Litigation

All employers now subject to employee “right to disconnect”

Whilst it isn’t news that, under amendments to the Fair Work Act 2009 (Cth) (FW Act) and consequent amendments to Modern Awards, from 26 August 2024 employees of larger employers have the new ‘right to disconnect’ outside of work hours… what many small businesses employers don’t realise is that this law will also apply to them from 26 August 2025.

What is a “small business employer”?

A small business employer is an employer with fewer than 15 employees at a particular time.

When counting the number of employees, employees of associated entities of the employer are also included. Casual employees are not included in this headcount unless they are engaged on a regular and systematic basis (but they also have the right to disconnect).

So what is the “right to disconnect”?

Employees have the right to refuse contact outside their working hours unless that refusal is unreasonable. This right means an employee can refuse to monitor, read or respond to contact from an employer or a third party (such as customers, clients, suppliers and related businesses) outside of an employee’s working hours.

Contact is broad and can include in person contact, calls, emails, texts, WhatsApp chats or through other Apps etc.

The right to disconnect is a protected right all employees have under the FW Act. An employee can’t be punished or adversely treated for enforcing a workplace right. Employees are protected from any disciplinary action for reasonably ignoring such emails.

What is “unreasonable”?

When working out whether an employee’s refusal is “unreasonable” other matters may also be considered but the following factors must be considered:

  • the reason for the contact
  • how the contact is made and how disruptive it is to the employee
  • how much the employee is compensated or paid extra for:
    • being available to perform work during the period they’re contacted, or
    • working additional hours outside their ordinary hours of work
  • the employee’s role in the business and level of responsibility
  • the employee’s personal circumstances, including family or caring responsibilities.

It will be unreasonable for an employee to refuse to read, monitor or respond if the contact or attempted contact is required by law.

Importantly, employers are not prohibited from initiating contact with employees, but the employee is not obliged to respond unless it is deemed ‘reasonable’ for them to do so.

Senior employees on large salaries will have limited access to this right as their role or remuneration already will likely include ‘reasonable additional hours’. These laws are mainly for the benefit of Award and lower level employees and those who are expected to be available on call without additional compensation.

Disputes

Disputes about an employee’s right to disconnect should first be discussed and resolved at the workplace level (s.333N).

If that isn’t possible, employees or employers can go to the Fair Work Commission (FWC) to deal with a dispute (s.333P).

The FWC can:

  • make a stop order
  • deal with the dispute in other ways (for example, by holding a conference to try to resolve the dispute), or
  • both.

FURTHER INFORMATION

For further information in relation to business succession, estate planning, litigation and dispute resolution or any commercial law matter, contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your commercial law needs.

Stay up to date – LinkedIn | Facebook | Instagram

in Business / Commercial Law / Dispute Resolution / Employment / General / Litigation / Risk management  by 02 Aug 2025 0 comments

Who gets your Superannuation when you die?

On your death, your superannuation balance will not necessarily be dealt with in accordance with your wishes as stated in your Will. Read that again… slowly, then read on.

Unless you have a valid beneficiary death benefit nomination in place that directs your superannuation fund’s trustee as to who to pay your super balance to, your trustee may have a discretion as to who to pay it to.

The trustees of most retail super funds have a discretion as to who to pay a benefit to. Usually, the fund rules specify the member’s dependents as the class of beneficiaries to be considered first, with the trustee to determine the amounts/proportions but imagine what happens if you are perhaps separated (but not divorced) and you are living with another person (as a de facto) – a dispute could easily arise. What if you have children? What would/should the split be?

To minimise disputes and avoid applications to the Superannuation Complaints Tribunal or the Supreme Court, make a nomination. There are generally 2 types: Non-binding and Binding

NON-BINDING NOMINATIONS

A non-binding nomination is an indication to your trustee of your preferences but it is, as it states – non-binding so the trustee can ignore it. This can be a good idea if there are significant changes in circumstances before your death where you haven’t got around to updating your nomination. The trustee’s discretion could prevent it going to your ex spouse or avoid the situation of you accidentally omitting one of your kids from a benefit.

BINDING NOMINATIONS

A binding nomination is exactly that – binding (provided that it is valid as at the date of death). There are 2 sub-categories of binding nomination: lapsing and non-lapsing.

  • LAPSING – Many funds provide for the lapsing type – and unfortunately these need to be renewed every 3 years or the nominations lapse.
  • NON-LAPSING – Most Self-Managed Super Funds (SMSFs) and some retails funds allow in their deeds for nominations that never lapse (unless you update it). Older SMSF Deeds and their Rules do not allow for the non-lapsing type and may need to be updated.

There are requirements for making any nomination legally valid, witnesses etc.

Speak to us about your estate planning and ensure your wishes are properly documented.

FURTHER INFORMATION

If you would like any further information in relation to Wills, estate planning, superannuation death benefit nominations or updating SMSF deeds , please contact us on (02) 9521 2455 or email help@mckilloplegal.com.au

in Commercial Law / Estate Planning / General / Litigation / Probate / Superannuation / Tax Planning  by 01 Aug 2025 0 comments

What is an Injunction?

An injunction is a Court order directing a person or entity to do a specific thing or not to do a something.

Most injunctions are temporary and are often made pending the outcome of a full hearing (known as an “interlocutory injunction“). An example may be to restrain a former employee from doing work for former clients where they have agreed to post-employment restraints pending a hearing on whether the restraint is lawful or to prohibit the publication of a potentially defamatory article in a newspaper or television program.

A Court will not grant an interlocutory injunction unless:

  • the Plaintiff has made out a “prima facie” case – a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial – or established that there is a serious question to be heard;
  • the balance of convenience favours the granting of the injunction; and
  • the Plaintiff provides “the usual undertaking as to damages” (that they will pay any damages the restrained party suffers if at a final hearing the Court determines that the injunction wasn’t justified).

A Court has discretion as to whether to make such an order and will consider thongs like whether or not you have asked the other party to do/not do the relevant thing, whether damages would be an appropriate remedy, if you have waited too long to seek the order etc.

Where an injunction is sought from a Court without the affected party being notified, this is known as an “ex-parte injunction” as it is made in the absence of a party. They are for that reason only temporary and the Court requires the applicant to disclose all relevant facts to the case, including those that may lead to refusal of the application, not just those in favour of the injunction as there is no respondent in Court to oppose it. Examples can be “freezing orders” that stop the sale of assets or to freeze a bank account to preserve them pending the Court’s further orders.

Mandatory injunctions can be obtained where for example a party to a contract refuses to comply with their lawful obligations under it. An example of this is a party to a Contract for the Sale of Land that unlawfully refuses to sign a Transfer in registrable form. Such an injunction imposes a positive obligation on the affected party to do something, not just stopping them from doing something.

FURTHER INFORMATION

For further information in relation to business succession, estate planning, litigation and dispute resolution or any commercial law matter, contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your commercial law needs.

Stay up to date – LinkedIn | Facebook | Instagram

in Business / Commercial Law / Debt Recovery / Dispute Resolution / Employment / General / Insolvency & Bankruptcy / Intellectual Property / Litigation / Property  by 01 Jun 2025 0 comments

Why updating ASIC records is critical

Under the Corporations Act 2001 (Cth), among other methods, any document may be served on a company by:

(a) leaving it at, or posting it to, the company’s registered office; or

(b) delivering a copy of the document personally to a director.

This means that ASIC, the ATO, other government authorities or any other creditor can serve important papers on a company at its former place of business (where that address has not been updated at ASIC) even if they have since moved.

Documents that could be served on a company can include:

  • Court proceedings such as an Originating Process / Statement of Claim / Summons

As these important documents can be served on a company even though they may not actually come to the attention of the company or its directors, demonstrates why updating ASIC records is critical.

Similarly, if the ATO was to serve a Director Penalty Notice (DPN) on a director, note that:

  • DPNs are sent via ordinary mail to the Director’s last recorded residential address on ASIC’s database
  • notice is given on the day the DPN is issued, not when it is or is likely to have been received
  • actual non-receipt of a DPN is not a defence.

FURTHER INFORMATION

For further information, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au 

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.

in Business / Commercial Law / Dispute Resolution / General / Insolvency & Bankruptcy / Litigation / Risk management  by 01 May 2025 0 comments

Order for Security for Costs

An Order for security for costs is to help ensure that unsuccessful proceedings commenced by a Plaintiff do not disadvantage the Defendant. Such applications are more usually made in relation to an appeal rather than an original matter.

A security for costs order generally requires a Plaintiff to pay a certain amount of money into Court (or a solicitor’s trust account) before their proceedings can continue – that is the proceedings are in effect stayed pending the security being provided.

The Court has several sources of power to make an order for security for costs, including:

  • the Court’s inherent power to stay proceedings to ensure the proper and effective administration of justice
  • the relevant Court rules (eg, Rule 42.21 of the Uniform Civil Procedure Rules 2005);
  • s.1335 of the Corporations Act 2001 (Cth).

Due to the weight an order for security for costs may carry, Courts must weigh the rights and interests of all parties to the proceedings. The Court has a broad discretion as to whether to grant such an order and will usually look to factors including (in no specific order):

  • the inherent legal right of a Plaintiff to bring legal proceedings;
  • the strengths and bona fides of the Plaintiff’s case
  • where the Plaintiff ordinarily is resident;
  • the financial standing and asset position of the Plaintiff in the jurisdiction in which the claim has been commenced (including where the Plaintiff may have divested itself of assets);
  • whether there is reason to believe that the Plaintiff can satisfy an order for costs not only from its own resources, but from other resources including those who will benefit from the litigation; the public importance of the case;
  • delay of bringing the application for the order;
  • if the Plaintiff hasn’t disclosed an address or has moved and not updated it, particularly if there is reason to believe that it was done to to avoid the consequences of the proceedings;
  • whether such an order will frustrate the litigation;
  • the justice of the case.

It is uncommon for such an order to be made against an individual Plaintiff (as opposed to a company, partnership or trustee) but not impossible, depending in the circumstances of the particular case and Plaintiff.

FURTHER INFORMATION

For further information, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au 

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.

in Asset Protection / Business / Commercial Law / Debt Recovery / Dispute Resolution / General / Insolvency & Bankruptcy / Litigation / Risk management  by 01 Apr 2025 0 comments

New statutory tort – Serious Invasion of Privacy

Following the passage of the Privacy and Other Legislation Amendment Bill 2024 by the Commonwealth Parliament on 29 November 2024, which amended the Privacy Act 1988 (Cth) and other Acts, a new statutory tort for a serious invasion of privacy will soon enter Australian law.

This new tort will commence on 10 June 2025 and confers on an individual a cause of action for serious invasions of privacy.

Elements to be proven

The tort allows individuals to take action against those:

  • who invade their privacy, either by:
    • intruding upon their seclusion; or
    • misusing their information;
  • in circumstances where the individual had a reasonable expectation of privacy;
  • where the invasion is serious and either:
    • intentional; or
    • reckless; and
  • where the public interest in the plaintiff’s privacy outweighs any countervailing public interest.

The public interest considerations include the freedom of expression, freedom of the media, the proper administration of government, open justice, public health and safety, national security and the prevention of crime.

Remedies

The tort is actionable without proof of damage however, where the elements are established, a Court will be able to award damages to the plaintiff, as well as other remedies (such as injunctions, apologies, destruction or delivery of materials, accounting for profits etc) if appropriate.

Damages are capped at the greater of:

  • $478,550; or
  • the maximum award for general damages in defamation,

but there are no aggravated damages available.

Exemptions

There are exemptions for invasions of privacy by a State Authority or its staff if the invasion of privacy occurs in good faith, in the performance or purported performance of a function or exercise of power of the Authority, or in the exercise or purported exercise of a power of the authority and for law enforcement bodies and intelligence agencies. Persons under 18 are also exempt.

Limitation periods

The cause of action must be actioned within 1 year of the person first becoming aware of the invasion of privacy however if the plaintiff is unaware of the invasion, 3 years from the day the invasion occurred or if the plaintiff was under 18 when it occurred, before the plaintiff turns 21.

The introduction of this new tort marks a significant change in Australian law because until now, there has been no generally recognized right to privacy.

New crimes

Note that the Criminal Code was also amended to create new crimes for “doxxing” in sections 474.17C (criminalizing the release of personal data using a carriage service (ie, internet or telecommunications services) in a manner that a ‘reasonable person’ would regard as menacing or harassing) and section 474.17D (which focuses on such dissemination targeting individuals or groups based on their protected attributes, such as race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality, or ethnic origin).

These new offences maximum sentences of 6 and 7 years imprisonment respectively.

FURTHER INFORMATION

For further information, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au 

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.

in Criminal Law / General / Litigation / Risk management  by 04 Mar 2025 0 comments

Statement of Testamentary Intention

Section 100(2) of the Succession Act 2006 (NSW) provides that a written statement made by a deceased person during their lifetime which may explain or justify the provisions of a will is admissible in evidence.

This means that a Court can have regard to the Deceased’s wishes and intentions as expressed in such statements, often called a “Statement of Testamentary Intention“, in making a decision regarding the distribution of their estates such as where a Family Provision Order has been sought (an order which effectively alters the division and distribution of a deceased person’s estate, deviating from that stated in their Will to which Probate has been granted).

Where a person makes a Will that they think may ultimately be contested (such as where an estranged child is left out of the Will), then a Statement of Testamentary Intention can be executed at the same time, whereby the person making the Will sets out their reasons for excluding that person as a beneficiary.  A Statement of Testamentary Intention is often made in the form of an Affidavit or Statutory Declaration, but it can even include an audio-visual recording of the person making the Will made with their consent, statements made orally to another person or even a contemporaneous email, but a written and sworn statement is usually the best if time permits.

The risk in making a Statement of Testamentary Intention is that if for example:

  • it is not documented properly;
  • was not made contemporaneously with the Will; or
  • where a significant period had elapsed between the making of the s.100 Statement and the time of the Deceased’s passing (that is, it is not up to date – as the reasons may have been eroded by later interactions and events etc, such as where a relationship has been repaired)

then it can lack evidentiary weight and can even act to benefit the excluded person, such as:

  • if it notes matters that would ordinarily be considered ‘hearsay’ (such that it can be objected to being admitted into evidence);
  • where unsubstantiated opinions or slurs are used; or
  • where there are factual statements or reasons given that can be shown to be incorrect

as they can undermine the basis of the will-maker’s decision to exclude a person and bolster the plaintiff’s case against the estate.

Usually the reasons for excluding a beneficiary from a Will should not be stated in the Will itself, but if they are to be documented, should be set out separately in the s.100 Statement so that the Executor can decide whether or not to use it in evidence.

FURTHER INFORMATION

For further information, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au 

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.

Stay up to date – LinkedIn | Facebook | Instagram

in Dispute Resolution / Estate Planning / General / Litigation / Probate / Risk management  by 01 Nov 2024 0 comments

Caveat on Probate

If you have an interest in the estate of a deceased person, and:

  • wish to challenge the validity of a Will, for example:
    • as it is informal (in that it doesn’t comply with the usual requirements for execution); or
    • because you genuinely believe it to be a forgery;
  • have serious doubts as to the testamentary capacity of the person that made the Will at the time it was made;
  • have evidence of a later document purporting to be the deceased person’s Will; or perhaps
  • claim that a Will was executed under undue influence or pressure,

then there is a process by which you can put the Court and the person propounding that Will in an Application for Probate or Letters of Administration with the Will Annexed on notice.

That process is basically, before the Court makes a grant, to:

  • formally file with the Court; and
  • serve on the known or potential applicant

a document called a “Caveat on Probate“.

The effect of a Caveat on Probate is that the Court will not make a grant of Probate in the estate without notice to the person who lodged it.

An executor that wants to proceed with an application for a grant of Probate can apply to the Court for a Caveat to be removed if they believe that the caveator has no standing or that there is no real dispute as to the validity of the Will. In such contested proceedings for probate, they are to be commenced by Statement of Claim seeking the grant in solemn form and the other parties may file Cross Claims as appropriate.

Obviously, there can be costs consequences that flow from improperly taking this step so advice ought to be taken before doing so.

Note that the Caveat on Probate is not the appropriate step to take if you do not challenge the validity of the Will but want to seek a family provision order.

FURTHER INFORMATION

For further information, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au 

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.

Stay up to date – LinkedIn | Facebook | Instagram

in Dispute Resolution / Estate Planning / Litigation / Probate  by 01 Sep 2024 0 comments

Serving documents on companies

Section 109X of the Corporations Act 2001 (Cth) provides that a document may be served on a company by means including:

(a)  leaving it at, or posting it to, the company’s registered office; or

(b)  delivering a copy of the document personally to a director of the company.

Documents that may need to be served may be a Summons, Statement of Claim or even a Creditor’s Statutory Demand.

Companies are obliged to register a change of registered address within 28 days of at changing. Directors are also required to ensure their address details on the register are maintained.

Where service of a document not properly effected or there is a dispute about its, there is a risk that the Court may determine that service wasn’t effected, set it aside altogether and there could be consequences such as costs orders.

Service by post

Service by post is cheap and easy.

If posted to a company’s registered address, a document is presumed under s.160 of the Evidence Act 1995 (Cth) to have been received at that address on the 7th working day after being posted.

A problem with service by post however, is that the recipient could argue that it was never received or a dispute could arise as to timing of service.

Personal service

Arguably, personal service by a process server of a document on a director of a corporation is the best way to effect service.

These professionals are in the business of doing this and provide an Affidavit of service which can be used in evidence to prove service to a Court and as they are a third party service provider, there is often no dispute raised as to service and when so there is no “he said”/”she said” type argument as there may be if the parties themselves effected service.

Leaving it

An alternative to posting it or serving it on an officer of a company is leaving it at the company’s registered office.

Again, this is best done by a licensed process server who can swear or affirm what they did and when.

Informal service

The Courts are increasingly allowing alternative methods of service where parties are evading service or any of the above methods do not result in effective service such as through third parties, email, text messages, social media accounts etc.

FURTHER INFORMATION

For further information in relation to Corporations Act issue, legal proceedings, serving documents on companies or any business or commercial law matter, contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.

Stay up to date – LinkedIn | Facebook | Instagram

in Business / Commercial Law / Debt Recovery / Dispute Resolution / Litigation  by 03 Jun 2024 0 comments

What is copyright?

There are various types of intellectual property (the general name given to the laws covering trade marks, patents, designs, circuit layouts, plant breeder’s rights and copyright), but the simplest (at least in terms of how and when it is created at least) is copyright.

What is copyright?

Copyright exists in a ‘work’ as soon as that work is created.

People spend time, money and talent in creating ‘original’ works and their efforts are protected by copyright.

Works include:

  • literary works – texts, books, poems, screenplays, song lyrics, letters, computer programs etc
  • artistic works – drawings, paintings, maps, plans, sculptures, photographs etc
  • dramatic works – plays, screenplays and choreography etc
  • musical works – musical scores (but not the recording of the music itself)

Protection is also given to ‘subject matter other than works‘, being sound recordings/broadcasts, films/movies, published editions of works etc.

Unlike a patent for example, copyright does not protect ideas or information as such but only the original expression of ideas or information. If it is not original, there is no copyright.

Two people could independently come up with a similar work at the same time. Both would hold copyright on their own works.

Copyright is free and automatic in Australia – there is no need (and indeed no place in which) to register it.

What rights does copyright give?

The Copyright Act 1968 (Cth) and the Regulations made under that Act set out the law in Australia regarding copyright.

Copyright protects the original expression of ideas or information – the work itself. The owner of the copyright owns copyright in the text in a book even though the owner of (an authorised) physical copy of a book owns the physical book itself.

Copyright entitles the holder the exclusive right to publish, reproduce (copy) and otherwise use that work (and to make money from doing so). Using a substantial part of a work without the copyright holder’s permission is an infringement upon that right and the holder can commence a legal action for an injunction to restrain such use, damages or accounting for any profits made from such use etc.

There are exceptions to copyright including ‘personal use’ and use (known as fair dealing) including:

  • research or study
  • reporting of news
  • giving of professional advice
  • satire/parody

as well as certain ‘special purposes‘ such as making accessible format copies for persons with disabilities, for educational instruction etc

Overseas copyright is enforced in Australia and reciprocal arrangements exist overseas to protect Australian copyright abroad due to various international conventions. There are treaties in place in some countries only however.

How long does copyright last?

Copyright generally lasts for as long as the person that owns it is alive, plus 70 years (but some shorter timeframes apply to certain works).

Once copyright ends, the work is said to be in the ‘public domain’ – and can be used by anyone.

How to help enforce copyright in a work

If your work is written or able to be viewed such as online or on a screen, you can use the copyright symbol © or (c) on the work, with the author’s name and the date it was created. This symbol serves as notice to the world that you assert copyright in that work and from when.

Using the © symbol is not a requirement to establish or assert copyright however, just a good practice.

Songwriters can register their works through licensing agencies, so fees can be collected and paid for using their songs.

Contractual arrangements regarding copyright and its use can also impose rights and obligations on the parties to it. Copyright can be assigned, licensed or even borrowed against.

Titles, business names and slogans are not protected by copyright (as they are usually too small/unoriginal to be protected by copyright), but they can in some cased be protected by trade mark.

What are moral rights?

Moral rights are the right of integrity of authorship, the right of attribution of authorship and the right against false attribution of authorship. They are non-economic rights that are personal to the creator of a work, so if a work is commissioned by a business, the business would require the person creating the work (and getting paid for it, whether as an employee or a contractor) to assign their moral rights or permanently consent to alterations to it that may otherwise infringe them.

FURTHER INFORMATION

For further information, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au 

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.

Stay up to date – LinkedIn | Facebook | Twitter | Instagram

 

in Asset Protection / Business / Commercial Law / Dispute Resolution / Intellectual Property / Litigation  by 01 Feb 2024 0 comments