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1 Macrossan & Amiet Solicitors update feb 13 > issue 51 in this issue page 1 Welcome to 2013 page 2 page 3 page 4 page 5 page 6 page 7 page 8 Material Changes to Off-the-plan Contracts New Laws for a New Year The Honourable Justice Patrick A Keane The Honourable Justice Patrick A Keane continued from page 4 Material Changes to Off-the-plan Contracts continued from page 2 Workplace Bullying A Valid Reason for Dismissal Class Actions Our February chuckle Profile - Monique Alyce Sheppard Would you like to receive your letter by ? Simply send an with Subscribe in the subject line to Liability limited by a scheme approved under professional standards legislation Welcome to 2013 By Andrew Telford On behalf of the Directors and Staff of Macrossan & Amiet welcome to the first edition of our monthly letter for For the Mackay/Central Highlands/Whitsunday regions we are facing possible uncertain times. Local industry such as tourism are continuing to struggle and there has been an obvious slow down in the mining sector. Although, for a change, the 2013 sugar cane crop is looking the best it has for a number of years this has been aided by measured but timely rain. We can all but hope that our region continues to avoid the extremes of weather that have surprised us all in the last week or two. In my local area of the Whitsundays the last 12 months has been kind to local real estate and also the home building sector. The major contributing factor being miners and their families coming to the area. Much the same can be said for the Mackay region. This stimulus has waned in recent months. However, I think we need to remain optimistic and, for example, one client of this firm is reacting in a very proactive way and this may well lead to a significant boost to the economy of the Whitsunday region. I should be able to Andrew Telford disclose specific details of this over the coming months. Macrossan & Amiet welcomes a number of new professional staff, some of whom are profiled in this edition of our letter. Our firm remains committed to maintaining and improving the level of our legal services. We can only do this by continuing to recruit capable and enthusiastic young professional staff. We would like to wish all of our valued clients the best for the upcoming 12 months. Please remember that we value your feedback, even if it is negative. As stated, we strive to improve the service that we provide and one of the best ways we can do this is for our clients to tell us where we can improve.

2 2 Macrossan & Amiet Leading the Way Material Changes to Off-the-plan Contracts By Aimee Gladman Queensland Law Community title scheme developments are governed by the Body Corporate and Community Management Act 1997 (Qld) ( BCCMA ). The Act purports to provide an appropriate level of consumer protection for intending buyers of lots included in community title schemes. More specifically, the Act governs the provision of information by sellers, and termination options for buyers where information is, or becomes, inaccurate. Section 214 of the BCCMA states that if prior to settlement, the seller becomes aware of inaccuracies in the disclosure statement at the day the contract was signed, or if the disclosure statement would now be inaccurate, they must provide a further disclosure statement within 14 days which rectifies the inaccuracies. Buyers may only terminate a contract under s 214 where three elements are satisfied: The original disclosure statement, or further statements, are or become inaccurate The buyer must be materially prejudiced by the inaccuracy The buyer has 14 days to terminate The following case examples illustrate how these principles have been put into practice in the courts. Bella Besser v Alma Homes Pty Ltd [2012] VSC 460 Ms Besser contracted to purchase an off-the-plan property in a 4 lot subdivision. The Owners Corporation Schedule referred to and attached the disclosure statement set out the lot entitlements as 400, with each lot to have a 25% share. Upon registration of the plan of subdivision, the lot entitlements had changed, with Ms Besser s lot now only having a 0.5% share of the now 202 total. While the Aimee Gladman entitlements were amended to reflect the usage of the common areas for the lots, the amendment was a material change, and Ms Besser rescinded the contract. In looking at what is a material change, the Judge stated it s not to be judged by reference to the reason the amendment is made but by objective facts and circumstances. Queensland Cases Mirvac Queensland Pty Ltd v Wilson [2010] QCA 322 This case involved an appeal by Mirvac Queensland Pty Ltd in response to a finding by the Supreme Court that Catherine Wilson s termination of her off-theplan contract was lawful. Ms Wilson had contracted to purchase a unit in a high rise luxury development, in which the disclosure statement stated that the Body Corporate that would provide assets such as a gym, pool, BBQ etc, as well as CCTV, cameras and security monitoring equipment. Mirvac provided a further statement pursuant to s 214 of the BCCMA, following inaccuracies in the original disclosure statement. However, this statement didn t include CCTV, cameras or security monitoring equipment. Ms Wilson therefore cancelled the contract within the 14 day limitation period. Mirvac followed the termination notice with a letter stating that Continued on page 5

3 3 Macrossan & Amiet Leading the Way New Laws for a New Year By Kirstie Pegoraro As a new employee at Macrossan & Amiet I have been asked to write about recent legislative changes that coincide with the commencement of my employment in Changes to Boat Licensing Those who are interested in boating or have children who might wish to obtain a boat licence will find the following changes to licensing of interest. As of January 2013, if you are a boat licence applicant seeking a licence to operate recreational boats you will need to meet the following criteria: Must be at least 18 years of age. You must have held a limited recreational marine driver licence for at least one year. The completion, under the supervision of an open recreational marine licence holder, of a range of boating tasks required in an advanced BoatSafe workbook. The completion of an advanced BoatSafe training course focussing on specific knowledge required to operate larger recreational boats. Holders of a recreational marine driver licence issued prior to 1 January 2013 and those with a master s certificate for a commercial or fishing ship will continue to be able to operate recreational vessels without further requirements. For more information go to the Maritime Safety Queensland website Changes to Liquor and Gaming Laws If you are involved in the gaming industry, the Gaming Machine Act 1991 has been amended as part of the State Government s red tape reduction initiative. As of 11 September 2012, the following changes will be implemented: 1. Gaming employees will no longer need to hold a gaming licence. Prior to the amendments it was a requirement that all gaming employees hold a licence and renew it every five years at a cost of $215. Now, gaming staff can carry out their duties such as opening machines providing they hold a current Responsible Service of Gambling certificate. 2. The amendments to the Gaming Machine Act 1991 allow minors to work on the gaming floor, provided that they hold a current Responsible Service of Gambling certificate. 3. Liquor and gaming licence applications will no longer need to be advertised in the Government Gazette and local papers. This will save up to $1,500. The biggest change in this area is that from 1 January 2013, the Liquor and Gaming Commission will be replaced by a single Commissioner, Mr David Ford. This means that the following responsibilities privy to the Commission regarding liquor and gaming will now vest in a single Commissioner: Granting, cancelling and suspending licences. Determining operational conditions such as the permitted hours of gaming at sites. Administrative approvals such as approving applications to increase the number of gaming machines that can be operated by licensees. Granting, suspending, cancelling and imposing conditions regarding liquor licences. Kirstie Pegoraro Considering applications for the extension of trading hours and varying the conditions of certain licences. This is a move to streamline approvals, speed up the licensing process and eliminate unnecessary costs and duplications. Heavy Vehicle Regulatory Reform Those involved in the trucking industry should be aware that from 21 January 2013 the National Heavy Vehicle Regulator (NHVR) will be introduced to administer a national body of law to govern the regulation of all vehicles over 4.5 tonnes. It is essentially a onestop-shop providing a consistent regulatory framework on matters such as registration, mass loading, fatigue management and compliance and enforcement. Previously, interstate heavy vehicle operators had to understand and comply with different sets of laws and rules for each State and Territory, creating confusion and impacting upon productivity and efficiency. However with the introduction of a single regulation entity to administer the national heavy vehicle laws, it creates an element of consistency. The establishment of the NHVR will reduce the regulatory burden on the trucking industry making it easier for businesses and workers to cross state borders. The introduction of the NHVR will hopefully facilitate better safety outcomes, creating consistent fatigue management rules, a better understanding of the rules leading to greater compliance and more consistent on-road enforcement. Proudly supporting the local community.

4 4 Macrossan & Amiet Leading the Way The Honourable Justice Patrick A Keane by Gene Paterson Vince Campbell and I will be off to the High Court in Canberra on Tuesday 5 March On Tuesday 5 March 2013 Patrick Keane who is currently the Chief Justice of the Federal Court of Australia will be sworn in as the 50th ever High Court Judge of Australia. Vince and my association with Patrick Keane derive from different circumstances. Vince lived near to Pat Keane, a few houses away in the Brisbane suburb of Wilston, as a young man. I attended Queensland University classes with Patrick Keane when we were both studying our law degrees. Pat Keane and I were admitted as solicitors on the same day on 3 February After working for a short period as a solicitor he became a Barrister. He was appointed as a QC in 1998 and appeared regularly in the Court of Appeal. As a solicitor I had two memorable cases with Patrick Keane that went to the Queensland Court of Appeal Paul Minchianski v Swanray 110 and Dennis Cash v Mackay Turf Club. Both appeal cases were heard on the same day. Both appeal cases arose out of the District Court Sittings in Mackay where the cases were heard before Judge Peter White. The first case involved a claim for damages for Paul Minchianski who had been injured in the course of his employment. Following his work related accident Paul unfortunately was involved in a motor vehicle accident in which he suffered other injuries. The motor vehicle accident claim was settled prior to the hearing of the work accident trial. During the course of the trial the defence counsel wanted details of the amount of damages that Paul Minchianski had received as a result of the motor vehicle claim. An objection was made that the amount was not relevant to the proceedings. The outcome of the trial was that damages were assessed at $230, but Judgment was given for the employer on the basis that there was nothing that the trial Judge did not believe that there was anything the employer could have done to prevent the injury. In the second case involving Dennis Cash he was thrown from fractious young horse as he was riding from the stables at the racetrack early in the morning. As a result of being thrown from the young horse he broke his arm at the elbow. There had been a history of the jockey riding the horse track work and recommending to the trainer that the horse needed further education in a stock saddle before being ridden by a jockey in a pad. The trial Judge assessed Dennis Cash s compensation in the order of $70, and again gave Judgment for the Defendant. The trial Judge was of the view that the trainer who had followed the earlier advice and had the horse ridden in a stock saddle for two weeks could not have done anything else to prevent the horse from bucking and there were known risks associated with riding racehorses. Patrick Keane Pat Keane appeared on the hearing of both appeals. In Paul Minchianski s case the Judgment in the District Court was set aside and he was awarded Judgment on the basis that the risk of injury could have been avoided if the employer had given instructions. The ratio of the case was the greater the risk and easier the precautions the greater is the burden to warn and instruct workers to take positive steps to eliminate unnecessary risks even if those risks are obvious. There was a cross appeal from the Defendant with respect to the issue of the trial Judge not ordering Paul Minchianski to disclose what he had received as a result of the motor accident claim. The cross appeal was dismissed on the basis that a Plaintiff seeking damages for personal injuries which caused loss of earning capacity must establish his or her earning capacity immediately prior to those injuries. It is by comparison between his or her earning capacity immediately before and subsequent to the injuries that the loss of capacity from the injuries is ordinarily ascertained. Continued on page 5

5 5 Macrossan & Amiet Leading the Way In Dennis Cash s case the Judgment in the District Court was set aside and he was awarded Judgment on the basis that the trainer prior to asking Dennis Cash to ride the young horse track work on the morning in question had said that the horse would not buck. The representation that the horse would not buck was found to be a warranty that was breached when the horse did buck. Following the appeals, I was advised by Patrick Keane that an objection had been made to his ever appearing in cases involving employers that were insured with WorkCover Queensland. Whilst Vince did brief Pat Keane on legal matters on a couple of occasions, his stories of Patrick Keane mainly relate to their boyhood days. Vince says that he would sometimes convince Pat to come to the park to play cricket and sometimes Pat would say that he was too busy with his studies. The end result is that Pat has ended up a High Court Judge and Vince s cricket career could not be said to have reached anywhere near those dizzy heights. Gene Paterson It goes without saying that Patrick Keane, being a Queensland boy, will show them what Queenslanders can do, when he gets to Canberra. Material Changes to Off-the-plan Contracts Continued from page 2 there was an oversight, and that all assets included in the original disclosure statement would be included. However it was found that the consequence of the inaccuracy was Ms Wilson s ability to terminate the contract. Latitude Developments Pty Ltd v Haswell [2010] QSC 346 This is a case which involved a property in Airlie Beach. Our Cannonvale director, Andrew Telford, had acted in the purchase and initial termination of the contract and our Mackay office director Stuart Naylor acted in the court proceedings which were ultimately successful. This case involved a contract to purchase an off-the-plan unit. Prior to settlement, changes were made to the project, so that it was broken down into various development stages. The effect of this on Mr Haswell s rights in relation to the common property meant he was purchasing a unit with no additional facilities such as the pool area, until the second stage was completed. Following notice by the purchaser to the seller to terminate, the court found that Mr Haswell could have been materially prejudiced, if he was required to complete the contract. It is interesting to note in this case, that when providing notice of termination, there is no express requirement to refer to section 214 of the BCCMA, nor to provide a basis for ending the contract. All that is required is a written notice, within the 14 days, stating that the contract is to be cancelled. Mirvac Queensland Pty Ltd v Beioley and Anor [2010] QSC 113 In this case, an amendment was made regarding the area of the proposed lot. The purchasers were entitled to terminate the contract if they became materially prejudiced by the changes. This option wasn t taken by the purchasers. In addition, the purchasers unsuccessfully raised the issue that the lot area wasn t substantially as shown or described in the Disclosure Statement. It was a term of the contract that changes of 5% were allowed, and the lot is to be considered as a whole, not spilt into balcony areas and inside areas etc there had been a change of 10-15% of the balcony areas, but less than 5% overall here. Gough & Anor v South Sky Investments Py Ltd [2011] QSC 361 This case illustrated the need for terminations pursuant to s 214 of the BCCMA to be pursuant to an inaccuracy disclosed in the Disclosure Statement. Where purchasers expectations aren t based on the core documents (contract and Disclosure Statement), it becomes difficult to prove there are contractual promises, and therefore contractual protection. Proudly supporting the local community.

6 6 Macrossan & Amiet Leading the Way Workplace Bullying A Valid Reason for Dismissal By Kerry Kennell This article considers the decision of Fair Work Australia ( FWA ) in Graham v Bankstown District Sports Club Ltd [2012] FWA 7977 to dismiss Mr Graham s application for unfair dismissal remedy. Mr Sammour complained to his Employer, Bankstown District Sports Club ( the Club ) that Mr Graham made unwelcome and unwanted remarks about Mr Sammour (while in his presence), saying that he was a virgin and that he was gay. Mr Sammour also gave evidence that Mr Graham singled him out in work tasks and used an aggressive tone when speaking to him. The Club investigated the complaint and in March 2012, Mr Graham was dismissed from his part-time role as a Sommelier (the head wine steward) by the Club on the grounds of sexual harassment and bullying of a coworker in contravention of the Club s Code of Conduct and antibullying policies. The matter was heard by FWA in September 2012 where those allegations were considered in light of the Fair Work Act 2009 (Cth) ( the Act ). During the hearing Mr Graham claimed that Deputy President Booth ( the DP ) was to consider whether his conduct was serious misconduct. The DP disagreed and said that he was to determine whether there was a valid reason for dismissal, and whether the dismissal was harsh pursuant to section 387 of the Act. The DP considered: Whether there was a valid reason for the dismissal which related to Mr Graham s capacity or conduct (including its effect on the safety and welfare of other employees); Whether Mr Graham was notified of that reason; Whether Mr Graham was given an opportunity to respond to any reason related to his capacity or conduct; and If there was any unreasonable refusal by the Club to allow Mr Graham to have a support person present to assist at any discussions relating to dismissal. During the hearing, Mr Graham denied some of the facts of his conduct, and where he did not contest the facts, he denied that the conduct was a contravention of the Club s Code of Conduct. Mr Graham gave evidence that he thought he and Mr Sammour were engaging in light hearted banter, and the DP accepted this. However, the DP said that it was necessary to review the evidence to establish on balance which account is likely to be more correct. On consideration of the above criteria for harshness and the evidence of both parties, the DP could not make a finding of unfair dismissal. The DP found that the Club had a valid reason for the dismissal and Mr Graham s application was dismissed on grounds that: Mr Graham was aware of the Club s Code of Conduct and policies and procedures, in that he had undertaken training in relation to the same; Kerry Kennell Mr Graham had signed an employment agreement which said that he would comply with the Code of Conduct and policies; The Club had undertaken investigations about the allegations which were also known to Mr Graham, and he was given an opportunity to respond to the allegations; Mr Graham was not denied an opportunity to have a support person present; Mr Graham s remarks to Mr Sammour were personal and offensive and the conduct was sexual harassment as defined by the Australian Human Rights Commission; Mr Graham would be likely to reoffend, on the basis that he displayed no contrition, nor did he give any indication that the training had sunk in ; and Where Mr Graham admitted the facts, he passed his conduct off as a joke. This case reinforces the Court s view on bullying and reminds Employers of the importance in implementing a code of conduct, and workplace bullying policies and training your staff in these areas, so you may rely on these if you need to deal with bully or inappropriate behaviour. Whether you are an Employer or Employee please contact us if you would like to know more about the law in this area and how it applies to you.

7 7 Macrossan & Amiet Leading the Way Class Actions By Aimee Gladman Definition Class Action: Legal proceedings allowing the claims of many individuals against the same defendant, arising out of the same or similar circumstances, to be conducted by a single representative Butterworths Concise Australian Legal Dictionary, 3rd ed. Positives of Class Actions Class actions bring together a group of people who may otherwise not be able to afford to litigate a small claim. By joining many people together, bargaining powers are increased which in turn, equalises the power large corporations have over individuals who may not have significant resources. This increased power, means the larger corporations may be more likely to take the claim seriously, and be more inclined to settle early, rather than take the matter through the courts. Negatives Class actions are complex and expensive to litigate, and they therefore take up a lot of time for law firms and the courts, which means expensive fees. At the end of the day, the individuals in the class action may then only receive a minimal payment, after court costs and legal fees have been deducted As there are large numbers of plaintiffs within the action, the degree of control one person has over the legal process can be minimal. It should also be noted that individuals generally waive their right to sue as an individual by joining a class action and being named. Closer to home While most people would be familiar with large class actions against corporations, such as that depicted in the movie Erin Brockovich, where a large payout was awarded to victims of toxic pollution and their families by California s Pacific Gas & Electric in 1993, a relatively new class action has arisen in Queensland. Following the 2010/2011 South East Queensland floods, a Class Action is set to be filed against Seqwater and the State of Queensland, the owner and operator, of the Wivenhoe and Somerset Dams. According to Maurice Blackburn, The class action will seek damages for individuals and businesses that suffered economic loss or damage due to the negligent operation of the dams in the lead up to and during the flood. Maurice Blackburn has stated that the class action will be seeking the following types of damages: Damage caused to business, home, furniture or possessions; Financial loss caused as a result of business interruption during and after the flood; Decreased property value as a result of the flood; Costs associated with temporary relocation during flood repairs; Aimee Gladman Costs associated with rebuilding, cleaning or repairing flood damage; and Costs associated with replacing lost or irreparably damaged possessions. In January 2011, the Queensland Floods Commission of Inquiry was established to examine the flood events. A final report by the Commission, released in March 2012, found that the Wivenhoe Dam had been operated in breach of the manual that governs its operation It was found that the dam operators had failed to use rainfall forecasts in making decisions about dam operating strategies. While there has been recent speculation in the media regarding the accuracy of the flood maps released by Maurice Blackburn, the firm has confirmed that the maps will not be submitted as evidence in the matter. The class action is planned to be filed in April 2013, and it will be interesting to see how it progresses. Our February chuckle: We like to have a laugh at ourselves... It can be hard keeping a straight face as a court reporter... ATTORNEY: Now doctor, isn t it true that when a person dies in his sleep, he doesn t know about it until the next morning? WITNESS: Did you actually pass the bar exam? Proudly supporting the local community.

8 8 Macrossan & Amiet Leading the Way If you have any queries about any of the articles in this letter, please feel free to or phone (Mackay) or (Whitsundays) to speak directly with the author of the article. Contact us For further information about the services offered by Macrossan & Amiet Solicitors please contact your nearest office: Mackay Amiet House 55 Gordon Street Mackay QLD 4740 Ph Fax Whitsunday Suite 4 Whitsunday Business Centre 230 Shute Harbour Road Cannonvale QLD 4802 Ph Fax Proserpine 18A Chapman Street Proserpine QLD 4800 Ph Fax profile Monique Alyce Sheppard There is nothing quite like an argument. I am not talking of an all-fist-in brawl and long are the days where I could practice on my family, but arguing for what is right and what is fair is what attracted me to law. It s as simple as that. I grew up in Ingham and attended St Mary s Catholic College in Cairns for my senior high school years. There, I was fortunate to be awarded the dux in years 11 and 12 and went on to Study a Bachelor of Pharmacy at the University of Queensland. Although I looked forward to the smell of anatomy laboratories on a Thursday afternoon, I realised that my passions lay elsewhere. I completed my Bachelor of Laws with Honours at James Cook University in During my degree I firmly decided that being an advocate representing individuals was what I wanted to do each day and I was exceptionally grateful to be permitted to complete work experience with the co-ordinating Magistrate in Cairns. Upon completing my degree, I worked as an Associate to His Honour Judge Harrison in the District Court in Queensland which was an enlightening experience. The appointment for 12 months was a tremendous opportunity to observe predominately criminal trials, sentences and applications every day in various centres throughout Queensland. One particularly memorable experience was holding Court in the communities of the Cape where the ten seater plane had to manoeuvre rather tenuous landings on numerous occasions. Whilst working for His Honour I completed my Graduate Diploma Monique Sheppard in Legal Practice at the Australian National University in 2011 and I was admitted to the Supreme Court of Queensland at Cairns in November 2011 with the support of my family and friends. While I might not aspire to the political persuasions of William Garrow, nor seek to acquire the eccentrics of Rumpole of the Bailey (not to mention his hat) I do share a sense of what is fair for every person. Meeting the clients and being able to provide thorough advice so that they may make informed decisions provides me immense satisfaction. My main area of law which I choose to practice in is criminal law. I ensure the interests of every client who I meet when they are faced criminal offences whether traffic matters, assault complaints, sexual allegations, drug matters, manslaughter or murder. Removing client s uncertainties about our criminal justice system and listening to clients is how I enjoy to spend each day. I look forward to continuing my career with Macrossan & Amiet Solicitors and working with its team of professional staff who share a vast degree of experience.

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