Month: July 2018

MOST Australians probably like to think they have a right to a fair trial, however, as a famous case from the High Court in 1996 showed this is not the law.

In the case in question the New South Wales State Parliament passed an Act which meant a man approaching the end of his jail sentence would be imprisoned indefinitely.

The man in question had been jailed for the manslaughter of his wife.

From behind bars he had written a series of threatening letters – to the relatives of his deceased wife and those letters had given rise to concerns he intended to kill them when he got out.

Click the links below to read the other posts on our blog:

> The 11 things you should know before getting a divorce

>Man’s surprising defence to drink-driving

> Your rights if police stop you for a random drug search

>Five things you should know before posting on social media

The issue gained a great deal of media attention and in response to public concern the State Government sought to keep the man in jail.

It did this by passing a law called the Community Protection Act, which identified the man by name and said he was not to be released but he could appeal his ongoing incarceration to the Supreme Court.

He did this, but his appeal was unsuccessful, at which point, he appealed to the High Court.

There one of the country’s top-judges, Daryl Dawson, made the terrifying comment that it was well within the powers of state governments to pass laws jailing citizens indefinitely and without a trial.

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“The Parliament of New South Wales has the constitutional power to pass legislation providing for the imprisonment of a particular individual,” he wrote.

“And that is so whether the machinery for the imprisonment be the legislation itself or the order of a Minister, public servant or tribunal.”

But, as he went onto note, what state parliaments can’t do is involve courts in the process as that invokes Chapter III of the Commonwealth Constitution.

“Whatever else the Parliament of New South Wales may be able to do in respect of the preventive detention of individuals who are perceived to be dangerous, it cannot, consistently with Chapter III of the Constitution, invoke the authority of the Supreme Court to make the orders against the appellant by the methods which the Act authorises,” he wrote.

“This is because the Act and its procedures compromise the institutional impartiality of the Supreme Court.”

Essentially while the state government may be able to lock you up indefinitely and without trial – it can’t involve the courts in that process because that would undermine their integrity.

Most people, even many lawyers, think that for someone to claim a share of your assets you need to be either married, or live together for two years.

But imagine splitting up with your ex-girlfriend, or boyfriend, before the two-year period ends, only to have them come back and claim a share of what you own.

That was the scenario which played out for an Australian woman when she was told by the family law court she had been living in a de facto relationship – despite the fact she’d only been living with the partner in question for 18 months – not the full two-year period stated in the Family Law Act.

Click the links below to read the other posts on our blog:

> The 11 things you should know before getting a divorce

>Man’s surprising defence to drink-driving

> Your rights if police stop you for a random drug search

>Five things you should know before posting on social media

The reason was that 10 years earlier the same-sex couple had spent four years living together and the court found it had to take into account the total amount of time they had spent together, not simply the length of the most recent stint.

The woman had even had another de facto partner in the 10 years they had been apart, but the Full Family Court of Australia found this didn’t matter because of the way the relevant legislation was worded.

Section 90SB of the Family Law Act states a couple has been living in a de-facto relationship if: “the period, or the total of the periods, of the de facto relationship is at least two years.”

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The words: “or the total of the periods” were held by the court to mean it couldn’t legally ignore the earlier time the couple had spent living together and it was open to the other woman in the relationship to chase her ex-partner’s assets in the courts.

In another judgment a man who stayed with a woman just three days a week was found to be living with her in a de facto relationship – despite not living in their apartment full-time.

In that, North Queensland based, case the court’s judgment noted the man involved had contributed more than $1 million to buying an apartment the couple shared and he kept an electric toothbrush, shaving equipment and most of his business clothes at the residence in question.

Other facts, specifically that the couple were together at significant family occasions like Christmas and New Year and that he had paid the majority of the mortgage on the apartment they were sharing, contributed to the decision that a de facto relationship was in place.

They had also been living under the arrangement in question for many years.

Key family lawyer at Strategic Lawyers, Robert Ballais, said subjectivity around when a de facto relationship was in place was an important reason for people to see a lawyer and get a binding financial agreement when they start living together – not just when they get married.

“Sometimes in cases like this a couple can break-up and one half moves-on with someone else and then the new couple buy a house together,” Mr Ballais said.

“But if there’s no property settlement in place with the ex, that new house becomes part of the property-pool and the new couple can end up being forced to sell the house they’ve bought, in order to pay the settlement.

“You often hear people say a binding financial agreement – what Americans call a pre-nuptial – isn’t worth the paper it is written on.

“That’s simply not true; they are a powerful legal document and while the courts will take into account the share of assets a person brings into a relationship at the beginning, the share people with substantial assets will get is almost certainly less than if they had a legal agreement in place at the start.”

Under Australian law both de facto and married couples have two years from the date of separation to reach a settlement, or get a court order, on the division of their assets.

“However, the courts have set the bar quite low for people applying to get a settlement outside of the two year period, meaning in some cases people who thought they could move on with their lives unexpectedly found themselves involved in a costly dispute with their ex,” Mr Ballais said.

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Anyone who’s in business knows you need to pay your debts, however, few people know how serious things can get if you don’t pay on time.

Under Australia’s Corporations Act a company that is owed more than $2,000 can serve something called a statutory demand on another business that owes it money.

The statutory demand is essentially just a bill – except not paying it has very serious consequences.

If your business needs to call in a debt, speak to one of our lawyers

Most importantly if the statutory demand notice isn’t paid, within 21 days, the company, or person, that served it can apply to the courts to have your business legally wound up – or closed.

“Serving a statutory notice of demand can be a powerful business tool for companies trying to call in debts,” commercial litigation lawyer at Strategic Lawyers, Steve Hodgson said.

“On the other hand, if you’re served with a notice of statutory demand, it’s important to seek legal advice as soon as possible as the consequences of failing to pay by the necessary deadline can be dire.

“There are also defences available to businesses which are served with a notice that’s incorrect.

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“These include where the company claiming it is owed money has in fact not lived up to its side of a deal – that would mean you can make an offsetting claim.

“And if you’re withholding the payment they’re demanding because a separate transaction has gone awry – then the courts may find in your favour.

“However, it always going to be better to seek legal advice as soon as you get a notice of statutory demand, rather than risking your company getting wound up.”

The law is very specific on the ways notices of statutory demand must be served because it would be unreasonable if companies were shut down over debts they didn’t know they owed.

And while in some cases sticking the document to the front door of a business has been held to be sufficient evidence it has been served, in other cases, the law is much more complicated.

For example, if the notice is sent by fax or email then the company that sent it needs to show the fax was received or that the email was opened – essentially that the company they were trying to communicate with was aware they’d been sent the notice.

The method most law firms use will be to send the notice via registered post and in most cases, that will be enough for the courts to accept that it was sent.

However, in some rare cases the postal rule has been overturned.

“For this reason it is always worth employing lawyers to ensure the notice is served correctly and that the necessary evidence is collected,” Mr Hodgson said.

A CAIRNS man’s drink-driving charge was overturned when a Judge found he consumed liquor after leaving the scene of a crash.

In the unusual case, which appeared in the Queensland District Court, just less than 10 years ago, it was established the man drove off after running into a Japanese tourist on a bike.

The crash was relatively minor and there was no evidence the cyclist was hurt – with witnesses saying the damage was mostly to the bike.

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In the wake of the crash the man accused of drink-driving got back in his car, drove home and drank the remainder of a bottle of sparkling wine which he had opened before going out.

He then started drinking a second bottle.

Soon afterwards police arrived and undertook a breath test – which returned a reading of 0.152 per cent – more than three times the legal limit.

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Under Queensland Law police can breathalyse a person they suspect of drink-driving up two hours after they have gotten out of the car.

The man’s friend, who was over for dinner, backed up his testimony that he’d only drunk one glass of wine before ducking out to the shops to get extra ingredients.

Click the links below to read other stories on our blog:

>>Are speed cameras accurate? When police lose in court

>>Crazy legal way your ex can come after your assets

>>Five things you should know before posting on social media

>> Your rights if police stop you for a random drug search

>>The 11 things you should know before getting a divorce

When the case went before a Magistrate the man’s testimony was not accepted and he was found guilty and convicted.

However, the conviction impacted his ability to work as a commercial driver and some six-years after initially appearing in the Magistrate’s Court the man appealed.

On appeal the Judge found there was not enough evidence to discount the man’s testimony  that he was not drunk when he was driving and his conviction was set aside.

Although a separate conviction for careless driving was upheld.

In another, similar matter, from Townsville, a Judge sent a case back to be heard by a different Magistrate after a man claimed he drank two cans of rum between when he crashed his car and the police arrived.

However, in that case before the matter was heard by the new Magistrate the man changed his plea to guilty.