plead guilty you should speak to a lawyer who will be able to obtain the brief of evidence against you in order to determine the strength or weakness of the prosecution’s case. A lawyer may also be able to negotiate........

About to be interviewed by the police?

When you are about to be interviewed by the police, it is an advantage to know what you should do, and more importantly, you need to know what you must not do.

In Victoria, and indeed like many other common law jurisdictions, you may be charged with a criminal offence by way of a Summons or a Warrant. Either way, it is important to know that with a few exceptions, you are entitled to remain silent. The exceptions are usually that you have to provide the police or the appropriate authority with your name and address. For example, in the case of a traffic accident, you need to provide your name and address, details of the driver and other details like your insurer’s details........

Why make a Will? What is a probate application?

It is often the case that most of us would leave difficult tasks last on our “Things to do” list. Alternatively, some would put them first on their list and would by-pass those difficult tasks year in and year out. Making a valid Will is one of those tasks, even though it is not at all difficult for lawyers to draft a simple Will.

In Victoria, the Wills Act 1997 (“the ACT”) governs the law relating to the making of your Will. The basic requirements are that you must be of sound mind and your Will must be witnessed by two people. It is also advisable to nominate two alternative executors. The Act actually makes it clear that a Will made by a minor is not valid, unless that minor is married or about to be married.....