Welcome

Bradley Allen Love Lawyers is comprised of devoted teams covering a wide range of legal services. We have a strong focus on commercial and business law, property, local government, employment, dispute resolution, estate planning and litigation.

News & Events

  • BAL-WhistleBlower

    Is 2017 the year of the whistleblower?

    Proposed changes to the Public Interest Disclosure Act and talk of a private sector equivalent indicate that 2017 could bring positive change for whistleblowers. Employment law expert John Wilson explains.

    “Sunlight,” eminent American judge Louis Brandeis once mused, “is said to be the best of disinfectants.” Yet while transparency is now a popular political buzzword, Australia remains an unfriendly place for those who dare to let the light shine on corruption and maladministration. The words of former NSW police commissioner Tony Lauer – that “nobody in Australia much likes whistleblowers” – continue to ring true.

    While the enactment of the federal Public Interest Disclosure Act in 2013 introduced long overdue protections for public sector whistleblowers, complementing a patchwork of similar legislation at state-level, this reform has been largely ineffectual. The absence of a comprehensive whistleblower scheme in the private sector only exacerbates a prevailing atmosphere of hostility towards those who report governmental or corporate wrongdoing.

    Unlike some jurisdictions where whistleblowers are adequately protected from retaliation, able to seek financial rewards and even empowered to initiate lawsuits when regulators fail to act, whistleblowers in Australia face severe personal and professional consequences. A Fairfax headline last year said it all: “Americans pay millions to whistleblower at BHP; we hound them out of their jobs”.

    A ray of sunlight?

    Political developments last November provide hope that change could be imminent. The Derryn Hinch and Nick Xenophon cross-bench deal to pass the government’s union regulation legislation came in return for strong protections for union whistleblowers, and the promise that similar laws will be introduced in other sectors. A parliamentary inquiry will report by June, with the objective of implementing “an equal or better whistleblower protection and compensation regime in the corporate and public sectors” by mid-2018. It has even been suggested that an American-style system of bounties or financial rewards for information could be established.

    Long-time observers of whistleblower protection laws in this country will not hold their breath. The federal Public Interest Disclosure Act, which although flawed represents a consideration step forward, took two decades, six parliamentary committees and three unsuccessful bills before finally being passed in 2013. Nevertheless, the prospect of improved whistleblower protections for public servants and the introduction of a private sector equivalent is enticing.

    First published in the Mandarin. Read the full article here.

    Written by John Wilson, Director, Employment & Workplace Relations, and Kieran Pender, Law Clerk.

    Read more
  • Workplace Policies

    Workplace Policies - Why You Need Them

    A cautionary tale on the importance of keeping your workplace policies up to date:


    If you have a business, we can help you keep your policies up-to-date – because even if your employees don’t read them, you never know when you still might need them. Contact us to discuss your workplace policies.

    Read more
  • PPSR & PPSR - Personal Properties Securities Act

    PPSR & PPSA

    The Personal Property Securities Act (PPSA for short) and the Personal Property Securities Register (PPSR) came into effect over four years ago, yet some businesses have never heard of these terms. Regardless of the size or type of your business, the PPSA is likely to affect you.

    So what is a “security interest”? A security interest acts like a charge or mortgage over personal property that secures a payment. It allows a supplier to retake possession of the goods it supplied if the customer fails to pay their debts. By registering their interest on the PPSR, the supplier is making sure that their rights are enforceable. To help explain how securities interests and the PPSR may affect you, here is a tale based on a true story but for educational purposes only[1] of course.

    Seem complicated? It can be; which is why you need to understand your rights to protect your goods.

    This case was determined largely in favour of the customer; but it shows the range of outcomes that can occur when you do (and do not) register your security interests. If you supply goods on credit then make sure your contracts specify what the buyer can do with those goods, whether you can register a security interest and if you do have that right, make sure to register it. Otherwise you too might miss out on reclaiming your goods.

    [1] Warehouse Sales Pty Ltd (in Liq) & Lewis and Templeton v LG Electronics Australia Pty Ltd & Ors [2014] VSC 644

    Read more
  • dispute trust money

    Beware of Disputed Trust Money

    Have you been in the situation where a Contract for Sale has been terminated and both the Buyer and the Seller are claiming an entitlement to monies held in Trust? What do you do?

    As you are aware, under the Agents Act 2003 (ACT) (“the Act”), a Licensed Agent commits an offence if they deal with Trust money otherwise than as directed by the person for whom the money is held. The maximum penalty being $15,000 for individuals and $75,000 for a corporation. Records must be kept stating the material details of every transaction the Agent conducts.

    Failure to comply with the record keeping requirements may result in a maximum penalty of $7,500 for individuals and $37,500 for a corporation. In addition to monetary fines, the Agent, who will also be in breach of the rules of conduct, may have their licence cancelled or suspended.

    So, what do you do if you have both the Buyer and Seller providing writing instructions to disburse the monies to them?

    Agents are at risk of breaching their Trust account requirements if they disburse money contrary to the directions of the parties. If the parties cannot agree on the distribution of the funds, to ensure compliance with the Act, an Agent must hold the funds until agreement is made or court proceedings are commenced. If court proceedings are commenced, the money may be paid into the court, to be held until a decision is made. If court proceedings are not commenced by the parties, one option the Agent may consider is to make its own originating application to the court as a third party under rule 35(1)(a) of the Court Procedure Rules 2006 (ACT). The originating application would be a request to pay the disputed Trust monies to the court where they would be held until the dispute is resolved between the Seller and the Buyer.

    So what should you do?

    If you consider that there may be a dispute in relation to the money you hold in Trust, keep the lines of communication open. If the Contract is subsequently terminated and the parties cannot agree on how it is to be disbursed, a letter to both advising that you may seek the assistance of the courts may be enough to push the parties to come to an agreement. Until you receive written confirmation from both parties that convey the same instructions, do not disburse the Trust monies. Seek legal advice if you consider the dispute is likely to require court assistance or if you are not certain what to do.

    If you have any questions about contracts for sale or entitlement to monies held in trust, please get in contact with our Real Estate team.

    First published in REIACT newsletter. Full article available for download here.

    Read more
  • A GUIDE TO THE DELEGATION OF COUNCIL FUNCTIONS

    A guide to the Delegation of Council Functions

    A quick guide to The Cans, the Can’ts, the Whats, and the Hows of Delegation AND Sub-delegating Council Functions under Legislation and the Common Law

    THE AUTHORITY TO DELEGATE

    Chapter 12, Part 3 of the Local Government Act 1993 (NSW) (‘LGA’) governs the power of Councils to delegate their functions.

    Principally, section 377 of the LGA affords Councils the power to delegate certain functions to general managers or to other persons or bodies (other than directly to other Council staff).

    The statutory regime is designed to facilitate delegations of authority, in recognition of the important functions delegates play in maintaining the effective and efficient governance of Councils. However, the scope of the power to delegate is not without restrictions and Councils need to be aware of the legislative and common law principles governing delegations.

    TO WHOM CAN A COUNCIL DELEGATE?

    Section 377 of the LGA provides that Council functions can be delegated to general managers and to other persons or bodies. However, the Council cannot delegate directly to an employee of the council other than the general manager.

    Section 49 of the Interpretation Act 1987 (NSW) provides some further guidance:

    • Where a Council seeks to delegate a function to someone other than the General Manager, the delegation must be made to either a specified person or body (by name), or to a particular officer or the holder of a particular office (by reference to the title of the office concerned): section 49(1).
    • If a function has been delegated to the holder of a particular office or position, the delegation does not cease to have effect merely because the specific person holding the office or position ceases to occupy that particular office or position. Where this arises, the person occupying the office in the meantime is taken to be the delegate: section 49(8).

    A function can only be delegated to an office or position that is in existence at the time that the delegation is made: Australian Chemical Refiners Pty Ltd v Bradwell (1986) 10 ALN at N96.

    HOW TO DELEGATE

    Section 377 of the LGA requires delegations to the general manager to be made by Council resolution.

    Section 49(2)(b) of the Interpretation Act requires delegations be in writing or evidenced in writing.

    Delegations can be general or limited: section 49(2)(a) of the Interpretation Act.  Where a function may be exercised in relation to a number of different matters or classes of matters, the delegation may be restricted to only certain matters or classes of matters.

    The delegation may be made subject to conditions: section 49(3) of the Interpretation Act. Any conditions restricting the exercise of the delegation must be satisfied for the exercise of the delegation to be valid: Aldous v Greater Taree City Council [2009] NSWLEC 17.

    THE SCOPE OF DELEGATED POWER

    A delegation can cover a wide range of functions.  Additionally, section 378 of the LGA gives a general manager the power to delegate any of his functions, including functions that have been delegated to him by the Council.

    The delegation of a function includes the power to exercise any other function that is incidental to the delegated function: Interpretation Act, section 49(4).

    Where the exercise of a statutory function requires the formation of an opinion, belief, or state of mind, when the function is delegated it is the opinion, belief or state of mind of the delegate and not the primary decision maker that controls the exercise of the function: Interpretation Act, section 49(7).

    Even where a function has been delegated, the primary decision maker (the Council or general manager) may still exercise the function at any time prior to its exercise by the delegate: Interpretation Act, section 49(9).

    Some functions must be exercised by the Council itself and cannot be delegated.  The Council’s non-delegable functions are set out in section 377(1)(a)-(u) of the LGA and include (but are not limited to):

    • the appointment of a general manager;
    • the making of a rate or a determination as to the levying of a rate;
    • the making of a charge;
    • the fixing of a fee;
    • the borrowing of money;
    • voting of money for expenditure on council works, services or operations;
    • the compulsory acquisition, purchase, sale, exchange or surrender of any land or other property (but not including the sale of items of plant or equipment);

    A Council is precluded from delegating a function that is specifically required by any legislation to be exercised by resolution of the Council: section 377(1)(u) of the LGA.

    A Council and a general manager are precluded from delegating their power of delegation: sections 377(1)(t) and 387(1) of the LGA.

    Where the exercise of discretion is involved in the exercise of a Council function, the function cannot be delegated in a way that requires the discretion to be exercised in a specific way.  For example, section 80 of the Environmental Planning and Assessment Act 1979 (NSW) confers power on the council to determine whether to grant consent to a development application. The function conferred involves the exercise of discretion as to whether or not to approve the application unconditionally, to approve it subject to conditions, or to refuse it. The Council cannot delegate the power to approve a development application without also delegating the power to approve it subject to conditions or to refuse it: Belmorgan Property Development Pty Ltd v GPT Re Ltd & Anor [2007] NSWCA 171.

    A Council is also obliged to review all of its delegations within the first 12 months of each term of office: section 380 of the LGA.

    NB: this is a ‘guide’ only. The legal principles discussed about are intended to provide a general overview of the legal principles applicable to the delegation of Council functions. It is not exhaustive and does not constitute legal advice. Should any questions or issues arise regarding delegation please feel free to contact BAL Lawyers on (02) 6274 0999 or seek alternative legal advice.

     

    Read more
  • investigate bradley allen love

    To investigate or not to investigate? Allegations in the workplace

    Hamlet was fortunate not to be an employment lawyer or human resources professional. Following a recent Queensland case, the question of whether or not to investigate employee misconduct is more vexed than ever.

    Public and private sector employers now find themselves walking a tightrope where a misstep in either direction can lead to litigation and liability.

    In late September, the Queensland Industrial Relations Commission delivered judgment in East Coast Pipeline Pty Ltd v Workers’ Compensation Regulator. The case involved a workplace investigation into complaints of sexual harassment and bullying. The accused employee allegedly told a colleague that “flavoured condoms were on sale, and that maybe that would give her something to do in the lunch break”, suggested that his colleague was a lesbian because she received flowers from a female friend, made lewd comments about her skirt, and demeaned and swore at other colleagues.

    Upon hearing these allegations, the employer initiated a formal investigation into the employee’s behaviour. The employer requested the complainants make their complaints formal, conducted interviews, kept meticulous records, required all participants to sign and endorse interview minutes, suspended the accused employee and sent home the complainants.

    To most, the approach adopted by the employer in this case is uncontroversial. Bullying and sexual harassment are serious matters. Employers can be vicariously liable for the sexual harassment of an employee, and the potential for substantial awards of compensation has increased dramatically following the landmark 2014 case of Oracle v Richardson. Being complacent to sexual harassment in the workplace is now a potentially expensive exercise, and for some the decisive action of East Coast Pipelines may resemble best practice.

    However, in the present case, the employee under investigation subsequently lodged a workers’ compensation application, claiming that the unreasonable actions of his employer were major contributing factors to a psychological injury he suffered. Despite his employer mounting a vigorous defence, the claim was accepted by WorkCover and then upheld by the Industrial Relations Commission. Both found that East Coast Pipelines had contributed to the employee’s mental health injury by proceeding straight to a formal investigation, and that the employer’s approach did not constitute reasonable management action. Read More.

    First published in The Mandarin.

    Read more

Subscribe to our newsletter

Fields marked with an * are required

Contact us

Fields marked with an * are required