•  Shareholders, first or last priority of public company boards?
• Conflict of interest
• Are you acting in good faith?
• Trespassing - What does it mean?
• Client legal professional privilege and confidentiality clauses in contracts
• Are you being chased again for the debt you paid?
• CTTT:Consumer, Trade and Tenancy Tribunal
• Social events at MBBF

Mr  Cesan  and  Mr  Rivadaria  were  charged  under  s  11.5  of  the Criminal  Code  1995  (Cth)  with  and  convicted  of ”conspiracy  to import into Australia a commercial  quantity of the drug known as ecstasy”.

Judge Dodd was accused  of sleeping  through  parts of the trial at some points “:nodding off” while at other times “snoring”.

The  Defendants  appealed  to the  NSW  Court  of Criminal  Appeal

Grove   J  could   not  see  a direct  link  with  ”intermit- tent episodes of inattention” and “any omission, misdi- rection or error” alleged by the  Defendants.   (paragraph 176 Cesan v Director of Public Prosecutions (Cth); Mas  Rivadavia   v  Director of Public Prosecutions (Cth) [2007] NSWCCA 273) His Honour observed that there had not been “any suggestion   that   the   judge

The court comprising of Basten JA, Grove and Howie JJ held by a majority of two to one (Bastan JA dissenting) that the appeal against conviction should be dismissed, however they allowed an extension of time for the appeals against sentence.
“missed”  anything  relevant  about  which  he should  have  made  a ruling or given some guidance or direction to the jury” (paragraph
178 Cesan v Director of Public Prosecutions (Cth); Mas Rivadavia v
Director of Public Prosecutions (Cth) [2007] NSWCCA 273)

He  went  on  to  say  that  “[Judge  Dodd]  was  always  physically present. The evidence shows that he returned from sleep either by the operation  of his own body mechanisms  or by the provocation provided by tapping or the creation of noise by other means such as clearing of throat or movement of books and papers. It is a false analogy to describe him as being absent and no useful guidance can be gained from cases such as Bateson v State of Texas 1904 46 Tex Cr R 34 where a judge left the court during the address of counsel to the jury” (paragraph 194 Cesan v Director of Public Prosecutions (Cth);  Mas  Rivadavia  v  Director  of  Public  Prosecutions   (Cth) [2007] NSWCCA 273)

Judge Dodd retired in 2005.

The views expressed  by the Court leads to the inference  that the trick to Justice in Australia is to retain more entertaining advocates in proceedings. Is this justice –You be the judge!

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•  performance benefits which encourage management based upon maximising the reward from benefits rather than overall benefit to the company and its shareholders;
•  extraordinary payments even where patently the recipient has contributed to considerable diminution in share value. We have recently seen rare and paltry refusal by some directors to accept or to repay some of such payments likely because some embar- rassment;
•  payout of extraordinary sums for members of such companies for early termination of their term. How is the prospect of such an event was not suitably catered for;
•  the merry go round of appointments and many holding directorships of multiple boards. One would have to consider how such persons are able to give adequate and meaningful time to their duties;
•  the extent to which independent director are truly independent and
•  companies being penalised by ASIC and/or ACCC for improper conduct which most likely can only have occurred through the direct or indirect knowledge, approval, or encouragement of principal board members. Why are not the relevant members of the company liable for such payments.

It does not take a lot of time to recognise some prominent examples of public companies to which one or more of the above applies.

It would not be surprising if claims were brought against legal or other advisers for not having foreseen such expenditure by a company if there such expenditures that the majority of shareholder recognised that payments such as the above represented a diminution of the assets of the company and indeed profit for the shareholders.

Certainly we hear much about the need to encourage high quality leadership of companies and the cost and reward that should provided that may be valid however masks the increasing abuse the best interests of everyone, not least the shareholders.

Australia has among the highest number of population who are holders of shares in public companies. Indeed the vast majority of retirees depend upon such investments for the 20-30 years of their retirement. They have the power to call for fairness and accountability. There will be no change for the better unless their voices are heard.

We fully support his views as they apply to other than lawyers. He has drawn a long bow in lumping lawyers into the unquestionable failure of governments to protect the public, especially those who allow others to invest and/or manage superannuation funds. The article of Mr. Gittins essentially points at auditors. There is it seems, if not intentional then close to it, great preferring of self interest by such investors and/or managers. This impression is perpetuated by the extent to which there has been creativity in avoiding the spirit of the principle of absence of bias towards sources of personal ain or benefit. Indeed there is model to follow which has withstood the test of time which is governs the legal profession. Further more as to the suggestion that lawyers promote legal action from which they may profit ignores the provisions of s.345 of the Legal Profession Act restrictions on commencing proceedings without reasonable prospects of success the breach of which may result in the relevant practitioner the breach of which can in result in such lawyer being liable for the costs of such proceeding. Furthermore a principal obligation of a lawyer, not often understood and especially its importance and effect, is that lawyers have primary responsibility to the court paramount to their duty to their clients. This has been most recently recognised in cases involving Telstra where the High Court has expounded on in-house lawyers cannot claim professional privilege as to advice they give to their principal unless they can demonstrate that the principal recognises that such counsel has paramount duty to the court.

No other business or profession is so aware of avoiding a possible conflict of interest as the legal profession. More so the rigour with which the courts, the Law Society and the Legal Services Commission scrutinise whether members of the legal profession have observed the principles of absence of conflicts of interest. The attempt by Mr. Gittins at equivalence of the legal profession to the other businesses and professions is misleading and does not bring credit to him.

There are, of course, exemptions to these general rules and certain categories of people are entitled to enter onto your property without your permission.  These include:-

(a) The police provided they have a warrant or are making an arrest or are attempting to stop a breach of the peace.
(b) The fire brigade in the case of emergencies.
(c) Licensed surveyors with a genuine need to carry out a survey.
(d) Pest eradicators engaged by an appropriate body such as the local council.
(e) RSPCA officers provided they have a reasonable belief that someone is being cruel to an animal on your property.
(f) Authorised utility employees.
 
A further exemption to the general rule of trespass provides that certain people have an implied right to enter onto your property.  They
may include:-

(a) Uninvited guests;
(b) Sales people;
(c) Delivery people; or
(d) Other similar people.

Prima facie they are allowed to entered onto your land, however, if you ask them to leave and they fail to leave within a reasonable time they will be considered to be legally trespassing.

To foster this relationship between lawyers and clients, the common law and legislative bodies have developed, over time, the policy of confidentiality of such communications. Today, this is reflected in an overriding duty of confidentiality upon lawyers with respect to their clients and Legal Professional Privilege as contained in the Common Law and the various Evidence Acts. Whilst confidentiality has a relatively broad application to such communications, Legal Professional Privilege is a much narrower concept allowing a client to claim privilege over certain communications and documents, so as to avoid their production in legal proceedings.

The nature, scope and impact of confidentiality and Legal Professional Privilege is too extensive to properly explore here, but they are concepts fundamental to the proper operation of the legal process. Hence in the event you have any doubt as to your rights and protec- tions under the law in respect of such matters, you should seek legal advice at your first opportunity.

Similarly, confidentiality clauses are a common element of employment contracts, distribution agreements and many other forms of com- mercial agreements. These create a contractual right to confidentiality. Whilst generally, and with the exception of some governmental agreements, these do not create a direct right to or risk of criminal sanction for breach, they will in most instances create either a right to seek performance of the clause or alternatively damages for it’s breach.

Obviously special consideration of such clauses needs to be made on the termination or variation of such agreements. Such clauses will usually, at least in part, provide for continuing obligations post the termination of the contract. In the event you are in any doubt as to the impact of such clauses, or have the slightest suspicion that an activity may bring you into breach of such a clause it is recommended that legal advice be sought at the earliest appropriate time.

However if you are applying for a dividend and being an unsecured creditor who has recently acquired a debt, you are entitled to “step into the shoes of” the primary creditor and claim for the entire amount outstanding regardless of what they have in fact paid for. The obvious limitation is that they cannot seek to claim for more than the debt out- standing as at the date of bankruptcy.

As is evident, as a consumer debt continues to increase, it is important for you as individuals or acting as or on behalf of entities to seek right legal advice when understanding your position and available options.

The CTTT is divided into 8 divisions.

Tenancy Division

It has a $10,000.00 monetary limit examples of issues that can be dealt with are, if a tenant is in arrears with rent or per- haps your landlord refuses to carry out necessary repairs or if there is a dispute regarding the refund of the retail bond.

This division is governed by the Consumer Claims Act 1998 and can award a sum of up to $30,000.00 but you must be sure to make your claim within 3 years from the date of sup- ply of goods of services in New South Wales for example perhaps you have suffered dry-cleaning damage or you’re not happy with a hair cut.

Motor Vehicles Division

Again there is a $30,000.00 monetary limit and you must lodge your application within 3 years from the date of supply or services in
New South Wales. This division includes claims regarding car repairs and new cars which do not function as the vendor has claimed.

The Home and Building Division

The Home and Building Division is an important division in the CTTT and has a monetary limit of $500,000.00. Claims lodged in the Home and Building Division deal with renovations carried out or concrete driveways installed or the installation of swimming pools just to name a few.

The Commercial Division

The Commercial Division deals mainly with the Consumer Credit New South Wales code and the consumer credit and New South Wales Act 1995. Examples of the issues which come under the jurisdiction of the Commercial Division are Credit contracts, Seller/ agent’s commission and mortgage contracts.

Strata and Community Schemes Division

You can apply if you have problems with a neighbours pet in your strata unit or if there is excessive noise.

Residential parks Division

This has an unlimited monetary jurisdiction and hears disputes over rent increases and the provision of amenities.

Retirement Villages Division

This is another division with an unlimited jurisdictional monetary amount and deals with provision of amenities and statements of pro- posed expenditure.

Much like the Local Court the parties who are in dispute can attend conciliation which is an informal process where the issues in dispute are generally narrowed, however hearing will proceed if the parties are unable to reach an agreement. Hearings at the CTTT are much faster than through the Court system and your matter will be heard within 28 days from the filing of your application. Normally you have to attend the Hearing unless a representative attends, however, under special circumstance in which a lawyer can be appointed for example, if the matter is for an amount over $25,000.00 in the home building division or over $10,000.00 in the general division or if it is generally considered necessary by the Tribunal there is a dispute and the amount is less than $10,000.00 you will not be able to be represented. For more information please contact our offices.