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  • Expert Witness Survives Challenge

    Expert Witness Survives Challenge

    The acceptance of expert evidence by a commissioner of the Land and Environment Court was unsuccessfully challenged in a recent appeal.

    The appeal arose from an application to modify a development consent for the construction of a dwelling house. The consent, which was granted in 2001, incorporated a design for a driveway to access the dwelling and the modification application involved a significant reconfiguration of the driveway.  The driveway was steep and engineering evidence was called by both sides.

    The council’s evidence was given by its development engineer.  He held formal academic qualifications in engineering surveying but not in engineering but had extensive experience, spanning almost 40 years in local government, in domestic driveway design.

    His evidence was challenged by the applicant on two grounds.  One was that he did not have appropriate qualifications to give expert engineering evidence to the court as he had no formal engineering qualifications.  The other was that, as an officer of the council, he had a conflict of interests and could not be regarded as an appropriate person to give expert evidence to the Court.

    Both grounds of challenge were rejected by the court in a decision handed down last week.

    On the first ground, Moore J held that the qualification for a person to give expert evidence is not that they have a university-based qualification but that they can demonstrate that from their specialised training, knowledge or experience, they have obtained the necessary degree of specialised knowledge or skill to be regarded able to speak authoritatively about it.  In this case the council witness clearly had significant relevant experience and an appropriate and relevant qualification to give expert evidence on the technical aspects of the proposed driveway design. His Honour commented (at [72]) that:

    Indeed, to hold that the absence of a university-based qualification would disentitle Mr Clare from being accepted as an expert for the purposes of assessing Mr Doyle’s application would be intellectual arrogance of the highest order. It would also be bad at law!

    The court also rejected the second ground of challenge, saying that neither the expert witness nor the council as his employer had any pecuniary interest or other direct or indirect interest in the outcome of the proceedings.  Moore J said that a conflict of interests could arise which could prevent a witness from meeting the obligations for independence required of an expert witness where they might be perceived as having a direct or indirect pecuniary interest arising out of their employer’s role in particular proceedings.  The exclusion of such a potential witness may not be unreasonable in such a case, depending on the particular circumstances.

    However, his Honour observed that such a situation does not arise in the case of a council employee when the council’s position in the proceedings is consistent with the position adopted by the council employee.  The Court noted that a contrary position arises where the position adopted by the council is inconsistent with the approach recommended by the council officer and observed that, to avoid such a conflict, it was customary for councils to engage external experts when that situation occurred.

    For more information about this case, or on expert witnesses, please contact Alan Bradbury.

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  • Competition Consumer Act: Business Breakfast Club April Summary

    Competition Consumer Act: Business Breakfast Club April Summary

    UPDATE: On 6 November 2017, changes to the Competition and Consumer Act 2010 (Cth) took effect.

    This month at Business Breakfast Club, we discussed changes to the Competition and Consumer Act 2010 (the Act) which change the notification regime and extend the type of prohibited conduct. The changes make it easier for small businesses to obtain legal protection from potential breaches of the competition laws which usually prohibit businesses from collectively bargaining with a customer or supplier. In particular, we focused on the illegal practices of “concerted practice”, “cartel conduct” and “collective bargaining”. BAL Legal Director, Mark Love shared some of his insights on the topic. Mark touched on:

    Why do you need legal protection?

    Competitors who engage in collective bargaining may be in breach of the Act. The most effective way for businesses to collectively bargain without risk of breaching the Act is to lodge a ‘notification’ with the Australian Competition and Consumer Commission (ACCC) which identifies the proposed bargaining group and the type of conduct they intend to engage in. The notification process has been available since 2007, but has historically been viewed by the business community as not providing a substantive practical benefit. This is because the notifications were interpreted narrowly by the ACCC so it was still possible to breach the Act. Now, notification can be given for a class of persons both in relation to the beneficiaries of the bargaining group and the targets (customers or suppliers). However, with the broadening of the notification regime comes a third basis for infringement: concerted practice.

    Collective bargaining

    Collective bargaining is an arrangement whereby two or more competitors come together to negotiate terms, conditions and prices with a supplier or a customer. Essentially, collective bargaining tends to benefit smaller businesses who do not have the volume (of sales or purchases) alone to give them bargaining power. Permission to collectively bargain can be obtained through the notification or authorisation procedures of the Act provided there is some “public interest” in allowing the conduct.

    Cartel conduct

    Cartel conduct encompasses agreements between competitors to fix prices, divide markets, rig bids, or restrict outputs thus restricting competition.  To prove “cartel conduct” the ACCC is not required to prove that there has been a lessening of competition as a result of the conduct, rather the ACCC must demonstrate that:

    1. the persons concerned are in “competition” (whether for customers or suppliers);
    2. there is a relevant “purpose” to the arrangement or understanding; and
    3. there is a relevant contract, agreement or understanding to that effect.

    The Court considered “cartel conduct” in ACCC v Australian Egg Corporation Limited [2017] FCAFC 152. In that case, the ACCC alleged that Australian Egg Corporation Limited (AECL) and two egg producing companies, Ironside Management Services Pty Ltd (T/A Twelve Oak Poultry) and Farm Pride Foods Limited attempted to induce egg producers who were members of AECL ‘to enter into an arrangement to cull hens or otherwise dispose of eggs, for the purpose of reducing the amount of eggs available for supply to consumers and businesses in Australia’.

    Virtually every aspect of the ACCC’s case against AECL was found by the presiding judge to be true and based on largely uncontested facts, specifically the conduct of the parties at an industry summit brought together urgently to address the very issue of the oversupply of eggs and the damage that was apt to do to egg producers and the Australian Egg industry. However, despite the findings of fact the Court found AECL was not in breach of the Act because the conduct was something “less than a binding contract or arrangement”.

    Concerted practice

    As a result of the AECL decision, the Act now includes a third basis of infringement which is a hybrid of the cartel and collective bargaining provisions. Concerted practice is a form of coordination between competing businesses by which, without them having entered a contract, arrangement or understanding, practical cooperation between them is substituted for the risks of competition. There must be the purpose or likely effect of substantially lessening competition which has been held to be “whether the effect of the arrangement was substantial in the sense of being meaningful or relevant to the competitive process”.

    Q&A Corner

    Q. What are the risks associated with lodging a notification to the ACCC?

    A. Lodging a notification to the ACCC requires businesses to disclose information regarding the proposed conduct in a sufficiently precise manner. The ACCC can then consult with interested parties and assess the notification. As part of the notification, it is important that you:

    • outline the areas of competition likely to be affected by the proposed conduct;
    • describe the likely public benefits from the proposed conduct; and
    • specify the likely public detriments (including any adverse effect on competition).

    Some businesses may be reluctant to disclose this information as it may prompt the ACCC to carefully scrutinise the conduct of the businesses engaged in exclusive dealing. Further, once notification is lodged with the ACCC, it is published on the ACCC’s public register. Businesses must determine whether the risks associated with notifying the ACCC of the proposed conduct (the publication of business information) outweighs the risks of not obtaining the ACCC’s “blessing” for the conduct. Remember, breaches of the cartel, collective bargaining (and now) concerted practice provisions can result in criminal prosecution.

    The Business Breakfast Club is held on the second Friday of each month, the next one is on 11 May. If you would like to attend, please contact us to be added to the invite list.

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  • Investigations of Staff Misconduct Complaints

    Essential Guide to Local Government Law: Investigating Staff Misconduct Complaints

    Investigations of staff misconduct complaints, including workplace bullying can be difficult. It is important to carry out your investigations in a reasonable manner: below is a guide on how to best investigate staff misconduct complaints, including workplace bullying.

    Key instruments

    1. Local Government (State) Award 2017 (‘Award’).
    2. Local Government Industry Guidelines on Workplace Investigations under section 36 of the Award (‘Guidelines’)
    3. Model Code of Conduct for Local Councils in NSW (‘the Code’)
    4. Procedures for the Administration of the Model Code of Conduct (‘the Procedures’)

    Key questions to ask when a complaint has been made

    How serious is the complaint?

    • If the complaint is minor, dated, or there are mitigating factors, then it may be best dealt with at a management level. There is discretion under both the Award (clause 36) and the Procedures (at 5.2) to handle a complaint this way.
    • What will be achieved by escalating (or not escalating) the complaint? At law, the only legitimate purpose to invoke civil disciplinary proceedings is to protect the Council (and public confidence in it). Invoking proceedings to simply ‘punish’ an employee is unnecessary and impermissible.

    What process do I need to follow?

    • Establish if the complaint is most accurately characterised as a performance issue, a conduct issue, both, or neither, and adopt the corresponding process. You may need to get more particulars to answer these questions (i.e. who, what, how, where, when etc). If you think the complaint, if substantiated, might amount to a breach of the Code, identify with precision what particular section(s) of the Code are involved.

    Remember that there may be multiple processes to follow, and ensure your process complies with all applicable processes. Key potentially applicable processes include:

    • the disciplinary process set out at cl 36 of the Award (and the Guidelines);
    • the Procedures for Administration of the Model Code of Conduct; and/or
    • the Public Interest Disclosure process.

    Key considerations once a decision has been made to Investigate:

      1. It is important to follow all applicable procedures. Make sure you know who has what role.
      2. Remember that the employee has a right to be represented in any Investigation.
      3. Most Investigations regarding staff can be dealt with ‘in-house’, but consider whether Council needs assistance of an external body to carry out the Investigation. This is particularly advisable in cases concerning serious or complex allegations, sensitive subject matter, where an actual or perceived conflict of interest exists, or where Council doesn’t have the resources to conduct the investigation expeditiously.
      4. Any sanctions or disciplinary responses for proven misconduct must be only those necessary to ‘protect’ the Council (and public confidence in it). Disproportionate sanctions are impermissibly punitive.

    Key things to remember in all investigations:

    Procedural Fairness

    Procedural fairness is owed to the respondent, not the complainant.

    In essence, the rules of procedural fairness require:

      1. the person who may be subject to an adverse finding is ‘heard’ in a manner appropriate to the circumstances;
      2. the decision maker is able to bring an impartial mind to the question before him or her (and is seen to be able to do so); and
      3. decisions are made on the basis of logically probative evidence.

    In particular, the employee concerned has a right:

      1. to receive clear notice of all allegations and how, precisely, they might offend the Code;
      2. to receive all relevant information before responding to the allegations;
      3. to be given a fair amount of time to consider the allegations and supporting materials before being required to respond; and
      4. for their response to be received and genuinely considered before an adverse decision is made.

    Suspension

    In certain circumstances it may be appropriate to suspend an employee while an investigation is being carried out. However, suspension as a disciplinary tool should be used sparingly and only when it is necessary for the integrity of the investigation and protection of the Council.

    Work Health and Safety

    It is important to carry out your investigations in a reasonable manner so as to reduce the risk of mental health injuries to those involved.

    Need more help?

    Our Employment and Workplace Lawyers provide effective solutions to help manage your workplace and employees, while minimising your exposure to risks and issues. Where claims are made by employees, we are experienced advocates in all workplace jurisdictions, including the Fair Work Commission and the Federal Courts.

    For further advice on investigations into staff misconduct complaints, please contact Gabrielle Sullivan, Director of Employment and Workplace Relations, or Alan Bradbury, Director of Planning, Environment and Local Government.

    Read more Essential Guides to Local Government Law.

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  • 4 BAL Directors ranked in the 2018 edition of Best Lawyers - Australia

    4 BAL Directors ranked in the 2018 edition of Best Lawyers - Australia

    Four BAL Directors have been recognised for their legal excellence in the 2018 edition of the Australian Financial Review’s Best Lawyers Australia list. Produced by a peer review company and published by the Australian Financial Review, the list is compiled following an extensive evaluation process. The list includes more than 3,300 lawyers from 330 law firms nationwide, up from more than 3000 last year.

    The directors have been successful in the following practice areas:

    • Alan Bradbury – Government Practice, Planning and Environment Law;
    • John Bradley – Leasing Law, Real Property Law;
    • Mark Love – Commercial Law, Insolvency and Reorganisation Law, and Corporate Law; and
    • John Wilson – Labour and Employment Law, Occupational Health and Safety Law.

    This is the ninth consecutive year the Alan Bradbury has been acknowledged for his expertise. Managing Legal Director John Wilson makes his sixth appearance in the list, while Mark Love and John Bradley were again recognised for their respective practices.

    John Wilson congratulated his fellow Legal Directors on their achievements.

    “A listing in Best Lawyers is a considerable honour, reflecting as it does the praise of fellow practitioners in each speciality,” he said. “For three of my colleagues and I to be included speaks highly to the calibre of our team at Bradley Allen Love.”

    Best Lawyers is the oldest and most respected peer-review publication in the legal profession. A listing in Best Lawyers is widely regarded by both clients and legal professionals as a significant honour, conferred on a lawyer by his or her peers. For more than three decades, Best Lawyers lists have earned the respect of the profession, the media, and the public, as the most reliable, unbiased source of legal referrals anywhere.

    The full list is available here.

    BAL directors - best lawyers 2018

    Above: Mark Love, John Wilson, John Bradley and Alan Bradbury, – listed in The Best Lawyers in Australia© 2018

    ABOUT BEST LAWYERS

    Best Lawyers is the oldest and most respected attorney ranking service in the world. Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. 83,000 industry leading attorneys are eligible to vote from around the world, and Best Lawyers® received almost 10 million evaluations on the legal abilities of other lawyers based on their specific practice areas. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honour.

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  • Builders beware - owners given clarity on shoddy building work in off-the-plan apartments

    Builders beware: owners given clarity on shoddy building work in off-the-plan apartments

    A building dispute running for the better half of two decades between the owners of Units Plan 1917 and the developer, Koundouris Projects, appears to have finally come to an end on 16 February 2018 with the High Court refusing Koundouris’ application for leave to appeal against the decision of the ACT Court of Appeal in Koundouris v Owners – Units Plan No 1917 [2017] ACTCA 36.

    Originally heard in 2016, the matter concerns a claim by the owners of Units Plan 1917 against the builder, Mr Koundouris, in relation to the construction of the Lagani apartment complex and the various issues in the complex following its completion, including the existence and ongoing water leaking and damage in units and the cracking of masonry and facades. The matter heard was complex, particularly due to the various changes in legislation having taken place during the construction phase, and turned on the interpretation of the statutory warranties contained in the Building Act 1972 (ACT) (now repealed) and the Building Act 2004 (ACT). Though the primary judge held that Mr Koundouris had indeed breached these statutory warranties, it was the decision of the ACT Court of Appeal that provides greater certainty to unit owners, builders and developers alike as to the application of the statutory warranties in off-the-plan contracts for sale.

    The ACT Court of Appeal largely upheld the primary judge’s decision but made the following important distinctions:

    1. It is not necessary for a builder and developer to have a written contract in place for the statutory warranties to apply;
    1. The statutory warranties extend to the defined parts of the unit titled building, being load bearing walls, columns, footings, slabs and balcony’s;
    1. The statutory warranties operate both during construction and following completion;
    1. The source of an owners rights for breaches of the statutory warranties arise as the successor in title but can also arise for successive owners as the statutory warranties are implied in the contract for sale; and
    1. Unsuccessful repair works (where there is an inherent issue with the construction of the building) throughout the statutory warranty period may lead a builder to breach the statutory warranties repeatedly allowing a claim to be brought against the builder for an extended period of time.

    Though some might suggest that the decision of the ACT Court of Appeal may discourage builders from attempting to repair building defects for fear of inadvertently extending the limitation period under the statutory warranty, the decision makes clear that the intention of the statutory warranties are to protect the consumer from shoddy building work and that the provisions of the legislation should be interpreted accordingly.

    Written by Benjamin Grady and Alexander Paton. If you require further information or advice in regards to your rights and obligations concerning building defects, please contact us.

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  • Financial Exploitation through Powers of Attorney and the Remedies

    Financial Exploitation through Powers of Attorney and the Remedies

    Thankfully, more people are becoming aware and talking more openly about Elder Abuse and its prevalence among the Australian community. The most common type of elder abuse is the financial exploitation of a close elderly family member (followed by psychological and physical abuse).

    Unfortunately, much of the financial exploitation stems from misuse by an attorney appointed pursuant to a Power of Attorney document.

    This article presents a brief summary on how financial exploitation through a Power of Attorney can take place, and the remedies available against a “rogue” attorney.

    How does Financial Exploitation Take Place

    Putting in place a Power of Attorney has practical advantages – it is a relatively low cost, informal and private appointment by a donor allowing the appointment of a person or persons (the “attorney”) to make decisions on the donor’s behalf with regard to their financial and property matters.

    Unfortunately, it is the informal, private and unregulated nature of a Power of Attorney that makes it susceptible to misuse.

    A Financial Management Order by contrast requires a formal application to the relevant State or Territory Guardianship or Financial Management Board or Tribunal (in the ACT, this would be the ACT Civil and Administrative Tribunal or simply, “ACAT”). The Board or Tribunal is then responsible for ensuring a decision is arrived at having regard to all the evidence, including medical evidence, arguments and submissions by interested persons and that a decision is ultimately made in the best interests of the interested person.

    Perhaps one of the most notable cases of financial exploitation was highlighted in the case of Brennan v State of Western Australia[1]. Mr Kopec was a polish migrant living in Western Australia with very few relatives in Australia. He lived by himself on a farm and was suffering from deteriorating physical and mental health. Mr Kopec appointed Damien Brennan, a legal practitioner as his attorney pursuant to an Enduring Power of Attorney. Over the span of the next 8 years, Mr Brennan continued to misappropriate close to $900,000 of Mr Kopec’s estate including continuing to operate the Enduring Power of Attorney well after Mr Brennan had died.

    A more recent case involving the misappropriation of funds by an attorney is the case of Mezzapica v Mezzapica[2] which was handed down in November 2017. This case involved an elderly Italian mother who had appointed her two sons as her attorneys. After the mother’s death, one of the sons (Robert, the Plaintiff) questioned a number of transactions which were entered into by the other son (Renato, the Defendant) including a number of cheques which Renato had drawn from his mother’s Commonwealth Bank account in favour of himself.

    The Court held that the cheques were not actually drawn in the exercise of Renato’s power as his mother’s attorney. The Court did however find that Renato had misappropriated other funds (totalling over $62,000) from a trust account which held in his mother’s name for the benefit of her grandchildren. This misappropriation by Renato constituted a breach of trust by his mother such that the mother’s estate had to account for the loss.

    Fortunately in this case, it was held that the mother did not suffer a loss. At the date of this article it is not clear whether further action will be taken against Renato for his acts as his mother’s attorney.

    Available remedies

    The range of remedies available in circumstances of financial exploitation and misappropriation can be broadly classified into three categories:

    • statutory remedies;
    • common law remedies; and
    • criminal remedies

    A brief overview of each of these is discussed further below:

    Statutory remedies

    Victoria, Queensland, South Australia, the ACT and Tasmania have specifically legislated to impose substantial penalties or allow for compensation for the donor (or their estate) caused by the failure of an attorney to comply with their statutory duties in the exercise of their powers[3]

    The remaining States and Territory (Western Australia, Northern Territory and New South Wales) do not provide any legislative right to seek compensation or damages from an attorney where the donors assets have been misappropriated if there has been proof of financial exploitation. The only statutory remedy in Western Australia, Northern Territory and New South Wales is that an application can be made to the relevant State and Territory Court or Tribunal (or, the Court or Tribunal can make a decision on their own initiative) to revoke a Power of Attorney if they are satisfied it is in the best interests of the Donor.

    Common Law Remedies

    There are three fundamental equitable grounds upon which a Court can set aside a transaction involving financial exploitation by an attorney:

    • Breach of Fiduciary Duty – an attorney is a fiduciary and where the attorney obtains a profit as a result of a transaction that conflicts with the interests of the donor, the Court has the ability to set aside the transaction
    • Unconscionable conduct – the High Court’s decision in the case of Amadio[4] established the principles with respect to Unconscionability can be established where three elements have been satisfied:
    1. That one party has a “special advantage” (the stronger party);
    2. That the disability is sufficiently evident that the stronger party knew or ought to have known of the weaker party’s special disadvantage; and
    3. the stronger party took unfair advantage of the weaker party’s special disadvantage to obtain a benefit for him/herself.
    • Undue influence – where an attorney has procured a transaction by undue influence, again the transaction can be set aside.

    Criminal Remedies

    At the present time, there is no specific criminal offence in any Australian jurisdiction that deals with financial exploitation of an elderly person, through a Power of Attorney or otherwise. Financial abuse and exploitation can be prosecuted through a variety of property offensive including misappropriation of property, theft or fraud and in some cases, domestic violence or abuse. In the ACT, there is a separate offence for dishonestly obtaining a financial advantage by deception [5]

    In reality however, there has been a noted failure by police to investigate and subsequently prosecute for criminal offences in cases where there has been financial exploitation of an older person generally. There is also typically a strong desire by older persons to maintain family privacy and as a result, financial exploitation is often unreported.

    Written by Golnar Nekoee, Associate, Wills and Estate Planning. To create a power of attorney, or review your will and estate plan, please contact us.

    [1] Brennan v The State of Western Australia [2010] WASCA 19

    [2] Mezzapica v Mezzapica [2017] NSWSC 1553

    [3] Powers of Attorney Act 2014 (VIC) s77, Powers of Attorney Act 2006 (ACT) s 50 – time limits apply from when the application must be made to compensate the principal or the estate, Powers of Attorney Act 1998 (Qld) s106-107, Powers of Attorney and Agency Act 1984 (SA) s 7, Powers of Attorney Act 2000(TAS) s32

    [4] Commercial Bank of Australia Ltd v Amadio [1983] HCA 14

    [5]Part 3.3 Division 3.3.2 of the Criminal Code 2002 (ACT)

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