Our firm has been able to assist people in crisis in order to minimise disruption to their lives. We have also been able to recover millions of dollars on behalf of our clients. Recent years have seen a gradual change in the more adversarial approach to disputes and the gradual introduction of alternate dispute resolution processes. MBBF has participated in following this trend by members of its legal team becoming accredited Mediators and being able to offer services not only to their clients but to other firms of solicitors to assist in alternate dispute resolutions.

It is always our firm’s philosophy to resolve disputes and to avoid, where possible, the Court process which can prove to be cumbersome, expensive and time consuming.

We wish you, your families and your associates a happy and prosperous new year and trust that when the need arises, we can be of assistance to you.

• Staying under the radar
• There is Merit in the MeriT Program       
• employees obligations to their employers    
• Butt it out!!!!!
• Do You take a walk on the wild side?
• Fiji, no longer paradise!!
• Salary Sacrificing – Child Support 
• Family Law – valuing  the family business
• The contracts you don’t know about
• The Law of Gaming
• Mediation and other ways to resolve differences with less pain and more gain

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On 11 March  2007 Australia’s  ratification of the Kyoto protocol came into effect. “Under Kyoto”, Australia  is obliged to limit its greenhouse gas emissions in 2008- 2012 to 108 percent of its emissions in 1990” (Media Release Senator The Hon Penny Wong, Minister for climate change & water 11  March 2007,  http://www.environment.gov.au/minister/wong/2008/pubs/mr20080311.pdf date  accessed  25 September 2009 ).

The Department  of Environment,  Climate  Change  and Water  (DECC) has been implanted to deal with amongst other matters the effects of climate change.

As posted on the DECC website “According to CSIRO and Bureau of Meteorology projections, the NSW community needs to prepare for higher  temperatures, less rainfall,  more  frequent  and  more  severe  droughts  and  more  extreme  storms. These changes are likely to have significant impacts on agriculture, water supply, settlements and infrastructure, natural resources, biodiversity and human health” (http://www.environment.nsw.gov.au/climatechange/index.htm,   date   accessed  25 September 2009).

•  “strategies to  reduce  emissions, encourage efficient use of water and promote  adaptation to climate change impacts

•  research to better understand the effects of climate change
on biodiversity and conservation planning

•  development of a resilient system of  protected  areas to help minimise the effects of climate change on the environment

•  the  Sustainability  Advantage   Program,  which assists  busi- ness to improve environmental performance”.

(http://www.environment.nsw.gov.au/climatechange/index.htm, date accessed 25 September 2009).
The NSW Government are in the process of developing a series of plans to tackle the issue caused by climate change

known as :

•  the NSW  Greenhouse Plan;

•  the NSW State Plan; and

•  Climate Change Action Plan.

The success of this action will be hard to measure, if  it is any indication of the dust particles found in Sydney today we still have some work to do.   Let us hope the Dust clears and we can return to a blue sky.

Recently the NSW Privacy Commissioner received a proposal from the NSW  Law Reform  Commission  for a private right of action which would allow individuals to sue for invasion of privacy, i.e. a statutory right of action would compliment information privacy laws which do not address all forms of privacy and intrusion. The NSW Privacy Commissioner must also balance the protection of privacy with other important public interests including freedom of expression by media organisations.   What you may see in the coming months are examples where the Courts would be required to take into account whether a privacy intrusion was “offensive to a reasonable person of ordinary sensibilities”.

Privacy NSW  currently receives about 3000 phone enquiries and 200 formal complaints each year.  If you have a privacy complaint about a NSW   public sector agency,  I.e. Local  Council, federal government department or private sector organisation or even your neighbour,  you  may  make  a  formal  complaint  to  the  Privacy Commissioner.   We would be happy to  discuss these matters in further detail with you at any time.

The program has been in existence for a number of years and it is only recently that statistics have been published which demonstrate what a significant impact it is having in the drug/crime cycle which has been plaguing our society for some time.

The essence of the program is to deal in a therapeutic rather than a punitive way with parties that are charged with drug related crimes. A person charged with a drug related crime is generally brought to the Magistrates Court and consideration is given at that point in time even before a plea is entered as to whether or not the Defendant would be suitable for admission to the Merit Treatment Program.

The program itself is typically 3 months long and Directions are made which include the granting of bail. For a person to be eligible for entry into this program,  the Courts must give consideration to:

A.  Whether the Defendant is suitable to release on bail;

B.    Whether the Defendant has a demonstrable drug problem (not including alcohol);

C.     Whether the Defendant will Consent to entering into a Drug Treatment Program;

D.    That the offence does not relate to physical or sexual violence or matters heard in the District Court (more serious drug matters);

E.   That the Defendant is deemed suitable for drug treatment and has a treatable problem;

F.     That the Magistrate needs to approve participation in the program.

i.  Detoxification;

ii. Methadone and other Pharmacotherapy’s;

iii. Residential  Rehabilitation;

iv.    Counselling;
v.     Case Management with support from welfare. At the conclusion of the program the report is prepared and referred back to the Presiding Magistrate  who will take  into consideration the recommendations made in the report.

The statistical evidence recently released shows that only  4.1% of Defendants who entered into the Merit  Program went to jail as opposed to 21.6% of Defendants  who did not enter into the pro- gram.  Due  to the program’s success consideration is now being given to include alcohol related offences in addition  to the drug offences.

In recent times our firm has been asked to assist families whose relatives have fallen victim to the drug crime  cycle.   We have been able to assist them and direct them into the Merit  Program which has resulted in some instances in a  criminal conviction being avoided and perhaps more importantly a step towards total rehabilitation.

Such obligations can be defined as one where an employee should not act in a way that puts his/her own interests and the interests of his employer in conflict.

Unfortunately it is common for an employee to glean special information from his or her employer and then use it for their personal benefit and to the detriment of the employer.  Examples may be employees leaving their employer and setting up a business in competition or alternatively  perhaps assisting their employer’s competitors for some reward.

In a recent case referred to as Able Tours Pty Ltd v Mann  [2009] [WASC 192] the court was required to consider a certain  fact situation involving an employee’s alleged breach of duty to  his employer.  Able Tours was a company which manufactured  tour buses.  Mr. Mann  was employed by Able Tours as an Operations Manager.

One  of Able Tours customers wished to place orders for the pur- chase of various buses with Able Tours.  Able Tours were unable to provide the buses within an immediate period of time. Mr. Mann who was unhappy with his salary with Able Tours eventually set up a business in competition and was then able to negotiate directly with this particular customer and obtain orders from the customer to the detriment of his former employer.
The court was required to consider three main issues namely:

1.  The nature and scope of Mann’s employment with Able Tours;

2.  Whether or not the information that Mann acquired dur- ing his employment was confidential;

3.     Whether or not he breached those duties.

The court found that Mann  owed a fiduciary duty to Able Tours and that Mann  had used and exploited the information about Able Tours when he setup his own company and supplied buses to an Able Tours customer.

In conclusion this case reinforces other cases in the area where the law considers there is a strict ethic regarding breaches of fiduciary duties. The courts have demonstrated that they are quite prepared to find employees liable for breaches of  fiduciary duty and for disloyalty to their employers.  There is a high expectation of loyalty in this area.

An example of how to avoid some of the issues which arose in this case as an employer would be to enter into an employment agree- ment with significant employees in your  organisation.   Such an agreement should clearly define information which is considered confidential and should restrict the employee opening a business in competition with your company in certain circumstances.

Drivers will be banned from smoking in cars carrying children under the age of 16 or face $250  on the spot fines under  new tobacco  laws  giving  NSW   some  of  the  toughest  anti-smoking regimes in the world.

NSW will also become the first state in Australia, and one of only three jurisdictions in the world, to force tobacco products in super- markets and retail outlets under the counter and out of sight with a state wide ban on the display of cigarettes.

Professor Simon Chapman, from Sydney University’s School  of Public Health, said: “This will put Australia  once again at  the forefront of the world. There are only three other  nations to do something similar.

Legal reasons

The large amount of evidence on the harmful effects of passive smoking gathered over the last two decades has led to a number of landmark legal cases. There have been more than 35 legal  cases in  Australia   and  overseas  in which people were compensated for damage to their health caused by passive smoking.

In October 2001, the case of  Marlene Sharp v Port Kembla Hotel and Port Kembla RSL Club  emphasized the danger of prolonged exposure in the workplace. This litigation became the first case of cancer of the larynx proven in a court of law to be associated with passive smoking in the workplace. Other  significant cases led to convictions  under Trade Practices and Disability  Discrimination legislation.

Owners  or licensees of establishments remain at risk of common law legal action if smoke causes harm to their employees or visi- tors.

What does the law say about smoking in public places?

The growing health evidence and substantial numbers of legal cases associated with exposure to environmental tobacco smoke (ETS) have motivated an increasing number of governments throughout the world to pass legislation aimed at reducing exposure to ETS in indoor public places.

All Australian  states and territories have laws that ban smoking in public places defined as enclosed including restaurants, shopping centres, educational institutions and entertainment venues.
The NSW Smoke-free Environment Act and amendments

Under the NSW Smoke-free Environment  Act   2000 and subsequent amendments  ( Smoke-free    Environment  Amendment     Act      2004 and the  Smoke-free  Environment  Amendment  [Enclosed   Places] Regulation   2006  ), all areas of hotels, clubs, and nightclubs that are open  to  the general public and def ined  as  enclosed  must be completely non-smoking. The smoking ban does not cover outdoor areas of hotels and restaurants such as beer gardens and al fresco dining tables.

The definition of an enclosed public place

The definition of an enclosed public place is contained in the Smoke-free  Environment  Amendment   [Enclosed  Places] Regulation2006. It is summarised as follows:

“a public place is considered to be substantially enclosed if the total area of the ceiling and wall surfaces of the public place is more than 75 per cent of its total notional ceiling and wall area. In determining the total area of the ceiling and wall surfaces, any door, window or moveable structure that is, or is part of, a ceiling or wall is taken to be closed whether or not the door, window or structure is open unless (in the case of a door or window) it is locked fully open and the total area of all such doors and windows do not make up more than 15 per cent of the total notional ceiling and wall area”.

Enforcement of the Smoke-free Environment Act

Compliance   with  the  Act  is  monitored  by  the  NSW    Health Department’s Environmental Health  Officers.

Proprietors have a legal obligation to ensure that patrons do not smoke in non-smoking areas of their venues. If a patron is smok- ing, proprietors must ask them to stop  or move outside. Recent amendments  to  the  Liquor Act  1982  [section  103(1)(d1)], the Registered Clubs  Act 1976  [section 67A(1)(d1)], and the Casino Control Regulation 2001 [Schedule 6, clause 103(d1) now enables venues to exclude a patron from the venue if that person smokes in a smoke-free area.

•    For patrons, the current maximum penalty for a person smoking in a smoke-free area is $550.

•    A proprietor of a venue is guilty of an offence if a patron smokes in a smoke-free area. The maximum for an indi- vidual is $1,100; for a body corporate $5,500.

•    Proprietors, licensees, registered club secretaries, and managers who can also be fined if they fail to display no-smoking signs. The maximum penalty is $550 for an individual, and $2,750 for a body corporate.

•    Failing to comply with the directions or instructions of an inspector can also result in a penalty of up to $550.

However the question is will these new laws help to reduce smoking rates or will the minority group namely smokers continue butting their cigarettes out?

The jaywalking problem is related to years of what appeared to be a myth that lulled people into a false sense of security. Suddenly,  enforcement has come into play and new fines have arisen making the unheard penalty an added feature to a slap on the wrist. There will be no customary warnings being handed out that allowed the common offenders to get away with their impatient pause for the flashing green pedestrian light to appear.

In all  seriousness  jaywalking  has  caused  46  pedestrian  deaths across NSW  this year and police say they’re fed up with  pedes- trians who zig-zag in and out of traffic when  crossing the road, making themselves a hazard to drivers.

Statistics show on average, the worst day of the week was said to be Wednesday and the worst time 4pm  to 6pm. Males accounted for 64 per cent of these deaths.

Jaywalking hot spots distinctively include the buzzing CBD area with well known streets including Druitt, King, Kent,York, Castlereagh and George street, where many workers and visitors dangerously dodge cars, taxis and buses and walk against red flashing pedestrian lights.

The Pedestrian Council of Australia  says jaywalking in the CBD has reached epidemic proportions. Its chairman, Mr Harold Scruby,  criticised the lack of police enforcement and called  for council rangers to have the power to fine jaywalkers.

So far this year, 43 pedestrians have been injured in vehicle accidents in central Sydney. City  Central  Police Superintendent Donald   Graham   conceded  that  jaywalking  was  a  problem, but  said  it  was  more  of  an  annoyance  than  a  critical  issue.

“It is not a priority, but we do have traffic management strategies such as regular police foot patrols,” he said.

Police said they would continue their tough stand because pedes- trians were to blame for 54 per cent of pedestrian deaths on State roads this year. Police have set up around the CBD to crack down on the delinquents who take a walk on the wild side.

If you do decide to take a walk on the wild side remember it may just cost you!

Beware the uniforms are out watching.  Disregarding the red flash- ing lights will not only be a warning not to cross but may well lead to an unexpected $56.00 on the spot fine if you get caught!

He   claimed that he attended provincial meetings and raised issues in  opposition to the Government  Military  Council  and when he attended Parliament and presented his views of community issues and concerns, he was threatened by senior military officers  and warned not to agitate against the Government.    The  Applicant  claimed that he continued with his community work and develop- ment programs and attended district meetings where he criticized the Military regime.  He   claimed that he was reported and that he was called before the Military Council twice and warned to cease agitating and criticizing the Military Government.

The Fijian citizen claimed that because of this intimidation and threats made directly to him and the implied threats to his family, he had chosen self-censorship in relation to his political opinions. He    claimed that if he returned  to Fiji,  he would be expected to become involved in his  local community again to resolve issues and that he would become a target for the Government.   He  feared that  Government  Agents  would report him to the Military  and that he may be arrested, detained, taken to a camp and mistreated. Additionally the Applicant  claimed that as a consequence of this intimidation, he had been denied the freedom to speak out about his opposition to the military regime.
Held - The decision under review was set aside.

The Tribunal found the Applicant  to be a credible  witness. The Tribunal  accepted  country  information  which  indicated  Fijians who opposed the military regime and political agenda were singled out and warned to desist from  their  activities and that Fijians who spoke out against the military regime faced a real chance of harassment, threats and arrest.  The Tribunal was satisfied that the Applicant  had a political profile, that he was the target of threats in the past and that he would be in the future, if he continued with his strong commitment to local welfare issues.

The Tribunal found that the Applicant’s  loss of freedom to speak out as a consequence of intimidation and threat of arrest, deten- tion and being taken to a camp amounted to persecution involving serious harm and systematic and  discriminatory conduct. The Tribunal was not satisfied that the Applicant  could safely relocate in Fiji  because  of  his political profile and the current situation there.

Accordingly,  the Tribunal was satisfied that the Applicant  faced a real chance of serious harm amounting to persecution from the military for reasons of his real or imputed political  opinion and that he had a well rounded fear of persecution for a Convention reason.

The above article is a summary of the recent Refugee  Tribunal decision, Precis.

•   New income tests will be used when calculating tax offsets and obligations.

•   Two new items will be included in your income for income testing purposes;

o  reportable super contributions.
o  total net investment losses.
•  What are reportable super contributions?
•  Reportable super contributions include your:

o   reportable employer super contributions (RESC).
o   personal deductable contributions.
•   Salary sacrificed super contributions may be included as RESC.

The above is important for all employers as they must now show on their employees’ pay slips, any income that the employee is salary sacrificing.  This amount will then be clearly identifiable by the Child Support Agency  and thus will be added to the employees’ taxable income. These measures will affect a range of Centrelink, Family Assistance  Office and Child Support payments.

The Tax Office has a helpline to let you know about your rights, that  is  www.ato.gov.au  or  telephone  132 861 for  personal  tax enquiries.

Commercial  Valuation requires the value of the business to be determined based on certain parameters generally defined as the price could be negotiated in an unrestricted market between a knowledgeable, willing but not anxious buyer and a  knowledge- able, willing but not anxious seller acting at arm’s length.

Small businesses are generally conducted by a principal  person. The real value of the business aside from some equipment or stock is the principal person who would not be operating the business in the event that it was sold due to a family break up. In those circumstances using the conventional formula for valuations would lead to the business being almost worthless.

The Family  Court  has considered this question from almost the time of its inception in 1975. The case of Reynolds in 1977 was one of the first major family law cases where the issue of the valu- ation of the family business was considered.  The Court said that:

“Present commercial capital value of shares in a Proprietary Company  may not reflect their value to the spouse who either has control after the divorce or stands ultimately to benefit from them”.

The approach taken in the matter of Reynolds was followed in a series of cases over the next ten to 20 years and developed the  principle that valuations of family businesses in Family Court proceedings need to consider the value of the business to the particular person who controls it not necessarily its value on a com- mercial basis  (although this can occur from time to time).

The result is that businesses which cannot be sold on the market place are still considered to have a real and significant value in the Family Court context.

We are often faced with comments from an opposing party to the effect that “my  busi- ness is worth nothing”.  This often proves not to be the case and results in the value of the matrimonial pool  of assets being increased significantly.

It is always appropriate to obtain advice from experienced and specialised family  lawyers when negotiating these settlements.

Have  you ever stopped to think when you buy a travel pass from the newsagent or take a ticket at a parking station what all that little writing on the back is all about? You   may have heard the  term “fine print”. For many of you it will raise images of tricks and hidden obligations that may come back to haunt you in the future. The fine print often refers to other  terms and conditions not included on the ticket.   Given  the right set of circumstances  these “term and conditions” will also form part  of an agreement between you and the entity providing the services, transport or car parking.

The principle of these so called “ticket cases” is that where a party, such as a transport provider, provides a ticket, that is an offer of contract. And the terms contained in that ticket form part of the offer. The mere decision of that party (you) to keep the docu- ment, or ticket, is taken as consent to the contract and the terms and  conditions referred to therein; McCutcheon  v  David  MacBrayne Ltd  [1964]   1 ALLER 430.

There are exceptions to this rule, however. You must be given reasonable notice that the ticket is a con- tractual document. This is usually done by notations on the back of the ticket, such as, “important notice” or “terms of travel” etc. Likewise as the acceptance relies upon your failure to reject the ticket, where it is  not possible to reject the ticket or negotiate the terms, then there may be no contract held in those circumstances.

Such  an  instance  occurred  in  Thornton  v  Shoe Lane Parking Ltd [1971] 2 QB 163  where Thornton had a claim in personal injury rejected  by Shoe Lane  Parking on the basis of an  exclusion  clause contained in the terms on the  back of the parking ticket.  When Thornton had pulled up to the parking station it was not until inside the entrance to the car park that a ticket was issued by an automatic machine. It was too late at that point in time for Thornton to reject the ticket and leave the parking station. In those circumstances the court found Thornton had no liability to reject or negotiate the terms of the ticket. Hence  the exclusion clause did not apply..

Likewise  in  the  infamous  case  of  Baltic Shipping  Company  v Dillon (The  Mikhail Lermontov) (1993) 176 CLR  344 Dillon  had paid the appellant $2205 in advance for a 14-day  cruise in  the South Pacific on the Mikhail Lermontov. The ship sank on the tenth day, and Dillon lost her possessions and suffered personal injuries. She had paid the fare for the trip upfront, well before receipt of her ticket.  It was held in that case that the terms and conditions in the ticket, including an exclusion clause, would not apply because the ticket was not issued until some time after the fare had been paid.

1. Would a reasonable person in your position have known there was writing on the ticket when you received it?

2. Would a reasonable person in your position have known it referred to any special terms or conditions and;

3. Were the terms and conditions brought to your attention?

In any event, the next time you board a bus, hop on a ferry, check your luggage in at the airport or park your car, take a few moments to think what it is that you are agreeing to ... just by taking a ticket. As the saying goes, “you should always read the fine print”. It may save you a whole lot of trouble and expense later on.

It may surprise you to learn that pursuant to legislation such as the NSW Unlawful Gambling Act of 1998 all contracts or agreements, whether oral or in writing by way of gambling or wagering are void and no action can be brought or maintained in any Court to recover a sum of money or valuable thing alleged to have been won upon a wager.   Fortunately for  those who do like the occasional flut- ter, there are exceptions to the rule, including betting on the TAB (Totaliser Agency Board) in NSW and the odd “two-up” competi- tions on Anzac Day.

An interesting peculiarity in the law arises in respect to betting with the TAB. This does not technically involve “wagering or gam- ing” pursuant to the legislation.  Authority dating back as far as 1878 (Thacker v Hardy (1878) 4 QBD 685) defines the essence of a gaming or wagering contract as being where one party will win and another party will lose upon the occurrence or non occurrence of some future event.  An organisation such as the NSW TAB, in it’s normal course of business, runs no risk of losing. Like a lot- tery it will pay out a portion of the amounts bet or wagered on any particular event or occurrence.
Another peculiarity in the law is that gaming and wagering contracts whilst being unenforceable, are not illegal.  This may appear to be a moot point given there is no ability to enforce the terms of any such agreement.  However it may become important in situations where there are collateral contracts to the gaming and wagering contract, such as contracts for brokerage or division of winnings.  Any col- lateral contract which does not otherwise exhibit the character of a gaming or wagering contract will be enforceable at law and not tainted by illegality; Fischer v Davis (1946) 63 WN  (NSW) 218. For example a broker would be entitled to pursue any outstanding commission in respect of the broker/client relationship, despite the fact that any wagering done by the broker on the principal’s behalf may have been void.   In respect of an agreement for the division of the winnings the parties would have rights against each other in respect of the division of any winnings received, again despite the wagering contract having been void at law.

Apart from the important need to give careful consideration to your financial capabilities before laying a bet, consideration should also be given to the risk of doing so with a person of  entity you are unacquainted with. It has been said, “the joy to winning is in the receiving”.  So best of luck and remember to bet with your “head”, and the advice of your lawyer where required

Life and its complexities have developed in every way and in every area of relationships and business. As a firm we have maintained our commitment to searching for ways to solve  problems in the quickest and most economic way. We have continued developing and refining our skill:

-    Victor Berger  has been accredited by mediation train- ing and referral organisations ACDC  and LEADR and has been an executive member of the New South Wales Chapter  of LEADR. He    has concluded his Masters  in Law  and in that has studied International Commercial Dispute Resolution  and Advanced Mediation;

-    Harry Freedman has been accredited by ACDC and as a Family Law mediator.

Both continue ongoing education and we have been instrumental in bringing judicial officers together to discuss expanding the role of mediation in the court system.

The result has been that:

-    Victor Berger has used his skills in many areas including commercial and business disagreements;

-    Harry Freedman has done so in Family Law  matters including matters referred by colleagues to mediate between couples for whom they act.

The great benefit of mediation has been increasingly recognised across almost every industry and social group. State and Federal Attorney Generals  now have this high on their agenda as a means of providing speedy and cost effective justice. The use of media- tion is  found in religious, business, unions, military services and not least community, social organisations and indigenous groups. Through mediation as distinct from proceedings decided in court some significant goals and achievements are parties being guided to the solution voluntarily and without it being imposed by another person and relationships are preserved. All that on top of consider- able less time and expense being saved.

Mediation is available from a vast variety of people with an extraor- dinary range of skills, the majority having no legal  training. We have had the opportunity to study with and exchange knowledge and experiences with the widest range of such people. In our view legal training is a very important ingredient in the majority of areas especially as such  training allows the lawyer to quickly identify authentic obstacles to negotiations; areas of genuine disagreement but based upon misunderstood principles; and to offer solutions to be considered including non-legal, such as services from medical and social  practitioners and organisations. In our experience the reality is that in the majority of cases parties in disagreement are comparing their potential solution with what some judicial body may deliver and need to be reminded of the pitfalls and uncertain- ties of proceedings as well as the risks as to cost and delay.

We are glad to receive any enquiries, free of cost, as to the potential for resolving disagreements of any kind including such as you may see as not involving any legal questions.”

Milne Berry Berger & Freedman
Prides itself on Having a Multicultural Philosophy
Various members of our staff speak the following languages:

Hindi, Malayalam, Tamil, Hungarian, Hebrew, Lebanese, French, Croatian and Italian.